SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
November 20, 1995
MIRAGE RESORTS, INCORPORATED
____________________________________________________________
(Exact name of Registrant as specified in its charter)
Nevada 1-6697 88-0058016
____________________________________________________________
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
3400 Las Vegas Boulevard South, Las Vegas, Nevada 89109
____________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(702) 791-7111
_____________________________________________________________
(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS.
On November 20, 1995, the Registrant commenced a
commercial paper program which provides for the
issuance, from time to time, of up to $350
million principal amount of unsecured short-term
notes outstanding at any one time (the "CP
Notes") co-issued by the Registrant and certain
of its principal subsidiaries. The CP Notes
will be offered and sold only to institutional
accredited investors through the Registrant's
Placement Agents, Morgan Stanley & Co.
Incorporated, BA Securities, Inc. and CS First
Boston Corporation. The Issuing and Paying Agent
for the CP Notes is BankAmerica National Trust
Company. The CP Notes are backed by up to $350
million of credit available under the
Registrant's existing $1 billion bank credit
facility. On November 20, 1995, the Registrant
issued and sold $15 million principal amount of
CP Notes, with maturities ranging from seven to
32 days and a weighted average effective interest
rate of 6.02% per annum.
On November 20, 1995, the Registrant and its
indirect wholly owned subsidiary completed the
acquisition of several parcels of land,
aggregating approximately 18.2 acres, at the
center of the strip in Biloxi, Mississippi where
Interstate 110 meets the Gulf Coast beachfront.
The total purchase price for the site was
approximately $27.7 million, including cash and
117,647 shares of the Registrant's Common Stock
valued at $31.875 per share.
Subject to the receipt of required licenses and
permits, the Registrant intends to develop a
major casino-based destination resort on the
site. The planned facility is envisioned to be
a luxurious high-end resort featuring a casino,
approximately 1,200 hotel rooms and various
other amenities. The project is in the early
design phase, but the Registrant anticipates
that the total project cost may approximate $300
million and that the facility will open in late
1997. Development of the project will be funded
using the Registrant's bank credit facility.
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
4.1 Issuing and Paying Agency Agreement, dated
November 13, 1995, between the Registrant, THE
MIRAGE CASINO HOTEL, Treasure Island Corp.,
Bellagio, GNLV, CORP. and MH, INC., as issuers
(the "Issuers"), and BankAmerica National Trust
Company, as issuing and paying agent (without
exhibit).
4.2 Form of Commercial Paper Note of the Issuers.
99.1 Commercial Paper Dealer Agreement, dated
November 13, 1995, between the Registrant and
CS First Boston Corporation (without exhibits).
99.2 Commercial Paper Dealer Agreement, dated
November 13, 1995, between the Registrant and BA
Securities, Inc. (without exhibits).
99.3 Commercial Paper Dealer Agreement, dated
November 13, 1995, between the Registrant and
Morgan Stanley & Co. Incorporated (without
exhibits).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly
authorized.
MIRAGE RESORTS, INCORPORATED
(Registrant)
Date: December 4, 1995 By: BRUCE A. LEVIN
BRUCE A. LEVIN
Vice President and General Counsel
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ISSUING AND PAYING AGENCY AGREEMENT
November 13, 1995
BankAmerica National Trust Company
One World Trade Center
New York, New York 10048
Attn: Corporate Trust Division
Re: Mirage Resorts, Incorporated Commercial
Paper Program
Ladies and Gentlemen:
This letter (the "Agreement") sets forth the
understanding between you, on the one hand, and Mirage
Resorts, Incorporated (the "Company") and THE MIRAGE
CASINO-HOTEL, Treasure Island Corp., Bellagio, GNLV, CORP.
and MH, INC., each of which is a direct or indirect wholly
owned subsidiary of the Company (collectively, the "Co-
Issuing Subsidiaries" and, together with the Company, the
"Issuers"), on the other hand, whereby you have agreed to
act (a) as depositary for the safekeeping of certain notes
of the Issuers which may be issued and sold in the United
States commercial paper market (the "CP Notes"; such CP
Notes when issued in book-entry form being hereinafter
referred to as "Book-Entry CP Notes" and when issued in
the form of certificated promissory notes being
hereinafter referred to as the "Certificated CP Notes"),
(b) as issuing agent on behalf of the Issuers in
connection with the issuance of the CP Notes, (c) as
paying agent to undertake certain obligations to make
payments in respect of the CP Notes and (d) as depositary
to receive certain funds on behalf of the Issuers, as set
forth herein. Hereafter, at the written request of the
Issuers if they so elect, you will execute a Letter of
Representations (the "Letter of Representations", which
term shall include the Procedures referred to therein)
with the Issuers and The Depository Trust Company ("DTC")
and a Certificate Agreement (the "Certificate Agreement")
with DTC which establish or will establish, among other
things, the procedures to be followed by you in connection
with the issuance and custody of Book-Entry CP Notes.
This Agreement shall remain in effect from its date of
execution until termination for all other CP Notes issued
from this day forward.
This Agreement will govern your rights, powers
and duties as such depositary, issuing agent and paying
agent for the CP Notes and no implied covenants and
obligations shall be read into this Agreement or any other
agreement against you.
Exhibit 4.1
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1. APPOINTMENT OF AGENT. The Issuers hereby
appoint you and you hereby agree to act, on the terms and
conditions specified herein and in the Letter of
Representations and Certificate Agreement, as depositary,
issuing and paying agent for the CP Notes. The CP Notes
will be sold through such commercial paper dealers and-or
placement agents as the Company acting for itself and on
behalf of the Co-Issuing Subsidiaries shall have notified
you in writing from time to time (collectively, the
"Dealers"). The Dealers currently are Morgan Stanley &
Co. Incorporated, CS First Boston Corporation and BA
Securities, Inc. The Company acting for itself and on
behalf of the Co-Issuing Subsidiaries shall notify you of
the names and addresses of any additional Dealers and
shall notify you of the elimination of any Dealers. For
purposes of this Agreement, the Company will act for
itself and on behalf of the Co-Issuing Subsidiaries.
2. SUPPLY OF CP NOTES.
(a) The Company will from time to time furnish
to your department that handles commercial paper (the
"Commercial Paper Department") located at One World Trade
Center, New York, New York, an adequate supply of CP
Notes, which shall be Book-Entry CP Notes and-or
Certificated CP Notes, as the Company in its sole and
absolute discretion considers appropriate. Certificated
CP Notes shall be in substantially the form attached as
Exhibit A to this Agreement, shall be serially numbered
and shall have been executed by manual or facsimile
signature of an Authorized Representative (as hereafter
defined), but shall otherwise be uncompleted. Book-Entry
CP Notes shall be substantially in the forms attached to
the Letter of Representations and shall be represented by
one or more master notes ("Master Note" or "Master Notes")
which shall be executed by manual or facsimile signature
by an Authorized Representative in accordance with the
Letter of Representations.
(b) Each Certificated CP Note or Master Note
delivered to you shall be accompanied by a letter from the
Company, as the case may be, identifying the Certificated
CP Note or Master Note(s) transmitted therewith, and you
shall acknowledge receipt of such Certificated CP Note(s)
or Master Note(s) on the copy of such letter or pursuant
to some other form of written receipt deemed appropriate
by you at the time of delivery to you of such Certificated
CP Note(s) or Master Note(s). Pending the issuance of
Certificated CP Notes as provided in Section 4 hereof, all
Certificated CP Notes and Master Note(s) delivered to you
shall be held by your Commercial Paper Department for the
account of the Issuers or DTC, as the case may be, for
safekeeping in accordance with your customary practice and
the requirements of the Certificate Agreement.
3. AUTHORIZED REPRESENTATIVES.
(a) With the delivery of this Agreement, the
Company is furnishing to you, and from time to time
thereafter may furnish to you, and shall furnish to you
upon your written request, certificates ("Incumbency
Certificates") of a responsible officer of the Company
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certifying the incumbency and specimen signatures of
officers or agents of the Issuers authorized to execute CP
Notes on behalf of the Issuers by manual or facsimile
signature and/or to take other action hereunder on behalf
of the Issuers (each an "Authorized Representative"); such
certificate shall also specify the names of employees of
Dealers, if any, who are authorized to give notices and-or
issue instructions to you as provided herein (a "Dealer
Representative"). Until you receive a subsequent
incumbency certificate of the Company, you are entitled to
rely on the last such certificate delivered to you for
purposes of determining the Authorized Representatives and
Dealer Representatives. You shall not have any
responsibility to the Issuers to determine by whom or by
what means a facsimile signature may have been affixed on
the CP Notes, or to determine whether any facsimile or
manual signature resembles the specimen signature(s) filed
with you by a duly authorized officer of the Issuers. Any
CP Note bearing the manual or facsimile signature of a
person who is an Authorized Representative on the date
such signature is affixed shall be binding on the Issuers
after the authentication thereof by you notwithstanding
that such person shall have died or shall have otherwise
ceased to hold his office on the date such CP Note is
countersigned or delivered to you. Each Co-Issuing
Subsidiary hereby authorizes the Company to designate one
or more Authorized Representatives to take any action
hereunder (including, without limitation, to execute and
deliver, or cause to be executed and delivered, CP Notes)
on behalf of such Co-Issuing Subsidiary pursuant to one or
more Incumbency Certificates of a responsible officer of
the Company.
(b) Upon your receipt of this Agreement, and
from time to time thereafter as you choose, you shall
deliver a certificate (a "Certificate of Designation")
certifying the incumbency and specimen signatures of your
designated signers ("Designated Officers'') who are
authorized to receipt for and authenticate CP Notes, and
deliver CP Notes. Until the Company shall receive a
subsequent Certificate of Designation, or unless an
Authorized Representative shall have received written
notice from you of the lack of authority of any
individual, the Company may rely on the last such
Certificate of Designation delivered to it.
4. COMPLETION. AUTHENTICATION AND DELIVERY OF
CP NOTES.
(a) From time to time during the term of this
Agreement and subject to the terms and conditions hereof,
upon your receipt of written, telecopy or telex
instructions or notice transmitted directly to your
computers or in such manner as you then employ as your
normal business practice, not later than 12:30 p.m., New
York City time, on the date of issuance of Certificated CP
Notes, which shall be a day on which you are open for
business (a "Business Day"), from an Authorized
Representative or a Dealer Representative (in the case of
instructions from an Authorized Representative, a copy of
such instructions shall be sent to the Dealer
Representative by said Authorized Representative) you
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shall withdraw the respective Certificated CP Notes from
safekeeping and in accordance with the instructions so
received, take the following actions in accordance with
such instructions with respect to each such Certificated
CP Note:
i. date each such Certificated CP Note
the date of issuance thereof (which shall be a
Business Day) and insert the maturity date
thereof (provided that the Authorized
Representative or Dealer Representative shall
ensure that such date is a Business Day and that
it shall not be more than 270 days from the date
of issue) and the face amount (provided that the
Authorized Representative or the Dealer
Representative shall ensure that such face
amount is $150,000 or integral multiples of
$1,000 in excess thereof) thereof in figures;
ii. authenticate (by countersigning) each
such Certificated CP Note in the appropriate
space provided thereon; and
iii. deliver in the Borough of Manhattan
south of Chambers Street each such Certificated
CP Note to the Dealer, or the consignee, if any,
designated by such Authorized Representative or
Dealer Representative for the account of the
Dealer against payment in immediately available
funds of the principal amount of such CP Note.
(b) In the case of Book-Entry CP Notes, from
time to time during the term of this Agreement and subject
to the terms and conditions hereof, upon your receipt of
written, telecopy or telex instructions or notice
transmitted directly to your computers or in such a manner
as you then employ as your normal business practices, not
later than 1:00 p.m., New York City time on the date of
issuance of Book-Entry CP Notes, which shall be a Business
Day, from an Authorized Representative or a Dealer
Representative (in the case of instructions from an
Authorized Representative, a copy of such instructions
shall be sent to the Dealer Representative by said
Authorized Representative) you shall give issuance
instructions for the issuance of Book-Entry CP Notes to
DTC in a manner set forth in, and take other actions as
are required by, the Letter of Representations and the
Certificate Agreement. Instructions for the issuance of
Book-Entry CP Notes shall include the following
information (given in accordance with the instruction of
the Authorized Representative or Dealer Representative, as
the case may be) with respect to each Book-Entry CP Note:
i. the date of issuance of such Book-
Entry CP Note (which shall be a Business Day);
ii. the maturity date of such Book-Entry
CP Note (provided that the Authorized
Representative or Dealer Representative shall
ensure that such date is a Business Day and that
it shall not be more than 270 days from the date
of issue); and
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iii. the face amount (provided that the
Authorized Representative or the Dealer
Representative shall ensure that such face
amount is $150,000 or integral multiples of
$1,000 in excess thereof) in figures.
