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EXHIBIT 1
Execution Copy
MGM GRAND, INC.
(a Delaware corporation)
9 3/4% Senior Subordinated Notes Due 2007
PURCHASE AGREEMENT
May 22, 2000
Banc of America Securities LLC
Deutsche Bank Securities Inc.
as Representatives of the several Underwriters
231 South LaSalle Street
Chicago, Illinois 60697
Dear Sirs:
MGM Grand, Inc., a Delaware corporation (the "Company"), confirms its
agreement with Banc of America Securities LLC, Deutsche Bank Securities Inc. and
each of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Banc of America Securities
LLC and Deutsche Bank Securities Inc. are acting as representatives (in such
capacity, the "Representatives"), with respect to the sale by the Company and
the purchase by the Underwriters, acting severally and not jointly, of
$710,000,000 aggregate principal amount of the Company's 9 3/4% Senior
Subordinated Notes due 2007 (the "Notes").
At the Company's request, the Underwriters have agreed to reserve up to
$60,000,000 in aggregate principal amount of the Notes (the "Directed
Securities") for offer and sale, in accordance with the terms and conditions of
the Prospectus and the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD"), to certain officers, directors and
affiliates of the Company and Mirage (collectively, the "Participants"). It is
understood that any allocation of such Directed Securities among the
Participants will be made in accordance with timely directions received by the
Representatives from the Company (the "Directed Securities Program"). It is
further understood that any Directed Securities which are not orally confirmed
for purchase by any Participant by the end of the second business day following
the date this Agreement is executed will be offered by the Underwriters to the
public upon the terms and conditions set forth in the Prospectus.
The Notes are to be issued pursuant to an indenture (the "Indenture")
between the Company, certain subsidiaries of the Company (the "Company
Subsidiary Guarantors") who have guaranteed, pursuant to guarantees included in
the Indenture (the "Company Subsidiary Guarantees"), the interest and other
amounts payable on the Notes and The Bank of New York, as trustee (the
"Trustee").
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The Company intends to acquire Mirage Resorts, Incorporated, a Nevada
corporation ("Mirage"), pursuant to an Agreement and Plan of Merger dated as of
March 6, 2000 (the "Merger Agreement") by and among Mirage, the Company and a
wholly owned subsidiary of the Company. The net proceeds from the sale of the
Notes will be used to repay, upon consummation of the acquisition of Mirage (the
"Merger"), a portion of the outstanding borrowings under Mirage's existing
senior credit facility. Upon the consummation of the Merger, (i) a Company
Subsidiary Guarantor will be merged with and into Mirage pursuant to which
Mirage will become a wholly owned subsidiary of the Company and (ii) certain of
the Company Subsidiary Guarantors will be merged with and into certain of
Mirage's domestic subsidiaries (the "Mirage Subsidiary Mergers"). Immediately
following the consummation of the Merger, Mirage and certain of its domestic
subsidiaries that are required to guarantee the interest and other amounts
payable under the Notes pursuant to the Indenture (collectively, the "Mirage
Guarantors" and, together with the Company Subsidiary Guarantors, the
"Subsidiary Guarantors"), each will execute and deliver to the Trustee a
supplemental indenture (in form and substance reasonably satisfactory to the
Trustee) (the "Supplemental Indenture") pursuant to which such Mirage Guarantor
will assume the obligations of the Company Subsidiary Guarantor that was merged
with and into such Mirage Guarantor including the obligations under this
Agreement, the Indenture and the Company Subsidiary Guarantee executed by such
Company Subsidiary Guarantor (such assumed guarantees, the "Mirage Guarantees"
and, together with the Company Subsidiary Guarantees, the "Subsidiary
Guarantees").