(c) You shall send a report (by telecopy or
other means permitted hereunder) to the Company on a
monthly basis of your issuance of CP Notes under this
Section 4, including the maturity date and face amount of
each CP Note issued.
(d) The Issuers understand that although you
have been instructed to deliver CP Notes against payment,
delivery of CP Notes will, in accordance with the custom
prevailing in the commercial paper market, be made before
receipt of payment in immediately available funds.
Therefore, once you have delivered a CP Note to a Dealer
or its agent as provided herein, the Issuers shall bear
the risk that a Dealer or its agent fails to remit payment
for the CP Note to you. You shall have no liability to
the Issuers for any failure or inability on the part of
the Dealer to make payment for CP Notes. Nothing in this
Agreement shall require you to purchase any CP Note or
expend your own funds for the purchase price of a CP Note
or CP Notes.
(e) Except as may otherwise be provided in the
Letter of Representations, if at any time the Company
instructs you to cease issuing Certificated CP Notes and
to issue only Book-Entry CP Notes, you agree that all CP
Notes will be issued as Book-Entry CP Notes and that no
Certificated CP Notes shall be exchanged for Book-Entry CP
Notes unless and until you have received written
instructions from an Authorized Representative (any such
instructions from a Dealer Representative shall not be
sufficient for this purpose) to the contrary.
(f) It is understood that you are not under any
obligation to assess or review the financial condition or
creditworthiness of any person to or for whose account you
deliver a CP Note pursuant to instructions from an
Authorized Representative or Dealer Representative or to
advise the Company as to the results of any such appraisal
or investigation you may have conducted on your own or of
any adverse information concerning any such person that
may in any way have come to your attention.
(g) It is understood that DTC may request the
delivery of Certificated CP Notes in exchange for Book-
Entry CP Notes upon the termination of DTC's services
pursuant to the DTC Letter of Representations.
Accordingly, upon such termination, you are authorized to
complete and deliver Certificated CP Notes in partial or
complete substitution for Book-Entry CP Notes of the same
face amount and maturity as requested by DTC. Upon the
completion or delivery of any such Certificated CP Note,
you shall annotate your records regarding the Master Note
with respect to such Book-Entry CP Notes to reflect a
corresponding reduction in the face amount of the
outstanding Book-Entry CP Notes. Your authority to so
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complete and deliver such Certificated CP Notes shall be
irrevocable at all times from the time a Book-Entry CP
Note is purchased until the indebtedness evidenced thereby
is paid in full.
(h) If you shall receive written, telecopy or
telex instructions (confirmed in writing in accordance
with this Agreement) from the Company not to issue or
deliver CP Notes, until revoked in writing or superseded
by further written instructions from the Company, you
shall not issue or deliver CP Notes, provided, however,
that, notwithstanding contrary instructions from the
Company, you shall be required to deliver CP Notes in
respect of agreements for the sale of CP Notes concluded
by an Authorized Representative or Dealer Representative
prior to receipt by the Authorized Representative or
Dealer Representative of notice of such instructions from
the Company, which the Authorized Representative or Dealer
Representative shall be required to confirm to you in
writing prior to your delivery of the CP Notes. For
purposes of the preceding provision, you may rely on
written notice given or delivered to you by an Authorized
Representative or Dealer Representative as to whether any
particular CP Notes are to be issued in respect of such
agreements concluded by such Authorized Representative or
Dealer Representative, and you shall have no obligation to
make any other or further investigation.
5. PROCEEDS OF SALE OF THE CP NOTES.
Contemporaneously with the execution and delivery of this
Agreement, and for the purposes of this Agreement, you
will establish an account designated as the Mirage
Resorts, Incorporated Note Account in the Issuers' names
(the "Note Account"). On each day on which a Dealer or
its agent receives CP Notes (whether through the
facilities of DTC in the manner set forth in the Letter of
Representations or by delivery in accordance with the
provisions of this Agreement), all proceeds received by
you in connection with such sale shall be credited in
immediately available funds to the Note Account. From
time to time, upon written instructions received by you
from an Authorized Representative, you agree to transfer
immediately available funds from the Note Account to any
bank or trust company in the United States for the
Issuers' accounts.
6. PAYMENT OF MATURED CP NOTES.
(a) By 1:00 p.m., New York City time, on the
date that any CP Notes are scheduled to mature, there
shall have been transferred to you for deposit (or
otherwise be) in the Note Account immediately available
funds at least equal to the amount of CP Notes maturing on
such date. When any matured CP Note is presented to you
for payment by the holder thereof (which may, in the case
of Book-Entry CP Notes held by you pursuant to the
Certificate Agreement, be DTC or a nominee of DTC),
payment shall be made from and charged to the Note Account
to the extent of funds available in said account.
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(b) Each CP Note presented to you for payment
at or prior to 3:00 p.m., New York City time, on any
Business Day at or after the maturity date of such CP Note
shall be paid by you on the same day as such presentation
(or if presented after 3:00 p.m., New York City time on
any such Business Day, then on the next succeeding
Business Day) to the extent of funds available in the Note
Account.
7. REPRESENTATIONS AND WARRANTIES OF THE
ISSUERS. The Issuers hereby warrant and represent to you,
and each request to issue CP Notes shall constitute the
Issuers' continuing warranty and representation, as
follows:
(a) This Agreement is, and all CP Notes
delivered to you pursuant to this Agreement will be, duly
authorized, executed and delivered by the Issuers.
(b) The issuance and delivery of the CP Notes
will not violate any state or federal law and the CP Notes
do not require registration under the Securities Act of
1933, as amended.
(c) This Agreement constitutes and the CP
Notes, when completed, countersigned, and delivered
pursuant hereto, will constitute, the Issuers' legal,
valid and binding obligations enforceable against the
Issuers in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the rights of creditors generally and by general
principles of equity.
(d) Each Issuer is a corporation validly
existing under the laws of Nevada and no liquidation,
dissolution, bankruptcy, windup or similar proceedings
have been instituted with respect to any Issuer.
(e) The Issuers have, and at all relevant times
have had, all necessary corporate power and authority to
execute, deliver and perform this Agreement and to issue
the CP Notes.
(f) All actions on the part of the Issuers
which are required for the authorization of the issuance
of the CP Notes and for the authorization, execution,
delivery and performance of this Agreement do not require
the approval or consent of any holder or trustee of any
indebtedness or obligations of any Issuer.
(g) The issuance of CP Notes by the Issuers (i)
does not and will not contravene any provision of any
governmental law, regulation or rule applicable to any
Issuer, and (ii) does not and will not conflict with,
breach or contravene the provisions of any contract or
other instrument binding upon any Issuer.
8. RELIANCE ON INSTRUCTIONS. Except as
otherwise set forth herein, you shall incur no liability
to the Issuers in acting hereunder upon telephonic or
other instructions contemplated hereby which you
reasonably believed in good faith to have been given by an
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Authorized Representative or a Dealer Representative, as
the case may be. In the event a discrepancy exists with
respect to such instructions, the telephonic instructions
as recorded by you will be deemed the controlling and
proper instructions, unless such instructions are required
by this Agreement to be in writing or have not been
recorded by you as contemplated by the next sentence. It
is understood that all telephonic instructions shall be
recorded by you and the Issuers hereby consent to such
recording.
9. CANCELLATION OF CP NOTES. You will in due
course cancel Certificated CP Note(s) presented for
payment and from time to time return such canceled
Certificated CP Notes to the Company. After payment of
any matured Book-Entry CP Note, you shall annotate your
records to reflect the face amount of Book-Entry CP Notes
outstanding in accordance with the Letter of
Representations. Promptly upon the written request of the
Company, you agree to cancel and return to the Company all
unissued Certificated CP Notes in your possession at the
time of such request.
10. NOTICES; ADDRESSES.
(a) All communications by or on behalf of the
Issuers or a Dealer, by telephone or otherwise, relating
to the completion, delivery or payment of the CP Note(s)
are to be directed to your Commercial Paper Department.
(b) Notices and other communications hereunder
shall (except to the extent otherwise expressly provided)
be in writing (which may be by facsimile) and shall be
addressed as follows, or to such other address as the
party receiving such notice shall have previously
specified to the party sending such notice:
if to the Company or any other Issuer, at:
concerning the daily issuance of CP Notes:
Mirage Resorts, Incorporated
3260 South Industrial Road
Las Vegas, Nevada 89109
Attention: William T. Estes,
Senior Financial Analyst
Facsimile No.: (702) 792-4796
Telephone No.: (702) 792-4844
concerning all other matters:
Mirage Resorts, Incorporated
3400 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile No.: (702) 791-5787
Telephone No.: (702) 791-7129
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if to you at:
concerning the daily issuance of CP Notes:
BankAmerica National Trust Company
One World Trade Center, 18th Floor
New York, New York 10048
Attention: Corporate Trust Division
Commercial Paper Department
Facsimile No.: (212) 390-3117
Telephone No.: (212) 390-3126
concerning all other matters:
BankAmerica National Trust Company
One World Trade Center, 18th Floor
New York, New York 10048
Attention: Steven E. Haas
Facsimile No.: (212) 390-2808
Telephone No.: (212) 390-2864
(c) In any case where it is provided in this
Agreement that a copy of any instruction, demand or other
notice is to be delivered to a Dealer, such copy shall be
delivered to the Dealer at the address set forth below by
the same means as the original thereof shall have been
given, provided that the failure of such copy to be given
to any Dealer shall not invalidate or adversely affect the
original thereof:
Dealers:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Attention: Gail McDonnell
Facsimile No.: (212) 296-8387
Telephone No.: (212) 296-6906
Or, if after November 13, 1995, to
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered
Products
Facsimile No.: (212) 761-0780
Telephone No.: (212) 761-4000
CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
Attention: Robert W. Mitchell
Facsimile No.: (212) 318-1498
Telephone No.: (212) 909-3842
BA Securities, Inc.
555 California Street, 9th Floor
San Francisco, California 94104
Attention: Jeff Berry
Facsimile No.: (415) 622-3429
Telephone No.: (415) 953-1452
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Notices shall be deemed delivered when received at the
address specified above. For purposes of this Section 10,
"when received" shall mean actual receipt (i) of an
electronic communication by a telex machine, telecopier or
issuance system specified in or pursuant to this
Agreement; or (ii) of an oral communication by the person
specified in or pursuant to this Agreement; or (iii) of a
written communication hand-delivered at the office
specified in or pursuant to this Agreement.
11. LIABILITY. Neither you nor your officers,
employees or agents shall be liable for any act or
omission hereunder, except in the case of gross negligence
or willful misconduct as described in Section 12 herein.
Your duties and obligations and those of your officers and
employees shall be determined by the express provisions of
this Agreement, the Letter of Representations and the
Certificate Agreement (including the documents referred to
therein), and you and your officers, employees and agents
shall be responsible for the performance of only such
duties and obligations as are specifically set forth
herein and therein, and no implied covenants shall be read
into any such document against you or your officers,
employees or agents. Neither you nor your officers,
employees or agents shall be required to ascertain whether
any issuance or sale of CP Note(s) (or any amendment or
termination of this Agreement) has been duly authorized or
is in compliance with any other agreement to which any
Issuer is a party (whether or not you are a party to such
other agreement).
12. INDEMNITY. The Issuers hereby agree, jointly
and severally, to indemnify and hold you, your employees
and any of your officers and agents harmless from and
against, and you shall not be liable for, any and all
losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs and
expenses of any nature (including, without limitation,
interest and reasonable attorneys' fees, expenses, and the
allocable costs of in-house legal services) arising out of
or resulting from the exercise of your rights and-or the
performance of your duties (or those of your agents and
employees) hereunder; provided, however, that the Issuers
shall not be liable to indemnify or pay you with respect
to any loss, liability, action, suit, judgment, demand,
damage, cost or expense that results from or is
attributable to your gross negligence or willful
misconduct or that of your officers or employees. The
foregoing indemnity includes, but is not limited to, any
action taken or omitted to be taken by you upon telex,
telephonic or other electronically transmitted
instructions (authorized herein) received by you from, or
believed by you in good faith to have been given by, the
proper person or persons. The provisions of this Section
12 shall survive (i) your resignation or removal hereunder
and (ii) the termination of this Agreement.