The Company and the Company Subsidiary Guarantors have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(as amended to the date of this Agreement, the "Registration Statement") on Form
S-3 (No. 333-33200) including a prospectus relating to the registration of debt
and common stock of the Company, including the Notes and the Subsidiary
Guarantees pursuant to the Securities Act of 1933, as amended (the "1933 Act"),
and have filed with, mailed for filing to, or shall promptly hereafter file with
or transmit to the Commission a final prospectus supplement specifically
relating to the Notes and the Subsidiary Guarantees pursuant to Rule 424 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). The term "Basic Prospectus" means the prospectus (other than the
prospectus supplement specifically relating to the Notes and the Subsidiary
Guarantees) included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the final prospectus supplement specifically
relating to the Notes and the Subsidiary Guarantees. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Notes and the Subsidiary Guarantees, together with the Basic Prospectus.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, the Basic Prospectus, the Prospectus or the preliminary
prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement,
the Basic Prospectus, the Prospectus or the preliminary prospectus, as the case
may be; and all references in this Agreement to amendments or supplements to the
Registration Statement, the Basic Prospectus, the Prospectus or the preliminary
prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), or the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
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Regulations") which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Representatives deem advisable after this
Agreement has been executed and delivered and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 1. Representations and Warranties.
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The Company and the Company Subsidiary Guarantors jointly and
severally represent and warrant to each Underwriter as of the date hereof and as
of the date on which the Closing Time (as defined in Section 2 below) occurs
(such latter date, the "Closing Date") as follows:
(a) At the time the Registration Statement became effective
and at the Closing Time, the Registration Statement and the Prospectus complied
or will comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations"), and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at Closing Time, will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this section shall not apply to statements in
or omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus.
(b) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(c) The financial statements of the Company included in the
Registration Statement and the Prospectus present fairly the respective
financial positions of the Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules included in
the Registration Statement present fairly the information required to be stated
therein; and the Company's ratio of earnings to fixed charges (actual and, if
any, pro forma) included in the Prospectus have been calculated in compliance
with Item 503(d) of Regulation S-K of the Commission.
(d) The financial statements of Mirage included in the
Registration Statement and the Prospectus present fairly the respective
financial positions of Mirage and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the periods specified; except
as otherwise stated in the Registration Statement, said financial
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statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules included in
the Registration Statement present fairly the information required to be stated
therein; and Mirage's ratio of earnings to fixed charges (actual and, if any,
pro forma) included in the Prospectus have been calculated in compliance with
Item 503(d) of Regulation S-K of the Commission.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of (A) the Company and its subsidiaries considered as one enterprise
or (B) Mirage and its subsidiaries considered as one enterprise, in each case,
whether or not arising in the ordinary course of business, (ii) there have been
no transactions entered into by the Company or any of its subsidiaries or by
Mirage or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries or
Mirage and its subsidiaries, in each case, considered as one enterprise, and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by either the Company or Mirage on any class of its capital stock.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is (and after the
consummation of the Merger, will be) required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries (after giving effect to the consummation of
the Merger) considered as one enterprise.
(g) Mirage has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; and Mirage is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of Mirage and its subsidiaries considered as one enterprise.
(h) Except in connection with the operation of MGM Grand
Australia Pty, Ltd. and MGM South Africa Pty, Ltd., the Company does not own,
lease or license any asset or property or conduct any business outside the
United States of America other than in connection with foreign marketing offices
that are incidental to the Company's marketing activities. Each of the
subsidiaries of the Company listed on Schedule C hereto (collectively, the
"Company Subsidiaries" and, individually, each a "Company Subsidiary") has been
duly incorporated or formed and is validly existing as a corporation or limited
liability company in
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good standing under the laws of its state or other jurisdiction of incorporation
or formation. Each Company Subsidiary is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character or location of
its assets or property (owned, leased or licensed) or the nature of its business
makes such qualification necessary, except for such jurisdictions where the
failure to qualify would not have a material adverse effect on the assets or
properties, business, results of operations or financial condition of the
Company and its subsidiaries considered as one enterprise. Except through the
Company's interest in The MGM Grand Bally's Monorail LLC, the Company does not
control, directly or indirectly, any corporation, partnership, joint venture,
association or other business organization other than the Company Subsidiaries.
All of the issued and outstanding capital stock of each Company Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity (except
for Liens currently securing Senior Indebtedness (as defined below), which Liens
shall be released contemporaneously with the consummation of the Merger, and
Permitted Liens under the Indenture). The term "Senior Indebtedness" as used
herein shall have the meaning assigned to such term under "Description of the
Notes" in the Prospectus.