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13. TERMINATION.
(a) This Agreement may be terminated at any time by
either you or the Issuers by 30 days' prior written notice
to the other, provided that you agree to continue acting
as issuing and paying agent hereunder until such time as
your successor has been selected and has entered into an
agreement with the Issuers to that effect. Such
termination shall not affect the respective liabilities of
the parties hereunder arising prior to such termination.
(b) If no successor has been appointed within 30
days, you shall have the right to petition a court of
competent jurisdiction for the appointment of a successor
issuing and paying agent. You shall be reimbursed for any
and all reasonable expenses in connection with any such
petition and appointment.
(c) Subject to the terms of Section 9, on the
Business Day following the date of termination of this
Agreement, you shall destroy all Certificated CP Notes in
your possession and shall transfer to the Issuers all
funds, if any, then on deposit in the Note Account. You
shall promptly notify the Company of all Certificated CP
Notes so destroyed.
14. AMENDMENTS AND MODIFICATIONS. No amendment,
modification or waiver of any provision of this Agreement,
nor any consent to any departure by either party from any
provision hereof binding upon such party, shall be
effective unless the same shall be in writing and signed
by the other party hereto.
15. BINDING EFFECT; ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the
parties hereto, their respective successors, including
successors by merger, and assigns; provided, however, that
no party hereto may assign any of its rights or
obligations hereunder, except with the prior written
consent of the other party hereto.
16. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE
STATE OF NEW YORK.
(b) Each party irrevocably and unconditionally
submits to the exclusive jurisdiction of the United States
Federal courts located in the Borough of Manhattan and the
courts of the State of New York located in the Borough of
Manhattan.
17. EXECUTION IN COUNTERPARTS. This Agreement may
be executed in any number of counterparts; each
counterpart, when so executed and delivered, shall be
deemed to be an original; and all of which counterparts,
taken together, shall constitute one and the same
agreement.
11
<PAGE>
18. HEADINGS. Section headings used in this
Agreement are for convenience of reference only and shall
not affect the construction or interpretation of this
Agreement.
19. COMPENSATION AND EXPENSES. The Company shall
pay you from time to time following the execution of this
Agreement compensation for all services rendered by you
hereunder as agreed upon by the Company. To the extent
not inconsistent with such agreement, the Company shall
reimburse you upon your request for all reasonable
expenses, disbursements and advances incurred or made by
you in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses
and disbursements of your agents, counsel and allocated
costs of in-house counsel) except any expense or
disbursement attributable to your gross negligence or
willful misconduct.
20. MISCELLANEOUS.
(a) No provision of this Agreement shall require you
to risk your own funds or otherwise incur any financial
liability in the performance of any of your duties
hereunder or in the exercise of any of your duties
hereunder or in the exercise of any of your rights and
powers hereunder.
(b) You may consult with legal counsel, and any
advice or written opinion of such counsel shall be full
and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by you,
in the absence of bad faith, gross negligence or willful
misconduct on your part, in reliance on such advice or
opinion.
(c) You make no representation as to, and shall have
no responsibility for, the correctness of any statement
made by or on behalf of any Issuer contained in, or the
validity or sufficiency of, this Agreement or any
documents or instruments referred to in this Agreement
(with respect to any Issuer) or as to or for the validity
or collectibility of any obligation of any Issuer
contemplated by this Agreement. You shall not be
accountable for the use or application by any person of
disbursements properly made by you in conformity with the
provisions of this Agreement.
(d) You may rely and shall be protected in acting
upon any document or writing presented to you hereunder
and reasonably believed by you to be genuine and to have
been signed and presented by an authorized person or
persons.
If the foregoing is acceptable to you, please
indicate your agreement therewith by signing one or more
counterparts of this Agreement in the space provided
below, and returning such signed counterpart(s) to the
Company, whereupon this letter, when signed by you and the
Issuers, will become a binding agreement among us.
12
<PAGE>
<TABLE>
<C> <C>
Mirage Resorts, THE MIRAGE CASINO-HOTEL
Incorporated
By:/s/ Daniel R. Lee
By:/s/ Daniel R. Lee Name: Daniel R. Lee
Name: Daniel R. Lee Title: Assistant Treasurer
Title: Chief Financial Officer
Treasure Island Corp. Bellagio
By:/s/ Daniel R. Lee By:/s/ Daniel R. Lee
Name: Daniel R. Lee Name: Daniel R. Lee
Title: Treasurer Title: Assistant Treasurer
GNLV, CORP. MH, INC.
By:/s/ Daniel R. Lee By:/s/ Daniel R. Lee
Name: Daniel R. Lee Name: Daniel R. Lee
Title: Treasurer Title: Treasurer
</TABLE>
Agreed to and Accepted this 13th day of November, 1995.
BankAmerica National Trust Company
as Issuing and Paying Agent
By:/s/ Steven E. Haas
Name: Steven E. Haas
Title: Trust Officer
13
THIS CP NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
INITIAL SALE OF THIS CP NOTE MAY BE MADE ONLY TO AN
INSTITUTIONAL "ACCREDITED INVESTOR," AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), OR A "QUALIFIED INSTITUTIONAL BUYER,"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A "QIB").
BY ITS ACCEPTANCE OF THIS CP NOTE, THE PURCHASER HEREOF (A)
REPRESENTS THAT IT IS (i) AN INSTITUTIONAL ACCREDITED
INVESTOR OR A "BANK," AS DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT, OR A SAVINGS AND LOAN ASSOCIATION OR OTHER
INSTITUTION OF THE TYPE REFERRED TO IN SECTION 3(a)(5)(A) OF
THE SECURITIES ACT, THAT IS ACTING AS A FIDUCIARY ON BEHALF
OF AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT THIS CP
NOTE IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR (ii) A QIB ACTING ON BEHALF OF ITSELF OR
ANOTHER QIB, AND (B) AGREES THAT ANY RESALE OF THIS CP NOTE
WILL BE MADE ONLY IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT (INCLUDING, IN THE CASE OF A SALE
BY A QIB, A TRANSACTION EXEMPT PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT), AND, IN EACH CASE, ONLY TO (i A DEALER
AUTHORIZED BY THE COMPANY (EACH, A "DEALER"), (ii) TO MIRAGE
RESORTS, INCORPORATED (THE "COMPANY"), (iii) TO THE MIRAGE
CASINO-HOTEL, TREASURE ISLAND CORP., BELLAGIO, GNLV, CORP.
OR MH, INC., (iv) THROUGH A DEALER TO AN INSTITUTIONAL
INVESTOR APPROVED BY THE DEALER AS AN INSTITUTIONAL
ACCREDITED INVESTOR, (v) TO A QIB OR (vi) IN A TRANSACTION
PREVIOUSLY APPROVED IN WRITING BY THE COMPANY IN ITS SOLE
AND ABSOLUTE DISCRETION AS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT.
COMMERCIAL PAPER NOTE
$____________
No._______
New York, New York
________________, 19__
For value received, Mirage Resorts, Incorporated, a
Nevada corporation ("MRI"), and THE MIRAGE CASINO-HOTEL,
Treasure Island Corp., Bellagio, GNLV, CORP. and MH, INC.,
each of which is a Nevada corporation and a direct or
indirect wholly owned subsidiary of MRI (collectively with
MRI, the "Issuers"), jointly and severally promise to pay to
the order of ______________________________________ the sum
of _________________________________ Dollars on
_________________, 19 __ at the office of BankAmerica
National Trust Company (the "Issuing and Paying Agent") at
One World Trade Center, 18th Floor, Corporate Trust
Division/Commercial Paper Department, New York, New York
10048.
Exhibit 4.2
<PAGE>
This note has been issued pursuant to, and is subject
to the terms of, the Issuing and Paying Agency Agreement (as
from time to time amended, supplemented or otherwise
modified, the "Issuing and Paying Agency Agreement"), dated
as of November 13, 1995, between the Issuers and the Issuing
and Paying Agent.
Reference is made to the Issuing and Paying Agency
Agreement and the other related documents, which, as from
time to time amended, are on file with the Issuing and
Paying Agent at its aforesaid office. This note shall be
governed by, and construed in accordance with, the laws of
the State of New York.
<TABLE>
<C> <C>
MIRAGE RESORTS, INCORPORATED THE MIRAGE CASINO-HOTEL
By:/s/ Daniel R. Lee,
By:/s/ Daniel R. Lee, Assistant Treasurer
Chief Financial Officer Authorized Signature
Authorized Signature
TREASURE ISLAND CORP. BELLAGIO
By:/s/ Daniel R. Lee, By:/s/ Daniel R. Lee,
Treasurer Assistant Treasurer
Authorized Signature Authorized Signature
GNLV, CORP. MH, INC.
By:/s/ Daniel R. Lee, By:/s/ Daniel R. Lee,
Treasurer Treasurer
Authorized Signature Authorized Signature
</TABLE>
Countersigned for authentication only by:
BANKAMERICA NATIONAL TRUST COMPANY
as Issuing and Paying Agent
By:
Authorized Signature
This Note is not valid for any purpose unless
countersigned by BankAmerica National Trust Company, as
Issuing and Paying Agent.
2
COMMERCIAL PAPER DEALER AGREEMENT
November 13, 1995
CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
Dear Sirs:
Mirage Resorts, Incorporated, a Nevada corporation
(the "Company"), hereby appoints you as its agent, and as
agent for THE MIRAGE CASINO-HOTEL, Treasure Island Corp.,
Bellagio, GNLV, CORP. and MH, INC., each of which is a
Nevada corporation and a direct or indirect wholly owned
subsidiary of the Company (collectively, the "Co-Issuing
Subsidiaries" and, together with the Company, the
"Issuers"), on a non-exclusive basis for the purpose of
soliciting and receiving offers to purchase from the Issuers
from time to time their commercial paper notes, maturing not
later than nine months from date of issue (the "CP Notes")
in an aggregate principal amount outstanding not to exceed
the amount authorized from time to time by the Board of
Directors of the Company. The CP Notes will be issued under
an Issuing and Paying Agency Agreement dated as of November
13, 1995 (the "Paying Agency Agreement") between the Issuers
and BankAmerica National Trust Company, as Issuing and
Paying Agent (the "Paying Agent"), and will be issued in
denominations of $150,000 and integral multiples of $1,000
in excess thereof. The Company may sell CP Notes directly
to you as principal for resale to others. For purposes of
this Agreement, the Company will act for itself and on
behalf of the Co-Issuing Subsidiaries.
SECTION 1. ISSUANCE AND PURCHASE OF THE CP NOTES.
If you and the Company shall agree upon the sale of any CP
Notes to or through you (including, but not limited to,
agreement with respect to the price, principal amount,
maturity and interest or discount rate thereof), (i)
instructions to the Paying Agent to complete, authenticate
and deliver the CP Notes shall be given in the manner
described in the Paying Agency Agreement and (ii) the
authentication and delivery to you of such CP Notes by the
Paying Agent against payment of the purchase price therefor
shall constitute the issuance of such CP Notes by the
Issuers.
SECTION 2. OFFERING OF THE CP NOTES; RESTRICTIONS
ON TRANSFER. (a) You agree with the Company that (i) you
will deliver a Private Placement Memorandum (as hereinafter
defined) to each prospective investor in the CP Notes prior
to the initial offer to purchase a CP Note or CP Notes by
such investor, (ii) you will not solicit offers for, or
Exhibit 99.1
<PAGE>
offer or sell, CP Notes by any form of general solicitation
or general advertising or in any manner involving a public
offering within the meaning of Section 4(2) of the
Securities Act of 1933, as amended (the "Securities Act"),
and Rule 506 thereunder, and (iii) you will solicit offers
for CP Notes only from, and will offer CP Notes only to, (x)
institutional investors that you reasonably believe are
"accredited investors" within the meaning of Rule 501(a)
under the Securities Act or (y) qualified institutional
buyers as defined in Rule 144A under the Securities Act
("QIBs") and, in either case, who, in purchasing CP Notes,
may be deemed to have represented and agreed as provided in
paragraphs (1) through (4) of Section 2(b).
(b) Each Private Placement Memorandum shall
contain paragraphs in substantially the following form:
"Each purchaser of a CP Note will be deemed to
have represented and agreed as follows:
(1) It understands that the CP Notes are
being issued only in transactions not
involving any public offering within the
meaning of the Securities Act;
(2) It is (A) an institutional investor
which is an "Accredited Investor," as defined
in Rule 501(a) of Regulation D under the
Securities Act (an "Institutional Accredited
Investor"), or a "bank," as defined in
Section 3(a)(2) of the Securities Act, or a
savings and loan association or other
institution of the type referred to in
Section 3(a)(5)(A) of the Securities Act,
that is acting as a fiduciary in purchasing
the CP Notes for the account of an
Institutional Accredited Investor, which has
such knowledge and experience (or, if such
Institutional Accredited Investor is acting
as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge
and experience) in financial and business
matters that it is capable (whether acting
for its own account or in such fiduciary
capacity) of evaluating the merits and risks
of investing in such CP Notes, has had access
to such information as it deems necessary in
order to make an informed investment decision
and is not purchasing the CP Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of
CP Notes pursuant to Rule 144A under the
Securities Act, a "qualified institutional
buyer," as defined in Rule 144A under the
Securities Act (a "QIB"), or a QIB purchasing
the CP Notes on behalf of one or more other
QIBs;
(3) If in the future it (or any other
investor or any other fiduciary or agent
representing it) decides to sell such CP
2
<PAGE>
Notes prior to maturity, said CP Notes will
be sold only in a transaction exempt from
registration under the Securities Act and
only to (i) you or another dealer authorized
by the Company (each, a "Dealer"), (ii) to
the Company or any other Issuer, (iii) to a
QIB, (iv) through a Dealer to an
institutional investor approved by the Dealer
as an Institutional Accredited Investor or to
a QIB or (v) in a transaction previously
approved in writing by the Company as exempt
from registration under the Securities Act;
(4) It understands that, although you (or
any other Dealer), the Company or another
Issuer may repurchase CP Notes, none of such
entities is obligated to do so, and,
accordingly, the purchaser (or any such other
investor) should be prepared to hold the CP
Notes until maturity;
(5) It acknowledges that the CP Notes sold
to it by you may be sold to it pursuant to
Rule 144A under the Securities Act;
(6) It understands that the CP Notes will
bear a legend substantially as follows:
THIS CP NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE INITIAL SALE
OF THIS CP NOTE MAY BE MADE ONLY TO AN
INSTITUTIONAL "ACCREDITED INVESTOR," AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"),
OR A "QUALIFIED INSTITUTIONAL BUYER," AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT
(A "QIB"). BY ITS ACCEPTANCE OF THIS CP
NOTE, THE PURCHASER HEREOF (A) REPRESENTS
THAT IT IS (i) AN INSTITUTIONAL ACCREDITED
INVESTOR OR A "BANK," AS DEFINED IN SECTION
3(a)(2) OF THE SECURITIES ACT, OR A SAVINGS
AND LOAN ASSOCIATION OR OTHER INSTITUTION OF
THE TYPE REFERRED TO IN SECTION 3(a)(5)(A) OF
THE SECURITIES ACT, THAT IS ACTING AS A
FIDUCIARY ON BEHALF OF AN INSTITUTIONAL
ACCREDITED INVESTOR AND THAT THIS CP NOTE IS
BEING ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO DISTRIBUTION OR (ii) A QIB ACTING ON
BEHALF OF ITSELF OR ANOTHER QIB, AND (B)
AGREES THAT ANY RESALE OF THIS CP NOTE WILL
BE MADE ONLY IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT
(INCLUDING, IN THE CASE OF A SALE BY A QIB, A
TRANSACTION EXEMPT PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT), AND, IN EACH CASE,
ONLY TO (i) CS FIRST BOSTON CORPORATION OR
ANOTHER DEALER AUTHORIZED BY THE COMPANY
(EACH, A "DEALER"), (ii) TO MIRAGE RESORTS,
INCORPORATED (THE "COMPANY"), (iii) TO THE
MIRAGE CASINO-HOTEL, TREASURE ISLAND CORP.,
3
<PAGE>
BELLAGIO, GNLV, CORP. OR MH, INC., (iv)
THROUGH A DEALER TO AN INSTITUTIONAL INVESTOR
APPROVED BY THE DEALER AS AN INSTITUTIONAL
ACCREDITED INVESTOR, (v) TO A QIB OR (vi) IN
A TRANSACTION PREVIOUSLY APPROVED IN WRITING
BY THE COMPANY IN ITS SOLE AND ABSOLUTE
DISCRETION AS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT;
and
(7) It has received the Private Placement
Memorandum relating to the offering of the CP
Notes and has had full opportunity (i) to ask
questions and receive answers concerning the
terms and conditions of the offering made
pursuant to such Private Placement Memorandum
and (ii) to request from the Company and the
other Issuers and to review, and has
received, all additional information
necessary to verify the accuracy of the
information contained in such Private
Placement Memorandum or incorporated therein
by reference that the Issuers could provide
without unreasonable effort or expense."
SECTION 3. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to and agrees with you as of
the date hereof, as of each date on which you solicit offers
to purchase CP Notes, as of each date on which the Company
accepts an offer to purchase CP Notes (including any
purchase by you as principal), as of each date the Issuer
issue and deliver CP Notes and as of each date the Private
Placement Memorandum is amended or supplemented, as follows
(it being understood that such representations, warranties
and agreements shall be deemed to relate to the Private
Placement Memorandum as amended or supplemented to each such
date):
(a) Each Issuer has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the State of Nevada. The Company has full power
and authority to execute, deliver and perform this
Agreement. Each Issuer has full power and authority to
execute, deliver and perform its respective obligations
under the CP Notes and the Paying Agency Agreement.
(b) The CP Notes have been duly authorized
by the Issuers and, when executed and authenticated in
accordance with the provisions of the Paying Agency
Agreement and delivered to and paid for by the purchasers
thereof, will be entitled to the benefits of the Paying
Agency Agreement and will be valid and binding obligations
of the Issuers, enforceable in accordance with their
respective terms, except that (i) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability, (iii) rights to indemnity and contribution
may be limited by state or federal laws relating to
4
<PAGE>
securities or by the policies underlying such laws and (iv)
no representation, warranty or agreement is made with
respect to any purported waivers of rights or defenses.
(c) This Agreement has been duly authorized,
executed and delivered by the Company.
(d) The Paying Agency Agreement has been
duly authorized, executed and delivered by the Issuers and,
assuming the due authorization, execution and delivery by
the Paying Agent, is a valid and binding agreement of the
Issuers, enforceable in accordance with its terms, except
that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (ii) rights of
acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability,
(iii) rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the
policies underlying such laws and (iv) no representation,
warranty or agreement is made with respect to any purported
waivers of rights or defenses.
(e) The execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, and the execution and
delivery by the Issuers of, and the performance by the
Issuers of their respective obligations under, the CP Notes
and the Paying Agency Agreement will not contravene any
provision of applicable law or the Articles of Incorporation
or Bylaws of any Issuer or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company
or any subsidiary of the Company, the contravention of which
would have a material adverse effect on the business of the
Company and its subsidiaries, taken as a whole, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement, or by the Issuers of their
respective obligations under the CP Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connec
tion with the offer and sale of the CP Notes and except for
such approval under the Nevada Gaming Control Act and the
regulations promulgated thereunder as has been obtained and
is in full force and effect.
(f) The issuance and sale of the CP Notes
under the circumstances contemplated hereby and by the
Paying Agency Agreement do not require registration of the
CP Notes under the Securities Act, pursuant to the exemption
from registration contained in Section 4(2) thereof and the
regulations promulgated thereunder and do not require com
pliance with any provision of the Trust Indenture Act of
1939, as amended.
5
<PAGE>
(g) No Issuer is an "investment company" or
an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as
amended.
(h) There has not occurred any material
adverse change, or any development involving a prospective
material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that
set forth in the Private Placement Memorandum.
(i) The CP Notes satisfy the requirements
set forth in Rule 144A(d)(3) under the Securities Act.
SECTION 4. AGREEMENTS. The Company agrees with
you that:
(a) The Company will promptly deliver to you
copies of all (i) filings by the Company with the Securities
and Exchange Commission and any United States securities
exchange on which securities of any Issuer are listed and
(ii) all material information generally supplied by the
Company to its shareholders or by any Issuer to any of
Standard & Poor's Ratings Group, Moody's Investor Services,
Inc. or Duff & Phelps Credit Rating Co. (collectively, the
"Rating Agencies").
(b) The Company will provide to you as soon
as practicable a Private Placement Memorandum containing
business and financial information concerning the Company
and a description of the CP Notes which (with any amendments
or supplements provided by the Company) may be used by you
in connection with the sale of the CP Notes until the
Company provides you with an updated or revised memorandum
(such Private Placement Memorandum, together with any
amendments or supplements thereto, including information
incorporated therein by reference, if any, is herein
referred to as the "Private Placement Memorandum").
(c) If, at any time when you are offering CP
Notes or any CP Notes are outstanding, any event occurs or
condition exists as a result of which the Private Placement
Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in
the light of the circumstances existing when such Private
Placement Memorandum is delivered to a purchaser, not
misleading, or if, in your opinion or the opinion of the
Company, it is necessary at any time to amend or supplement
the Private Placement Memorandum as then amended or
supplemented to comply with applicable law, the Company will
notify you as promptly as practicable and will prepare and
furnish to you a revision or supplement to the Private
Placement Memorandum satisfactory in all material respects
to you, that will correct such statement or omission or
effect such compliance.
(d) The Company will, whether or not any
sale of CP Notes is consummated, pay all reasonable out-of-
pocket expenses incurred by you incident to the performance
6
<PAGE>
of its obligations under this Agreement, the CP Notes and
the Paying Agency Agreement, including, without limitation,
reasonable fees and expenses of your counsel.
(e) The Company will notify you promptly in
writing of any downgrading, or of its receipt of any notice
of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
Issuer's securities by any of the Rating Agencies.
(f) The Company agrees promptly from time to
time to take such action as you may reasonably request to
qualify the CP Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions as you may reasonably
request and to maintain such qualifications for as long as
you shall reasonably request. The Company also agrees to
reimburse you for any reasonable fees or costs (including
reasonable out-of-pocket fees and disbursements of counsel)
incurred in so qualifying the CP Notes.
(g) The Issuers will not sell, offer for
sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act)
which could be integrated with the sale of the CP Notes in a
manner which would require the registration under the
Securities Act of the offer and sale of such CP Notes.
(h) The Issuers will not solicit any offer
to buy or offer to sell CP Notes by means of any form of
general solicitation or general advertising, within the
meaning of Rule 502(c) under the Securities Act or
otherwise, including: (x) any advertisement, article, notice
or other communication published in any newspaper, magazine
or similar media or broadcast over television or radio; and
(y) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(i) The Company will furnish to you such
additional information as you may reasonably request.
(j) At any time when the Company is not
subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Company shall make available,
upon request, to any holder, beneficial owner or prospective
purchaser of any CP Notes the information required to be
delivered to such persons pursuant to Rule 144A(d)(4) under
the Securities Act and will furnish to you, upon request,
copies of such information.
SECTION 5. INDEMNITY AND CONTRIBUTION. The
Company agrees to (i) indemnify and hold harmless you and
each person, if any, who controls you within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (you and each
such other person are collectively referred to herein as
"you"), from and against any and all losses, claims, damages
and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the Private
Placement Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements
7
<PAGE>
thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and (ii) reimburse you for all reasonable out-of-pocket
expenses (including reasonable counsel fees) as they are
incurred by you in connection with investigating or
defending any such loss, claim, damage or liability. The
foregoing indemnity and reimbursement obligation shall not
apply in respect of any statement in or omission from the
Private Placement Memorandum (as so amended or supplemented)
based on information pertaining to you furnished to the
Company by you, or on your behalf. The Company shall not,
without your prior written consent, effect any settlement of
any pending or threatened proceeding in respect of which you
are or could have been a party and indemnity could have been
sought hereunder by you, unless such settlement includes an
unconditional release of you from all liability on claims
that are the subject matter of such proceeding and for which
indemnity could have been sought hereunder. If the
indemnification provided for in this Section 5 is
unavailable or insufficient in respect of any losses,
claims, damages or liabilities referred to herein, then you,
on the one hand, and the Company, on the other hand, shall
contribute to the amount paid or payable by you as a result
of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative
benefits received by you, on the one hand, and the Company,
on the other hand, or, if such allocation is not permitted
by applicable law, to reflect not only the relative benefits
referred to above but also the relative fault of each of the
parties and any other relevant equitable considerations.