(i) Mirage does not own, lease or license any asset or
property or conduct any business outside the United States of America. Each of
the subsidiaries of Mirage listed on Schedule D hereto (collectively, the
"Mirage Subsidiaries" and, individually, each a "Mirage Subsidiary") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its state or other jurisdiction of incorporation. Each Mirage
Subsidiary is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its assets or property
(owned, leased or licensed) or the nature of its business makes such
qualification necessary, except for such jurisdictions where the failure to
qualify would not have a material adverse effect on the assets or properties,
business, results of operations or financial condition of Mirage and its
subsidiaries considered as one enterprise. Except through Mirage's interest in
the Victoria Partners, a Nevada general partnership and Marina District
Development Company, Mirage does not control, directly or indirectly, any
corporation, partnership, joint venture, association or other business
organization other than the Mirage Subsidiaries. All of the issued and
outstanding capital stock of each Mirage Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by Mirage,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (except for Permitted Liens
under the Indenture).
(j) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement or pursuant to
reservations, agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus); and the shares of issued and
outstanding common stock have been duly authorized and validly issued and are
fully paid and non-assessable.
(k) Each of the Company and Mirage, the Company Subsidiaries
and the Mirage Subsidiaries (collectively, the "Post-Merger Subsidiaries") has
all requisite corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or
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entity, including any and all licenses, permits and approvals required under any
foreign, federal, state or local law (including the Nevada Gaming Control Act,
the New Jersey Casino Control Act, the Michigan Gaming Control Act, the
Mississippi Gaming Control Act, the Gaming Control Act of 1933 of the Northern
Territory of Australia and the rules and regulations thereunder and any similar
laws and regulations governing any aspect of legalized gaming in any foreign,
federal, state or local jurisdiction (collectively, the "Gaming Laws")), to own,
lease and license its assets and properties and to conduct its business, but
only to the extent the same are currently conducted and operated as described in
the Registration Statement and the Prospectus, and, except to the extent
disclosed in the Registration Statement and the Prospectus with respect to
Gaming Laws, to consummate the Merger and the Mirage Subsidiary Mergers and to
issue the Notes and execute the Subsidiary Guarantees. Except to the extent
disclosed in the Registration Statement and the Prospectus with respect to
Gaming Laws, the Company and each of the Post-Merger Subsidiaries have fulfilled
and performed in all material respects all of their obligations with respect to
such authorizations, approvals, consents, orders, licenses, certificates and
permits, and neither the Company, nor any Post-Merger Subsidiary is in violation
of any term or provision of any such authorizations, approvals, consents,
orders, licenses, certificates or permits, nor has any event occurred which
allows, or after notice or lapse of time would allow, revocation or termination
thereof or which could result in any material impairment of the rights of the
holder thereof. Neither the Company nor any of the Post-Merger Subsidiaries has
any reason to believe that any governmental or regulatory body is considering
modifying, limiting, conditioning, suspending, revoking or not renewing any such
authorizations, approvals, consents, orders, licenses, certificates or permits
of the Company or any of the Post-Merger Subsidiaries or that such governmental
or regulatory bodies are investigating the Company or any of the Post-Merger
Subsidiaries or related parties (other than normal overseeing reviews by such
bodies incident to the gaming activities and casino management activities of the
Company and the Post-Merger Subsidiaries).
(l) Neither the Company nor any Post-Merger Subsidiary is in
violation of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any Post-Merger Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company or
any Post-Merger Subsidiary is subject except for any violation or default which,
individually or in the aggregate, would not have a material adverse effect on
the Company and the Post-Merger Subsidiaries considered as one enterprise; and
the execution, delivery and performance by the Company and each of the
Subsidiary Guarantors party to this Agreement, the Indenture, the Supplemental
Indenture, the Notes, the Subsidiary Guarantees and the Merger Agreement and the
consummation of the transactions contemplated herein and therein and compliance
by the Company and the Subsidiary Guarantors with their obligations hereunder
and thereunder have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Post-Merger Subsidiary pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any Post-Merger Subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Post-Merger Subsidiary is subject, nor will such action result in
any violation of the provisions of
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the charter or by-laws of the Company or any Post-Merger Subsidiary or any
applicable law, administrative regulation or administrative or court decree.
(m) No labor dispute with the employees of the Company or any
Post-Merger Subsidiary exists or, to the knowledge of the Company, is imminent;
and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or Mirage's principal suppliers, manufacturers or
contractors which could reasonably be expected to result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Company Subsidiaries
considered as one enterprise or Mirage and the Mirage Subsidiaries considered as
one enterprise, as applicable.
(n) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the Company or
any Post-Merger Subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed therein), or
which could reasonably be expected to result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of (i) the Company and the Company Subsidiaries considered as
one enterprise or (ii) Mirage and the Mirage Subsidiaries considered as one
enterprise, or which could reasonably be expected to materially and adversely
affect the properties or assets thereof or which could reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated by this Agreement or the Merger Agreement; all pending legal or
governmental proceedings to which the Company or any Post-Merger Subsidiary is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no contracts or
documents of the Company or any Post-Merger Subsidiary which are required to be
filed as exhibits to the Registration Statement or otherwise included by the
1933 Act or by the 1933 Act Regulations which have not been so filed or
included.
(o) The Company and the Post-Merger Subsidiaries own, have
incidental rights to or possess the right to use to the extent necessary in
their businesses, or can acquire on reasonable terms, the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names (collectively,
"proprietary rights") presently employed by them in connection with the business
now operated by them, and neither the Company nor any Post-Merger Subsidiary has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any proprietary rights, or of any
facts which would render any proprietary rights invalid or inadequate to protect
the interest of the Company or any Post-Merger Subsidiary therein, and which
failure, infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and the Company Subsidiaries considered as one enterprise or Mirage and
the Mirage Subsidiaries considered as one enterprise.
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(p) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Notes or the execution of the Subsidiary Guarantees or
the consummation of the Merger or the Mirage Subsidiary Mergers, other than as
required under Gaming Laws which have been obtained or as disclosed in the
Registration Statement and the Prospectus, and except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws or the
qualification of the Indenture under the 1939 Act.
(q) The Merger Agreement has been duly authorized, executed
and delivered by each of the parties thereto and constitutes a valid and binding
agreement of each party thereto, enforceable against them in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(r) This Agreement has been duly authorized by the Company and
the Company Subsidiary Guarantors, and at the Closing Time, will be duly
executed and delivered by the Company and the Company Subsidiary Guarantors, and
will constitute a valid and binding agreement of the Company and the Company
Subsidiary Guarantors, enforceable against them in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(s) The Indenture has been duly authorized by the Company and
the Company Subsidiary Guarantors and, at the Closing Time, will have been duly
qualified under the 1939 Act and duly executed and delivered by the Company and
the Company Subsidiary Guarantors and, at such time, will constitute valid and
binding agreements of the Company and the Company Subsidiary Guarantors,
enforceable against them in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(t) Immediately upon the consummation of the Merger and the
Mirage Subsidiary Mergers, this Agreement, the Indenture and, upon its execution
and delivery, the Supplemental Indenture, will constitute valid and binding
agreements of the respective Mirage Guarantors, enforceable against them in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
(u) The Notes have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment of the
purchase price therefor, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and will be in
the form contemplated by, and entitled to the benefits of, the Indenture.
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(v) The Company has all requisite corporate power and
authority to enter into this Agreement and the Indenture and to carry out the
provisions and conditions hereof and thereof.
(w) Each Company Subsidiary Guarantor has all requisite
corporate or limited liability company power and authority to enter into this
Agreement and the Indenture and to carry out the provisions and conditions
hereof and thereof.
(x) Each Mirage Guarantor has all requisite corporate or
limited liability company power and authority to enter into the Supplemental
Indenture and to assume the obligations of the respective Company Subsidiary
Guarantors under this Agreement and the Indenture (including the Subsidiary
Guarantees therein).