SECTION 6. PAYMENT AND DELIVERY. (a) Payment for
CP Notes sold to or through you pursuant to this Agreement
shall be made by you in immediately available funds payable
to the Paying Agent for the account of the Company in such
manner and at such time as provided in the Paying Agency
Agreement, at the offices of the Paying Agent. Delivery of
CP Notes sold to or through you hereunder shall be made
against payment of the purchase price therefor by the Paying
Agent to you through the facilities of The Depository Trust
Company or in definitive form payable to the bearer (and in
such denominations as may reasonably be requested by you) by
2:15 p.m. New York time on the date agreed upon for
delivery.
(b) In the event the Company shall direct
the Paying Agent to cease issuing CP Notes, the Paying Agent
shall be instructed by the Company to issue such CP Notes as
you shall certify were sold within sixty (60) minutes after
your receipt of written notice of such cessation and for
which you had the prior agreement of the Company pursuant to
Section 1 of this Agreement. You agree upon receipt of any
such cessation notice to immediately cease effecting
transactions in CP Notes; provided, however, that this
provision shall have no effect with respect to CP Notes
purchased by you as principal from the Company.
SECTION 7. CONDITIONS OF YOUR OBLIGATION. Your
obligation to solicit offers to purchase CP Notes as agent
of the Issuers, your obligation to purchase CP Notes as
8
<PAGE>
principal and the obligation of any other purchaser to
purchase CP Notes will be subject to the accuracy of the
representations and warranties on the part of the Company
herein and to the performance and observance by the Company
of all agreements herein contained on its part to be
performed and observed (in the case of your obligation to
solicit offers to purchase CP Notes, at the time of such
solicitation, and, in the case of your or any other
purchaser's obligation to purchase CP Notes, at the time the
Company accepts the offer to purchase such CP Notes and at
the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase:
(i) there shall not have occurred any
change, or any development involving a prospective change,
in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries from that set forth in the Private Placement
Memorandum, as amended or supplemented, that, in your
reasonable judgment, is material and adverse to the Company
and its subsidiaries, taken as a whole, and that makes it,
in your reasonable judgment, impracticable to market the CP
Notes; and
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Issuer's
securities by any of the Rating Agencies;
except, in each case described in paragraph (a)(i) or (ii)
above, as disclosed to you in writing by the Company prior
to such solicitation or, in the case of a purchase of CP
Notes, as disclosed to you before the offer to purchase such
CP Notes was made.
(b) The following documents shall have been
provided to you at or promptly following the execution of
this Agreement:
(i) an executed copy of the Paying
Agency Agreement;
(ii) a certified copy of resolutions of
the Board of Directors of each Issuer authorizing (a) the
issuance of the CP Notes and (b) the execution and delivery
of this Agreement (in the case of the Company only) and the
Paying Agency Agreement;
(iii) opinions of counsel to the
Company substantially in the forms of Exhibits A-1 and A-2
hereto; and
9
<PAGE>
(iv) all other documents reasonably
requested by you.
SECTION 8. NOTICES. All communications hereunder
will be in writing and effective only on receipt, and, if
sent to you, will be mailed, delivered or telecopied and
confirmed to CS First Boston Corporation at 55 East 52nd
Street, New York, New York 10055, Attention: Robert
Mitchell (telecopy number: 212-318-1498), or, if sent to the
Company, will be mailed, delivered, or telecopied and
confirmed to the Company at 3400 Las Vegas Boulevard South,
Las Vegas, Nevada 89109, Attention: Chief Financial Officer
(telecopy number: (702) 792-7628), or to either of the
foregoing parties, or their successors, at such other
address as such party or successor may designate from time
to time by notice duly given in accordance with the terms of
this Section 8 to the other party hereto.
SECTION 9. AMENDMENTS; SUCCESSORS. (a) This
Agreement may be amended or supplemented if, but only if,
such amendment or supplement is in writing and is signed by
the Company and you. This Agreement is not assignable by
either party hereto without the written consent of the other
party.
(b) This Agreement will inure to the benefit
of and be binding upon the parties hereto and their
respective successors and the controlling persons referred
to in Section 5 and the purchasers of CP Notes (to the
extent expressly provided in Section 7), and no other person
will have any right or obligation hereunder.
(c) The Company will give you notice of any
proposed cancellation, amendment, supplement, waiver or
consent to or under the Paying Agency Agreement at least
seven (7) days prior to the effective date thereof.
SECTION 10. TERMINATION. This Agreement may be
terminated at any time by either party hereto upon the
giving of written notice of such termination to the other
party hereto, but without prejudice to any rights,
obligations or liabilities of either party hereto accrued or
incurred prior to such termination. If this Agreement is
terminated, the provisions of Sections 3, 4(d), 4(f), 4(g)
and 5 shall survive and continue in full force and effect.
SECTION 11. GOVERNING LAW. This Agreement shall
be governed by and construed in accordance with the internal
laws of the State of New York.
SECTION 12. COUNTERPARTS. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
SECTION 13. HEADINGS. The headings of the
sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part
of this Agreement.
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<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement between
the Company and you.
Very truly yours,
MIRAGE RESORTS, INCORPORATED
By:/s/ Daniel R. Lee
Daniel R. Lee
Chief Financial Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CS FIRST BOSTON CORPORATION
By:/s/ Robert W. Mitchell
Name: Robert W. Mitchell
Title: Director
11
COMMERCIAL PAPER DEALER AGREEMENT
November 13, 1995
BA Securities, Inc.
555 California Street
San Francisco, California 94104
Dear Sirs:
Mirage Resorts, Incorporated, a Nevada corporation (the
"Company"), hereby appoints you as its agent, and as
agent for THE MIRAGE CASINO-HOTEL, Treasure Island
Corp., Bellagio, GNLV, CORP. and MH, INC., each of which
is a Nevada corporation and a direct or indirect wholly
owned subsidiary of the Company (collectively, the "Co-
Issuing Subsidiaries" and, together with the Company,
the "Issuers"), on a nonexclusive basis for the purpose
of soliciting and receiving offers to purchase from the
Issuers from time to time their commercial paper notes,
maturing not later than nine months from date of issue
(the "CP Notes") in an aggregate principal amount
outstanding not to exceed the amount authorized from
time to time by the Board of Directors of the Company.
The CP Notes will be issued under an Issuing and Paying
Agency Agreement dated as of November 13, 1995 (the
"Paying Agency Agreement") between the Issuers and
BankAmerica National Trust Company, as Issuing and
Paying Agent (the "Paying Agent"), and will be issued in
denominations of $150,000 and integral multiples of
$1,000 in excess thereof. The Company may sell CP Notes
directly to you as principal for resale to others. For
purposes of this Agreement, the Company will act for
itself and on behalf of the Co-Issuing Subsidiaries.
SECTION 1. ISSUANCE AND PURCHASE OF THE CP
NOTES. If you and the Company shall agree upon the sale
of any CP Notes to or through you (including, but not
limited to, agreement with respect to the price,
principal amount, maturity and interest or discount rate
thereof), (i)instructions to the Paying Agent to
complete, authenticate and deliver the CP Notes shall
be given in the manner described in the Paying Agency
Agreement and (ii) the authentication and delivery to
you of such CP Notes by the Paying Agent against payment
of the purchase price therefor shall constitute the
issuance of such CP Notes by the Issuers.
Exhibit 99.2
<PAGE>
SECTION 2. OFFERING OF THE CP NOTES;
RESTRICTIONS ON TRANSFER. (a) You agree with the
Company that (i) you will deliver a Private Placement
Memorandum (as hereinafter defined) to each prospective
investor in the CP Notes prior to the initial offer to
purchase a CP Note or CP Notes by such investor, (ii)
you will not solicit offers for, or offer or sell, CP
Notes by any form of general solicitation or general
advertising or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act
of 1933, as amended (the "Securities Act"), and Rule
506 thereunder, and (iii) you will solicit offers for CP
Notes only from, and will offer CP Notes only to,
(x)institutional investors that you reasonably believe
are "accredited investors" within the meaning of Rule
501(a) under the Securities Act or (y) qualified
institutional buyers as defined in Rule 144A under the
Securities Act ("QIBs") and, in either case, who, in
purchasing CP Notes, may be deemed to have represented
and agreed as provided in paragraphs (1) through (4) of
Section 2(b).
(b) Each Private Placement Memorandum shall
contain paragraphs in substantially the following form:
"Each purchaser of a CP Note will be deemed to
have represented and agreed as follows:
(1) It understands that the CP Notes are
being issued only in transactions not
involving any public offering within the
meaning of the Securities Act;
(2) It is (A) an institutional investor which
is an "Accredited Investor," as defined in
Rule 501(a) of Regulation D under the
Securities Act (an "Institutional
Accredited Investor"), or a "bank," as
defined in Section 3(a)(2) of the
Securities Act, or a savings and loan
association or other institution of the
type referred to in Section 3(a)(5)(A) of
the Securities Act, that is acting as a
fiduciary in purchasing the CP Notes for
the account of an Institutional
Accredited Investor, which has such
knowledge and experience (or, if such
Institutional Accredited Investor is
acting as a fiduciary, it is a fiduciary
with sole investment discretion having
such knowledge and experience) in
financial and business matters that it is
capable (whether acting for its own
account or in such fiduciary capacity) of
evaluating the merits and risks of
investing in such CP Notes, has had
access to such information as it deems
necessary in order to make an informed
investment decision and is not purchasing
the CP Notes with a view to, or for sale
in connection with, any distribution; or
2
<PAGE>
(B) in the case of sales of CP Notes
pursuant to Rule 144A under the
Securities Act, a "qualified
institutional buyer," as defined in Rule
144A under the Securities Act (a "QIB"),
or a QIB purchasing the CP Notes on
behalf of one or more other QIBs;
(3) If in the future it (or any other investor
or any other fiduciary or agent
representing it) decides to sell such CP
Notes prior to maturity, said CP Notes
will be sold only in a transaction exempt
from registration under the Securities
Act and only to (i) you or another dealer
authorized by the Company (each, a
"Dealer"), (ii) to the Company or any
other Issuer, (iii) to a QIB, (iv)
through a Dealer to an institutional
investor approved by the Dealer as an
Institutional Accredited Investor or (v)
in a transaction previously approved in
writing by the Company as exempt from
registration under the Securities Act;
(4) It understands that, although you (or any
other Dealer), the Company or another
Issuer may repurchase CP Notes, none of
such entities is obligated to do so, and,
accordingly, the purchaser (or any such
other investor) should be prepared to
hold the CP Notes until maturity;
(5) It acknowledges that the CP Notes sold
to it by you may be sold to it pursuant to
Rule 144A under the Securities Act;
(6) It understands that the CP Notes will
bear a legend substantially as follows:
THIS CP NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THE
INITIAL SALE OF THIS CP NOTE MAY BE MADE
ONLY TO AN INSTITUTIONAL "ACCREDITED
INVESTOR,"AS DEFINED IN RULE 501(a) UNDER
THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), OR A "QUALIFIED
INSTITUTIONAL BUYER," AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT (A "QIB").