(y) Each party to the Merger Agreement and each agreement
providing for the Mirage Subsidiary Mergers (each a "Subsidiary Merger
Agreement" and, collectively, the "Subsidiary Merger Agreements") has all
requisite power and authority to enter into the Merger Agreement or such
Subsidiary Merger Agreement, as the case may be, and to carry out the provisions
and conditions thereof.
(z) The Notes and the Indenture (including the Subsidiary
Guarantees therein) will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(aa) The Notes are and will be (i) subordinated in right of
payment to all Senior Indebtedness of the Company that is outstanding on the
date hereof or that may be incurred hereafter and (ii) equal in right of payment
with all other indebtedness of the Company that is outstanding on the date
hereof or that may be incurred hereafter (except for future indebtedness of the
Company that may be subordinated to the Notes).
(bb) The Subsidiary Guarantee of each Subsidiary Guarantor is
and will be (i) subordinated in right of payment to all Senior Indebtedness of
the applicable Subsidiary Guarantor that is outstanding on the date hereof or
that may be incurred hereafter and (ii) equal in right of payment with all other
indebtedness of such Subsidiary Guarantor that is outstanding on the date hereof
or that may be incurred hereafter (except for future indebtedness of such
Subsidiary Guarantor that may be subordinated to the Notes).
(cc) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Time, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters: Closing.
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(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B hereto, the aggregate principal amount of
Notes set forth in Schedule A hereto opposite the name of such Underwriter, plus
any additional principal amount of Notes which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Pursuant to Rule 15c6-1(d) under the 1934 Act, settlement of this
offering will be six (6) business days following the execution of this Agreement
(the "Settlement Date"). Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the office of the Company, 3799 Las
Vegas Boulevard South, Las Vegas, Nevada, or at such other place as shall be
agreed upon by the Representatives and the Company, at 6:00 A.M. (Las Vegas
time) on Closing Date (unless postponed in accordance with the provisions of
Section 10) (such time and date of payment and delivery being herein called
"Closing Time").
(c) Payment shall be made to the Company by wire transfer to an
account or sub-account designated by the Company prior to the Closing Time,
against delivery to the Representatives for the respective accounts of the
Underwriters of the Notes to be purchased by them. Global certificates
representing the Notes shall be delivered to The Depository Trust Company
("DTC"). Interests in the Underwriters' Notes will be represented by book
entries on the records of DTC as the Representatives may request not less than
two full business days in advance of the Closing Date. The Company agrees to
have the global certificates, if any, available for inspection by the
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
SECTION 3. Covenants of the Company.
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The Company and each of the Company Subsidiary Guarantors, jointly and
severally, covenants with each Underwriter as follows:
(a) The Company will notify the Representatives immediately, and
confirm the notice in writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
(ii) of the receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
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(b) The Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such Prospectus to
which the Representatives or counsel for the Underwriters shall object.
(c) The Company will deliver to the Representatives as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein) as
the Representatives may reasonably request and will also deliver to the
Representatives a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(d) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Underwriters, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Company
will forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Notes for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the
Representatives may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified. In each jurisdiction in which the Notes have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 50 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(h) The Company will use the net proceeds received by it from the sale
of the Notes to repay, upon consummation of the Merger, a portion of the
outstanding borrowings under Mirage's existing senior credit facility.
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(j) During a period of 180 days from the Closing Date, the Company
will not, without the Representatives' prior written consent, directly or
indirectly, issue, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Notes or securities similar to the Notes, or any
securities convertible into or exchangeable or exercisable for any Notes or any
such similar securities, except for Notes sold to the Underwriters pursuant to
this Agreement.
(k) The Company shall cause each Participant that purchases Directed
Securities from the Underwriters and who is subject to any restriction under
sections (b)(2) through (9) of Rule 2110 of the NASD Rules of Conduct, to
furnish to the Representatives, prior to the Closing Time, a letter or letters,
in form and substance satisfactory to the Representatives, pursuant to which
each such Participant shall agree not to sell, transfer, assign, pledge or
hypothecate any Directed Securities for a period of three months following the
Closing Time.