BY ITS ACCEPTANCE OF THIS CP NOTE, THE
PURCHASER HEREOF (A) REPRESENTS THAT IT
IS (i) AN INSTITUTIONAL ACCREDITED
INVESTOR OR A "BANK," AS DEFINED IN
SECTION 3(a)(2) OF THE SECURITIES ACT, OR
A SAVINGS AND LOAN ASSOCIATION OR OTHER
INSTITUTION OF THE TYPE REFERRED TO IN
SECTION 3(a)(5)(A) OF THE SECURITIES
ACT, THAT IS ACTING AS A FIDUCIARY ON
3
<PAGE>
BEHALF OF AN INSTITUTIONAL ACCREDITED
INVESTOR AND THAT THIS CP NOTE IS BEING
ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO DISTRIBUTION OR (ii) A QIB ACTING
ON BEHALF OF ITSELF OR ANOTHER QIB, AND
(B) AGREES THAT ANY RESALE OF THIS CP
NOTE WILL BE MADE ONLY IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT (INCLUDING, IN THE CASE OF
A SALE BY A QIB, A TRANSACTION EXEMPT
PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT), AND, IN EACH CASE, ONLY
TO (i) BA SECURITIES, INC. OR ANOTHER
DEALER AUTHORIZED BY THE COMPANY (EACH, A
"DEALER"), (ii) TO MIRAGE RESORTS,
INCORPORATED (THE "COMPANY"), (iii) TO
THE MIRAGE CASINO-HOTEL, TREASURE ISLAND
CORP., BELLAGIO, GNLV, CORP. OR MH, INC.,
(iv) THROUGH A DEALER TO AN INSTITUTIONAL
INVESTOR APPROVED BY THE DEALER AS AN
INSTITUTIONAL ACCREDITED INVESTOR, (v) TO
A QIB OR (vi) IN A TRANSACTION PREVIOUSLY
APPROVED IN WRITING BY THE COMPANY IN ITS
SOLE AND ABSOLUTE DISCRETION AS EXEMPT
FROM REGISTRATION UNDER THE SECURITIES
ACT;
and
(7) It has received the Private Placement
Memorandum relating to the offering of the
CP Notes and has had full opportunity (i) to
ask questions and receive answers concerning
the terms and conditions of the offering
made pursuant to such Private Placement
Memorandum and (ii) to request from the
Company and the other Issuers and to
review, and has received, all additional
information necessary to verify the
accuracy of the information contained in
such Private Placement Memorandum or
incorporated therein by reference that
the Issuers could provide without
unreasonable effort or expense."
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to and agrees with
you as of the date hereof, as of each date on which you
solicit offers to purchase CP Notes, as of each date on
which the Company accepts an offer to purchase CP Notes
(including any purchase by you as principal), as of each
date the Issuers issue and deliver CP Notes and as of
each date the Private Placement Memorandum is amended or
supplemented, as follows (it being understood that such
representations, warranties and agreements shall be
deemed to relate to the Private Placement Memorandum as
amended or supplemented to each such date):
(a) Each Issuer has been duly incorporated,is
validly existing as a corporation in good standing under
the laws of the State of Nevada. The Company has full
power and authority to execute, deliver and perform this
4
<PAGE>
Agreement. Each Issuer has full power and authority to
execute, deliver and perform its respective obligations
under the CP Notes and the Paying Agency Agreement.
(b) The CP Notes have been duly authorized by
the Issuers and, when executed and authenticated in
accordance with the provisions of the Paying Agency
Agreement and delivered to and paid for by the
purchasers thereof, will be entitled to the benefits of
the Paying Agency Agreement and will be valid and
binding obligations of the Issuers, enforceable in
accordance with their respective terms, except that (i)
the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (ii) rights of
acceleration and the availability of equitable remedies
may be limited by equitable principles of general
applicability, (iii) rights to indemnity and
contribution may be limited by state or federal laws
relating to securities or by the policies underlying
such laws and (iv) no representation, warranty or
agreement is made with respect to any purported waivers
of rights or defenses.
(c) This Agreement has been duly authorized,
executed and delivered by the Company.
(d) The Paying Agency Agreement has been duly
authorized, executed and delivered by the Issuers and,
assuming the due authorization, execution and delivery
by the Paying Agent, is a valid and binding agreement of
the Issuers, enforceable in accordance with its terms,
except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally,
(ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable
principles of general applicability, (iii) rights to
indemnity and contribution may be limited by state or
federal laws relating to securities or by the policies
underlying such laws and (iv) no representation,
warranty or agreement is made with respect to any
purported waivers of rights or defenses.
(e) The execution and delivery by the Company
of, and the performance by the Company of its
obligations under, this Agreement, and the execution and
delivery by the Issuers of, and the performance by the
Issuers of their respective obligations under, the CP
Notes and the Paying Agency Agreement will not
contravene any provision of applicable law or the
Articles of Incorporation or Bylaws of any Issuer or any
agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or
any subsidiary of the Company, the contravention of
which would have a material adverse effect on the
5
<PAGE>
business of the Company and its subsidiaries, taken as a
whole, and no consent, approval, authorization or order
of or qualification with any governmental body or agency
is required for the performance by the Company of its
obligations under this Agreement, or by the Issuers of
their respective obligations under the CP Notes and the
Paying Agency Agreement, except such as may be required
by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the CP Notes
and except for such approval under the Nevada Gaming
Control Act and the regulations promulgated thereunder
as has been obtained and is in full force and effect.
(f) The issuance and sale of the CP Notes
under the circumstances contemplated hereby and by the
Paying Agency Agreement do not require registration of
the CP Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2)
thereof and the regulations promulgated thereunder and
do not require compliance with any provision of the
Trust Indenture Act of 1939, as amended.
(g) No Issuer is an "investment company" or an
entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940,
as amended.
(h) There has not occurred any material
adverse change, or any development involving a
prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as
a whole, from that set forth in the Private Placement
Memorandum.
(i) The CP Notes satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act.
SECTION 4. AGREEMENTS. The Company agrees
with you that:
(a) The Company will promptly deliver to you
copies of all (i) filings by the Company with the
Securities and Exchange Commission and any United States
securities exchange on which securities of any Issuer
are listed and (ii) all material information generally
supplied by the Company to its shareholders or by any
Issuer to any of Standard & Poor's Ratings Group,
Moody's Investor Services, Inc. or Duff & Phelps Credit
Rating Co. (collectively, the "Rating Agencies").
(b) The Company will provide to you as soon as
practicable a Private Placement Memorandum containing
business and financial information concerning the
Company and a description of the CP Notes which (with
any amendments or supplements provided by the Company)
may be used by you in connection with the sale of the CP
Notes until the Company provides you with an updated or
revised memorandum (such Private Placement Memorandum,
together with any amendments or supplements thereto,
including information incorporated therein by reference,
if any, is herein referred to as the "Private Placement
Memorandum").
6
<PAGE>
(c) If, at any time when you are offering CP
Notes or any CP Notes are outstanding, any event occurs
or condition exists as a result of which the Private
Placement Memorandum as then amended or supplemented
would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
existing when such Private Placement Memorandum is
delivered to a purchaser, not misleading, or if, in your
opinion or the opinion of the Company, it is necessary
at any time to amend or supplement the Private Placement
Memorandum as then amended or supplemented to comply
with applicable law, the Company will notify you as
promptly as practicable and will prepare and furnish to
you a revision or supplement to the Private Placement
Memorandum satisfactory in all material respects to you,
that will correct such statement or omission or effect
such compliance.
(d) The Company will, whether or not any sale
of CP Notes is consummated, pay all reasonable out-of
pocket expenses incurred by you incident to the
performance of its obligations under this Agreement, the
CP Notes and the Paying Agency Agreement, including,
without limitation, reasonable fees and expenses of your
counsel.
(e) The Company will notify you promptly in
writing of any downgrading, or of its receipt of any
notice of any intended or potential downgrading or of
any review for a possible change that does not indicate
the direction of the possible change, in the rating
accorded any of the Issuer's securities by any of the
Rating Agencies.
(f) The Company agrees promptly from time to
time to take such action as you may reasonably request
to qualify the CP Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you
may reasonably request and to maintain such
qualifications for as long as you shall reasonably
request. The Company also agrees to reimburse you for
any reasonable fees or costs (including reasonable out-
of-pocket fees and disbursements of counsel) incurred in
so qualifying the CP Notes.
(g) The Issuers will not sell, offer for sale
or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities
Act) which could be integrated with the sale of the CP
Notes in a manner which would require the registration
under the Securities Act of the offer and sale of such
CP Notes.
(h) The Issuers will not solicit any offer to
buy or offer to sell CP Notes by means of any form of
general solicitation or general advertising, within the
meaning of Rule 502(c) under the Securities Act or
otherwise, including: (x) any advertisement, article,
notice or other communication published in any
newspaper, magazine or similar media or broadcast over
television or radio; and (y) any seminar or meeting
whose attendees have been invited by any general
solicitation or general advertising.
7
<PAGE>
(i) The Company will furnish to you such
additional information as you may reasonably request.
(j) At any time when the Company is not
subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Company shall make
available, upon request, to any holder, beneficial owner
or prospective purchaser of any CP Notes the information
required to be delivered to such persons pursuant to
Rule 144A(d)(4) under the Securities Act and will
furnish to you, upon request, copies of such
information.
SECTION 5. INDEMNITY AND CONTRIBUTION. The
Company agrees to (i) indemnify and hold harmless you
and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as
amended (you and each such other person are collectively
referred to herein as "you"), from and against any and
all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a
material fact contained in the Private Placement
Memorandum (as amended or supplemented if the Company
shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission
to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (ii) reimburse you for all reasonable
out-of-pocket expenses (including reasonable counsel
fees) as they are incurred by you in connection with
investigating or defending any such loss, claim, damage
or liability. The foregoing indemnity and reimbursement
obligation shall not apply in respect of any statement
in or omission from the Private Placement Memorandum (as
so amended or supplemented) based on information
pertaining to you furnished to the Company by you, or on
your behalf. The Company shall not, without your prior
written consent, effect any settlement of any pending or
threatened proceeding in respect of which you are or
could have been a party and indemnity could have been
sought hereunder by you, unless such settlement includes
an unconditional release of you from all liability on
claims that are the subject matter of such proceeding
and for which indemnity could have been sought
hereunder. If the indemnification provided for in this
Section 5 is unavailable or insufficient in respect of
any losses, claims, damages or liabilities referred to
herein, then you, on the one hand, and the Company, on
the other hand, shall contribute to the amount paid or
payable by you as a result of such losses, claims,
damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received by
you, on the one hand, and the Company, on the other
hand, or, if such allocation is not permitted by
applicable law, to reflect not only the relative
benefits referred to above but also the relative fault
of each of the parties and any other relevant equitable
considerations.
8
<PAGE>
SECTION 6. PAYMENT AND DELIVERY. (a) Payment
for CP Notes sold to or through you pursuant to this
Agreement shall be made by you in immediately available
funds payable to the Paying Agent for the account of the
Company in such manner and at such time as provided in
the Paying Agency Agreement, at the offices of the
Paying Agent. Delivery of CP Notes sold to or through
you hereunder shall be made against payment of the
purchase price therefor by the Paying Agent to you
through the facilities of The Depository Trust Company
or in definitive form payable to the bearer (and in such
denominations as may reasonably be requested by you) by
2:15 p.m. New York time on the date agreed upon for
delivery.
(b) In the event the Company shall direct the
Paying Agent to cease issuing CP Notes, the Paying Agent
shall be instructed by the Company to issue such CP
Notes as you shall certify were sold within sixty (60)
minutes after your receipt of written notice of such
cessation and for which you had the prior agreement of
the Company pursuant to Section 1 of this Agreement.
You agree upon receipt of any such cessation notice to
immediately cease effecting transactions in CP Notes;
provided, however, that this provision shall have no
effect with respect to CP Notes purchased by you as
principal from the Company.
SECTION 7. CONDITIONS OF YOUR OBLIGATION.
Your obligation to solicit offers to purchase CP Notes
as agent of the Issuers, your obligation to purchase CP
Notes as principal and the obligation of any other
purchaser to purchase CP Notes will be subject to the
accuracy of the representations and warranties on the
part of the Company herein and to the performance and
observance by the Company of all agreements herein
contained on its part to be performed and observed (in
the case of your obligation to solicit offers to
purchase CP Notes, at the time of such solicitation,
and, in the case of your or any other purchaser's
obligation to purchase CP Notes, at the time the Company
accepts the offer to purchase such CP Notes and at the
time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase:
(i) there shall not have occurred any
change, or any development involving a
prospectivechange, in the condition,
financial or otherwise, or in the earnings,
business or operations of the Company and
its subsidiaries from that set forth in the
Private Placement Memorandum, as amended
or supplemented, that, in your reasonable
judgment, is material and adverse to the
Company and its subsidiaries, taken as a
whole, and that makes it, in your
reasonable judgment, impracticable to
market the CP Notes; and
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<PAGE>
(ii) there shall not have occurred any
downgrading, nor shall any notice have
been given of any intended or potential
downgrading or of any review for a
possible change that does not indicate
the direction of the possible change, in
the rating accorded any of the Issuer's
securities by any of the Rating Agencies;
except, in each case described in paragraph (a)(i) or
(ii) above, as disclosed to you in writing by the Company
prior to such solicitation or, in the case of a purchase
of CP Notes, as disclosed to you before the offer to
purchase such CP Notes was made.