(l) The Company shall cause each of the Mirage Guarantors, upon the
consummation of the Merger, to execute and deliver the Supplemental Indenture.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery of this Agreement and the Indenture, (iii) the preparation,
issuance and delivery of the certificates for the Notes to the Underwriters,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Notes under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Blue Sky Survey, if any, (vi) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of a Blue Sky Survey, (viii)
the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Notes; (ix) any
fees payable in connection with the rating of the Notes; and (x) the fee of the
National Association of Securities Dealers, Inc. If this Agreement is terminated
by the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the
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Company and the Company Subsidiary Guarantors herein contained, to the
performance by the Company and the Company Subsidiary Guarantors of their
obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, and covering the matters described in Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of Peter
Walsh, General Counsel of Mirage, in form and substance satisfactory to
counsel for the Underwriters, and covering the matters described in Exhibit
B hereto.
(3) The favorable opinion, dated as of the Closing Time, of
Lionel, Sawyer & Collins, Nevada counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, and covering the
matters described in Exhibit C hereto.
(4) The favorable opinion, dated as of the Closing Time, of
Sterns & Weinroth, New Jersey Counsel for the Company in form and substance
satisfactory to counsel for the Underwriters, and covering the matters
described in Exhibit D hereto.
(5) The favorable opinion of Dickinson Wright PLLC, Michigan
counsel to the Company, in form and substance satisfactory to counsel for
the Underwriters, and covering the matters described in Exhibit E hereto.
(6) The favorable opinion of Eaton and Cottrell, Mississippi
counsel to the Company, in form and substance satisfactory to counsel for
the Underwriters, and covering the matters described in Exhibit F hereto.
(7) The favorable opinion, dated as of Closing Time, of Gibson,
Dunn & Crutcher, counsel for the Underwriters, and covering the matters
described in Exhibit G hereto.
In giving their opinions required by subsections (b)(1) and (b)(7),
respectively, of this Section, Christensen, Miller, Fink, Jacobs, Glaser, Weil &
Shapiro, LLP and Gibson, Dunn & Crutcher shall each additionally state that
nothing has come to their attention that would lead them to believe that the
Registration Statement (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference therein and
that part of the Registration Statement which constitutes the Trustee's
Statement of Eligibility and Qualification under the 1939 Act (Form T-1), as to
which counsel need make no statement), at the time it became effective or at the
Closing Time, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
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the statements therein not misleading or that the Prospectus (except for
financial statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which counsel need make no
statement), at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At Closing Time there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries or the Company and the
Post-Merger Subsidiaries, in each case, considered as one enterprise, whether or
not arising in the ordinary course of business, and the Representatives shall
have received a certificate of the president or a vice president of the Company
and of the secretary of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of Closing Time, (iii)
all authorizations, approval or consents under the Gaming Laws necessary in
connection with the offering, issuance and sale of the Notes, the execution of
the Subsidiary Guarantees, the Merger and the Mirage Subsidiary Mergers have
been obtained, (iv) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (v) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Arthur Andersen LLP, independent public
accountants a letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to (A) the Company and its subsidiaries and (B) Mirage and its
subsidiaries, in each case, within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the financial statements and
supporting schedules included in the Registration Statement and the Prospectus
and covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letter, nothing has come to their attention which causes them to believe that
(A) the unaudited financial statements and supporting schedules of the Company
and its subsidiaries and Mirage and its subsidiaries included in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations or are not presented in conformity with generally
accepted accounting principles applied on a basis consistent with that of the
audited financial statements included in the Registration Statement, or (B) the
unaudited amounts of revenues, operating income, income from operations and net
income set forth under "Selected Consolidated Financial and Other Date" in the
Prospectus were not determined on a basis consistent with that used in
determining the corresponding amounts in the audited financial statements
included in the Registration Statement and the Prospectus; and (iv) in addition
to the examination referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit,
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with respect to certain amounts, percentages and financial information which are
included in the Registration Statement and Prospectus and which are specified by
the Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries and Mirage and its Subsidiaries, as
applicable, identified in such letter.
(e) At Closing Time the Representatives shall have received from
Arthur Andersen LLP, independent public accountants a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than five days prior to Closing Time.