(b) The following documents shall have been
provided to you at or promptly following the execution
of this Agreement:
(i) an executed copy of the Paying Agency
Agreement;
(ii) a certified copy of resolutions of
the Board of Directors of each Issuer
authorizing (a) the issuance of the CP
Notes and (b) the execution and delivery
of this Agreement (in the case of the
Company only) and the Paying Agency
Agreement;
(iii) opinions of counsel to the Company
substantially in the forms of Exhibits A-
1 and A-2 hereto; and
(iv) all other documents reasonably
requested by you.
SECTION 8. NOTICES. All communications
hereunder will be in writing and effective only on
receipt, and, if sent to you, will be mailed, delivered
or telecopied and confirmed to BA Securities, Inc. at
555 California Street, Ninth Floor, San Francisco,
California 94104, Attention: Jeff Berry (telecopy
number: 415-622-3429), or, if sent to the Company,
will be mailed, delivered, or telecopied and confirmed
to the Company at 3400 Las Vegas Boulevard South, Las
Vegas, Nevada 89109, Attention: Chief Financial Officer
(telecopy number: (702) 792-7628), or to either of the
foregoing parties, or their successors, at such other
address as such party or successor may designate from
time to time by notice duly given in accordance with the
terms of this Section 8 to the other party hereto.
SECTION 9. AMENDMENTS; SUCCESSORS. (a)
This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and
is signed by the Company and you. This Agreement is not
assignable by either party hereto without the written
consent of the other party.
10
<PAGE>
(b) This Agreement will inure to the
benefit of and be binding upon the parties hereto and
their respective successors and the controlling persons
referred to in Section 5 and the purchasers of CP
Notes (to the extent expressly provided in Section 7),
and no other person will have any right or obligation
hereunder.
(c) The Company will give you notice of
any proposed cancellation, amendment, supplement, waiver
or consent to or under the Paying Agency Agreement at
least seven (7) days prior to the effective date
thereof.
SECTION 10. TERMINATION. This Agreement
may be terminated at any time by either party hereto
upon the giving of written notice of such termination to
the other party hereto, but without prejudice to any
rights, obligations or liabilities of either party
hereto accrued or incurred prior to such termination.
If this Agreement is terminated, the provisions of
Sections 3, 4(d), 4(f), 4(g) and 5 shall survive and
continue in full force and effect.
SECTION 11. GOVERNING LAW. This Agreement
shall be governed by and construed in accordance with
the internal laws of the State of New York.
SECTION 12. COUNTERPARTS. This Agreement may
be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same
instrument.
SECTION 13. HEADINGS. The headings of the
sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return
to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding
agreement between the Company and you.
Very truly yours,
MIRAGE RESORTS,
INCORPORATED
By:/s/ Daniel R. Lee
Daniel R. Lee
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
BA SECURITIES, INC.
By:/s/ Robert J. Porter
Name: Robert J. Porter
Title: Managing Director
11
COMMERCIAL PAPER DEALER AGREEMENT
November 13, 1995
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Mirage Resorts, Incorporated, a Nevada corporation
(the "Company"), hereby appoints you as its agent, and as
agent for THE MIRAGE CASINO-HOTEL, Treasure Island Corp.,
Bellagio, GNLV, CORP. and MH, INC., each of which is a
Nevada corporation and a direct or indirect wholly owned
subsidiary of the Company (collectively, the "Co-Issuing
Subsidiaries" and, together with the Company, the
"Issuers"), on a non-exclusive basis for the purpose of
soliciting and receiving offers to purchase from the Issuers
from time to time their commercial paper notes, maturing not
later than nine months from date of issue (the "CP Notes")
in an aggregate principal amount outstanding not to exceed
the amount authorized from time to time by the Board of
Directors of the Company. The CP Notes will be issued under
an Issuing and Paying Agency Agreement dated as of November
13, 1995 (the "Paying Agency Agreement") between the Issuers
and BankAmerica National Trust Company, as Issuing and
Paying Agent (the "Paying Agent"), and will be issued in
denominations of $150,000 and integral multiples of $1,000
in excess thereof. The Issuers may sell CP Notes directly
to you as principal for resale to others. For purposes of
this Agreement, the Company will act for itself and on
behalf of the Co-Issuing Subsidiaries.
SECTION 1. ISSUANCE AND PURCHASE OF THE CP NOTES.
If you and the Company shall agree upon the sale of any CP
Notes to or through you (including, but not limited to,
agreement with respect to the price, principal amount,
maturity and interest or discount rate thereof), (i)
instructions to the Paying Agent to complete, authenticate
and deliver the CP Notes shall be given in the manner
described in the Paying Agency Agreement and (ii) the
authentication and delivery to you of such CP Notes by the
Paying Agent against payment of the purchase price therefor
shall constitute the issuance of such CP Notes by the
Issuers.
SECTION 2. OFFERING OF THE CP NOTES; RESTRICTIONS
ON TRANSFER. (a) You agree with the Company that (i) you
will deliver a Private Placement Memorandum (as hereinafter
defined) to each prospective investor in the CP Notes prior
to the initial offer to purchase a CP Note or CP Notes by
such investor, (ii) you will not solicit offers for, or
offer or sell, CP Notes by any form of general solicitation
or general advertising or in any manner involving a public
Exhibit 99.3
<PAGE>
offering within the meaning of Section 4(2) of the
Securities Act of 1933, as amended (the "Securities Act"),
and Rule 506 thereunder, and (iii) you will solicit offers
for CP Notes only from, and will offer CP Notes only to, (x)
institutional investors that you reasonably believe are
"accredited investors" within the meaning of Rule 501(a)
under the Securities Act or (y) qualified institutional
buyers as defined in Rule 144A under the Securities Act
("QIBs") and, in either case, who, in purchasing CP Notes,
may be deemed to have represented and agreed as provided in
paragraphs (1) through (4) of Section 2(b).
(b) Each Private Placement Memorandum shall
contain paragraphs in substantially the following form:
"Each purchaser of a CP Note will be deemed to
have represented and agreed as follows:
(1) It understands that the CP Notes are
being issued only in transactions not
involving any public offering within the
meaning of the Securities Act;
(2) It is (A) an institutional investor
which is an "Accredited Investor," as defined
in Rule 501(a) of Regulation D under the
Securities Act (an "Institutional Accredited
Investor"), or a "bank," as defined in
Section 3(a)(2) of the Securities Act, or a
savings and loan association or other
institution of the type referred to in
Section 3(a)(5)(A) of the Securities Act,
that is acting as a fiduciary in purchasing
the CP Notes for the account of an
Institutional Accredited Investor, which has
such knowledge and experience (or, if such
Institutional Accredited Investor is acting
as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge
and experience) in financial and business
matters that it is capable (whether acting
for its own account or in such fiduciary
capacity) of evaluating the merits and risks
of investing in such CP Notes, has had access
to such information as it deems necessary in
order to make an informed investment decision
and is not purchasing the CP Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of
CP Notes pursuant to Rule 144A under the
Securities Act, a "qualified institutional
buyer," as defined in Rule 144A under the
Securities Act (a "QIB"), or a QIB purchasing
the CP Notes on behalf of one or more other
QIBs;
(3) If in the future it (or any other
investor or any other fiduciary or agent
representing it) decides to sell such CP
Notes prior to maturity, said CP Notes will
be sold only in a transaction exempt from
registration under the Securities Act and
only to (i) you or another dealer authorized
2
<PAGE>
by the Company (each, a "Dealer"), (ii) to
the Company or any other Issuer, (iii) to a
QIB, (iv) through a Dealer to an
institutional investor approved by the Dealer
as an Institutional Accredited Investor or
(v) in a transaction previously approved in
writing by the Company as exempt from
registration under the Securities Act;
(4) It understands that, although you (or
any other Dealer), the Company or another
Issuer may repurchase CP Notes, none of such
entities is obligated to do so, and,
accordingly, the purchaser (or any such other
investor) should be prepared to hold the CP
Notes until maturity;
(5) It acknowledges that the CP Notes sold
to it by you may be sold to it pursuant to
Rule 144A under the Securities Act;
(6) It understands that the CP Notes will
bear a legend substantially as follows:
THIS CP NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THE INITIAL SALE
OF THIS CP NOTE MAY BE MADE ONLY TO AN
INSTITUTIONAL "ACCREDITED INVESTOR," AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"),
OR A "QUALIFIED INSTITUTIONAL BUYER," AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT
(A "QIB"). BY ITS ACCEPTANCE OF THIS CP
NOTE, THE PURCHASER HEREOF (A) REPRESENTS
THAT IT IS (I) AN INSTITUTIONAL ACCREDITED
INVESTOR OR A "BANK," AS DEFINED IN SECTION
3(a)(2) OF THE SECURITIES ACT, OR A SAVINGS
AND LOAN ASSOCIATION OR OTHER INSTITUTION OF
THE TYPE REFERRED TO IN SECTION 3(a)(5)(A) OF
THE SECURITIES ACT, THAT IS ACTING AS A
FIDUCIARY ON BEHALF OF AN INSTITUTIONAL
ACCREDITED INVESTOR AND THAT THIS CP NOTE IS
BEING ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO DISTRIBUTION OR (ii) A QIB ACTING ON
BEHALF OF ITSELF OR ANOTHER QIB, AND (B)
AGREES THAT ANY RESALE OF THIS CP NOTE WILL
BE MADE ONLY IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT
(INCLUDING, IN THE CASE OF A SALE BY A QIB, A
TRANSACTION EXEMPT PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT), AND, IN EACH CASE,
ONLY TO (i) MORGAN STANLEY & CO. INCORPORATED
OR ANOTHER DEALER AUTHORIZED BY THE COMPANY
(EACH, A "DEALER"), (ii) TO MIRAGE RESORTS,
INCORPORATED (THE "COMPANY"), (iii) TO THE
MIRAGE CASINO-HOTEL, TREASURE ISLAND CORP.,
BELLAGIO, GNLV, CORP. OR MH, INC., (iv)
THROUGH A DEALER TO AN INSTITUTIONAL INVESTOR
APPROVED BY THE DEALER AS AN INSTITUTIONAL
ACCREDITED INVESTOR, (v) TO A QIB OR (vi) IN
A TRANSACTION PREVIOUSLY APPROVED IN WRITING
3
<PAGE>
BY THE COMPANY IN ITS SOLE AND ABSOLUTE
DISCRETION AS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT;
and
(7) It has received the Private Placement
Memorandum relating to the offering of the CP
Notes and has had full opportunity (i) to ask
questions and receive answers concerning the
terms and conditions of the offering made
pursuant to such Private Placement Memorandum
and (ii) to request from the Company and the
other Issuers and to review, and has
received, all additional information
necessary to verify the accuracy of the
information contained in such Private
Placement Memorandum or incorporated therein
by reference that the Issuers could provide
without unreasonable effort or expense."
SECTION 3. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to and agrees with you as of
the date hereof, as of each date on which you solicit offers
to purchase CP Notes, as of each date on which the Company
accepts an offer to purchase CP Notes (including any
purchase by you as principal), as of each date the Issuers
issue and deliver CP Notes and as of each date the Private
Placement Memorandum is amended or supplemented, as follows
(it being understood that such representations, warranties
and agreements shall be deemed to relate to the Private
Placement Memorandum as amended or supplemented to each such
date):
(a) Each Issuer has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the State of Nevada. The Company has full power
and authority to execute, deliver and perform this
Agreement. Each Issuer has full power and authority to
execute, deliver and perform its respective obligations
under the CP Notes and the Paying Agency Agreement.
(b) The CP Notes have been duly authorized
by the Issuers and, when executed and authenticated in
accordance with the provisions of the Paying Agency
Agreement and delivered to and paid for by the purchasers
thereof, will be entitled to the benefits of the Paying
Agency Agreement and will be valid and binding obligations
of the Issuers, enforceable in accordance with their
respective terms, except that (i) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability, (iii) rights to indemnity and contribution
may be limited by state or federal laws relating to
securities or by the policies underlying such laws and (iv)
no representation, warranty or agreement is made with
respect to any purported waivers of rights or defenses.
4
<PAGE>
(c) This Agreement has been duly authorized,
executed and delivered by the Company.
(d) The Paying Agency Agreement has been
duly authorized, executed and delivered by the Issuers and,
assuming the due authorization, execution and delivery by
the Paying Agent, is a valid and binding agreement of the
Issuers, enforceable in accordance with its terms, except
that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or
affecting creditors' rights generally, (ii) rights of
acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability,
(iii) rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the
policies underlying such laws and (iv) no representation,
warranty or agreement is made with respect to any purported
waivers of rights or defenses.
(e) The execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, and the execution and
delivery by the Issuers of, and the performance by the
Issuers of their respective obligations under, the CP Notes
and the Paying Agency Agreement, will not contravene any
provision of applicable law or the Articles of Incorporation
or Bylaws of any Issuer or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company
or any subsidiary of the Company, the contravention of which
would have a material adverse effect on the business of the
Company and its subsidiaries, taken as a whole, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement, or by the Issuers of their
respective obligations under the CP Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connec
tion with the offer and sale of the CP Notes and except for
such approval under the Nevada Gaming Control Act and the
regulations promulgated thereunder as has been obtained and
is in full force and effect.
(f) The issuance and sale of the CP Notes
under the circumstances contemplated hereby and by the
Paying Agency Agreement do not require registration of the
CP Notes under the Securities Act, pursuant to the exemption
from registration contained in Section 4(2) thereof and the
regulations promulgated thereunder and do not require
compliance with any provision of the Trust Indenture Act of
1939, as amended.
(g) No issuer is an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company, Act of 1940, as
amended.
5
<PAGE>
(h) There has not occurred any material
adverse change, or any development involving a prospective
material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that
set forth in the Private Placement Memorandum.
(i) The CP Notes satisfy the requirements
set forth in Rule 144A(d)(3) under the Securities Act.
SECTION 4. AGREEMENTS. The Company agrees with
you that:
(a) The Company will promptly deliver to you
copies of all (i) filings by the Company with the Securities
and Exchange Commission and any United States securities
exchange on which securities of any Issuer are listed and
(ii) all material information generally supplied by the
Company to its shareholders or by any Issuer to any of
Standard & Poor's Ratings Group, Moody's Investor Services,
Inc. or Duff & Phelps Credit Rating Co. (collectively, the
"Rating Agencies").
(b) The Company will provide to you as soon
as practicable a Private Placement Memorandum containing
business and financial information concerning the Company
and a description of the CP Notes which (with any amendments
or supplements provided by the Company) may be used by you
in connection with the sale of the CP Notes until the
Company provides you with an updated or revised memorandum
(such Private Placement Memorandum, together with any
amendments or supplements thereto, including information
incorporated therein by reference, if any, is herein
referred to as the "Private Placement Memorandum").
(c) If, at any time when you are offering CP
Notes or any CP Notes are outstanding, any event occurs or
condition exists as a result of which the Private Placement
Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in
the light of the circumstances existing when such Private
Placement Memorandum is delivered to a purchaser, not
misleading, or if, in your opinion or the opinion of the
Company, it is necessary at any time to amend or supplement
the Private Placement Memorandum as then amended or
supplemented to comply with applicable law, the Company will
notify you as promptly as practicable and will prepare and
furnish to you a revision or supplement to the Private
Placement Memorandum satisfactory in all material respects
to you, that will correct such statement or omission or
effect such compliance.
(d) The Company will, whether or not any
sale of CP Notes is consummated, pay all reasonable out-of-
pocket expenses incurred by you incident to the performance
of its obligations under this Agreement, the CP Notes and
the Paying Agency Agreement, including, without limitation,
reasonable fees and expenses of your counsel.
6
<PAGE>
(e) The Company will notify you promptly in
writing of any downgrading, or of its receipt of any notice
of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the
Issuers' securities by any of the Rating Agencies.
(f) The Company agrees promptly from time to
time to take such action as you may reasonably request to
qualify the CP Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions as you may reasonably
request and to maintain such qualifications for as long as
you shall reasonably request. The Company also agrees to
reimburse you for any reasonable fees or costs (including
reasonable out-of-pocket fees and disbursements of counsel)
incurred in so qualifying the CP Notes.
(g) The Issuers will not sell, offer for
sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act)
which could be integrated with the sale of the CP Notes in a
manner which would require the registration under the
Securities Act of the offer and sale of such CP Notes.
(h) The Issuers will not solicit any offer
to buy or offer to sell CP Notes by means of any form of
general solicitation or general advertising, within the
meaning of Rule 502(c) under the Securities Act or
otherwise, including: (x) any advertisement, article, notice
or other communication published in any newspaper, magazine
or similar media or broadcast over television or radio; and
(y) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(i) The Company will furnish to you such
additional information as you may reasonably request.
(j) At any time when the Company is not
subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Company shall make available,
upon request, to any holder, beneficial owner or prospective
purchaser of any CP Notes the information required to be
delivered to such persons pursuant to Rule 144A(d)(4) under
the Securities Act and will furnish to you, upon request,
copies of such information.
SECTION 5. INDEMNITY AND CONTRIBUTION. The
Company agrees to (i) indemnify and hold harmless you and
each person, if any, who controls you within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (you and each
such other person are collectively referred to herein as
"you"), from and against any and all losses, claims, damages
and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in the Private
Placement Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and (ii) reimburse you for all reasonable out-of-pocket
7
<PAGE>
expenses (including reasonable counsel fees) as they are
incurred by you in connection with investigating or
defending any such loss, claim, damage or liability. The
foregoing indemnity and reimbursement obligation shall not
apply in respect of any statement in or omission from the
Private Placement Memorandum (as so amended or supplemented)
based on information pertaining to you furnished to the
Company by you, or on your behalf. The Company shall not,
without your prior written consent, effect any settlement of
any pending or threatened proceeding in respect of which you
are or could have been a party and indemnity could have been
sought hereunder by you, unless such settlement includes an
unconditional release of you from all liability on claims
that are the subject matter of such proceeding and for which
indemnity could have been sought hereunder. If the
indemnification provided for in this Section 5 is
unavailable or insufficient in respect of any losses,
claims, damages or liabilities referred to herein, then you,
on the one hand, and the Company, on the other hand, shall
contribute to the amount paid or payable by you as a result
of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative
benefits received by you, on the one hand, and the Company,
on the other hand, or, if such allocation is not permitted
by applicable law, to reflect not only the relative benefits
referred to above but also the relative fault of each of the
parties and any other relevant equitable considerations.
SECTION 6. PAYMENT AND DELIVERY. (a) Payment for
CP Notes sold to or through you pursuant to this Agreement
shall be made by you in immediately available funds payable
to the Paying Agent for the account of the Company in such
manner and at such time as provided in the Paying Agency
Agreement, at the offices of the Paying Agent. Delivery of
CP Notes sold to or through you hereunder shall be made
against payment of the purchase price therefor by the Paying
Agent to you through the facilities of The Depository Trust
Company or in definitive form payable to the bearer (and in
such denominations as may reasonably be requested by you) by
2:15 p.m., New York time, on the date agreed upon for
delivery.
(b) In the event the Company shall direct
the Paying Agent to cease issuing CP Notes, the Paying Agent
shall be instructed by the Company to issue such CP Notes as
you shall certify were sold within sixty (60) minutes after
your receipt of written notice of such cessation and for
which you had the prior agreement of the Company pursuant to
Section 1 of this Agreement. You agree upon receipt of any
such cessation notice to immediately cease effecting
transactions in CP Notes; provided, however, that this
provision shall have no effect with respect to CP Notes
purchased by you as principal from the Company.
SECTION 7. CONDITIONS OF YOUR OBLIGATION. Your
obligation to solicit offers to purchase CP Notes as agent
of the Issuers, your obligation to purchase CP Notes as
principal and the obligation of any other purchaser to
purchase CP Notes will be subject to the accuracy of the
representations and warranties on the part of the Company
herein and to the performance and observance by the Company
8
<PAGE>
of all agreements herein contained on its part to be
performed and observed (in the case of your obligation to
solicit offers to purchase CP Notes, at the time of such
solicitation, and, in the case of your or any other
purchaser's obligation to purchase CP Notes, at the time the
Company accepts the offer to purchase such CP Notes and at
the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase:
(i) there shall not have occurred any
change, or any development involving a prospective change,
in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries from that set forth in the Private Placement
Memorandum, as amended or supplemented, that, in your
reasonable judgment, is material and adverse to the Company
and its subsidiaries, taken as a whole, and that makes it,
in your reasonable judgment, impracticable to market the CP
Notes; and
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Issuers'
securities by any of the Rating Agencies;
except, in each case described in paragraph (a)(i) or (ii)
above, as disclosed to you in writing by the Company prior
to such solicitation or, in the case of a purchase of CP
Notes, as disclosed to you before the offer to purchase such
CP Notes was made.
(b) The following documents shall have been
provided to you at or promptly following the execution of
this Agreement:
(i) an executed copy of the Paying
Agency Agreement;
(ii) a certified copy of resolutions of
the Board of Directors of each Issuer authorizing (a) the
issuance of the CP Notes and (b) the execution and delivery
of this Agreement (in the case of the Company only) and the
Paying Agency Agreement;
(iii) opinions of counsel to the
Company substantially in the forms of Exhibits A-1 and A-2
hereto; and
(iv) all other documents reasonably
requested by you.
SECTION 8 NOTICES. All communications hereunder
will be in writing and effective only on receipt, and, if
sent to you, will be mailed, delivered or telecopied and
confirmed to Morgan Stanley & Co. Incorporated at 1221
Avenue of the Americas, New York, New York 10020, Attention:
9
<PAGE>
Manager, Continuously Offered Products Department (telecopy
number: (212) 764-7490), with a copy to 1251 Avenue of the
Americas, New York, New York 10020, Attention: Manager,
Credit Department (telecopy number: (212) 703-4575), or, if
on or after November 13, 1995, at 1585 Broadway, Second
Floor, New York, New York 10036 (telecopier number: (212)
761-0783), or, if sent to the Company, will be mailed,
delivered, or telecopied and confirmed to the Company at
3400 Las Vegas Boulevard South, Las Vegas, Nevada 89109,
Attention: Chief Financial Officer (telecopy number: (702)
792-7628), or to either of the foregoing parties, or their
successors, at such other address as such party or successor
may designate from time to time by notice duly given in
accordance with the terms of this Section 8 to the other
party hereto.
SECTION 9. AMENDMENTS; SUCCESSORS. (a) This
Agreement may be amended or supplemented if, but only if,
such amendment or supplement is in writing and is signed by
the Company and you. This Agreement is not assignable by
either party hereto without the written consent of the other
party.
(b) This Agreement will inure to the benefit
of and be binding upon the parties hereto and their
respective successors and the controlling persons referred
to in Section 5 and the purchasers of CP Notes (to the
extent expressly provided in Section 7), and no other person
will have any right or obligation hereunder.
(c) The Company will give you notice of any
proposed cancellation, amendment, supplement, waiver or
consent to or under the Paying Agency Agreement at least
seven (7) days prior to the effective date thereof.
SECTION 10. TERMINATION. This Agreement may be
terminated at any time by either party hereto upon the
giving of written notice of such termination to the other
party hereto, but without prejudice to any rights,
obligations or liabilities of either party hereto accrued or
incurred prior to such termination. If this Agreement is
terminated, the provisions of Sections 3, 4(d), 4(f), 4(g)
and 5 shall survive and continue in full force and effect.
SECTION 11. GOVERNING LAW. This Agreement shall
be governed by and construed in accordance with the internal
laws of the State of New York.
SECTION 12. COUNTERPARTS. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
SECTION 13. HEADINGS. The headings of the
sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part
of this Agreement.
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement between
the Company and you.
Very truly yours,
MIRAGE RESORTS, INCORPORATED
By:/s/ Daniel R. Lee
Daniel R. Lee
Chief Financial Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
MORGAN STANLEY & CO. INCORPORATED
By:/s/ Gail McDonnell
Name: Gail McDonnell
Title: Managing Director
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