(f) At Closing Time, the Notes shall be rated at least Ba2 by Moody's
Investors Service, Inc. and BB+ by Standard & Poor's Ratings Group, and the
Company shall have delivered to the Representatives (i) a letter, dated as of or
prior to the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Notes have such
ratings; and (ii) a certificate from the Secretary of the Company certifying
that to the knowledge of the Company, (A) since the date of such letter
described in clause (i) above, there has not occurred a downgrading in the
rating assigned to the Notes or any of the Company's other debt securities by
any nationally recognized securities rating agency, and (B) no such securities
rating agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Notes or any of
the Company's other debt securities.
(g) The board of directors of Mirage (as heretofore constituted) shall
have approved the election of new directors of Mirage nominated by the Company
and shall have approved the transactions contemplated by the Merger Agreement
(in a manner which results in such transactions not constituting a "Change of
Control" under the indentures to the Mirage Notes (as defined under "Description
of the Notes-Certain Definitions" in the Prospectus)).
(h) The Merger and each of the Mirage Subsidiary Mergers, as
contemplated under the Merger Agreement and the Subsidiary Merger Agreements,
respectively, shall be in a position to close promptly following the Closing
Time, in accordance with the relevant agreements and all applicable laws
(including Gaming Laws).
(i) The Mirage Guarantors shall be in a position to execute the
Supplemental Indenture immediately following the consummation of the Merger
Agreement and the Subsidiary Merger Agreements.
(j) The Company shall be in a position to satisfy all conditions
precedent and to borrow under the Credit Facilities (as defined under
"Description of the Notes-Certain Definitions" in the Prospectus), substantially
concurrently with the closing of the Merger.
(k) The trustees for the holders of the Senior Notes (as defined under
"Description of the Notes-Certain Definitions" in the Prospectus) issued by the
Company and the agent for the lenders under the Company's existing senior credit
facilities shall have released, or taken all action necessary to release
concurrently with the closing of the Merger, all liens on the
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assets of the Company and its subsidiaries securing such Senior Notes and
existing senior credit facilities (or securing any guarantee thereof) under the
now existing terms of the related indentures and existing senior credit
facilities, without any amendment or consent from the holders thereof or the
lenders thereunder, pursuant to arrangements acceptable to the Representatives.
(l) At Closing Time, the Senior Notes (other than the Mirage Notes (as
defined under "Description of the Notes-Certain Definitions" in the Prospectus))
shall be rated at least Baa3 by Moody's Investors Service, Inc. and BBB- by
Standard & Poor's Ratings Group, and the Company shall have delivered to the
Representatives (i) a letter, dated as of or prior to the Closing Time, from
each such rating agency, or other evidence satisfactory to the Representatives,
confirming that such Senior Notes have such ratings; and (ii) a certificate from
the Secretary of the Company certifying that to the knowledge of the Company,
(A) since the date of such letter described in clause (i) above, there has not
occurred a downgrading in the rating assigned to such Senior Notes, and (B) no
such securities rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of such
Senior Notes.
(m) The Representatives shall have received from each Participant that
is subject to any restriction under sections (b)(2) through (9) of Rule 2110 of
the NASD Rules of Conduct, a letter, in form and substance satisfactory to the
Representatives, pursuant to which such Participant shall have agreed not to
sell, transfer, assign, pledge or hypothecate any Directed Securities for a
period of three months following the Closing Time.
(n) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Representatives and counsel for the
Underwriters. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
---------------
(a) The Company and the Company Subsidiary Guarantors, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act
and the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
16
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untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written consent
of the Company;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent arising out of (A) the failure of
any Participant to pay for any accept delivery of the Directed Securities sold
pursuant to the Directed Securities Program which, immediately following the
execution hereof, were subject to a properly confirmed agreement to purchase or
(B) the Directed Securities Program; and
(iv) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Banc of America Securities LLC), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the 1933 Act and the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which
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indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for the reasonable fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls an Underwriter within the
meaning of the 1933 Act and the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of the 1933 Act and the 1934 Act
shall have the same rights to contribution as the Company.
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company and the Company Subsidiary
Guarantors submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Notes to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Post-Merger Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Notes or to
enforce contracts for the sale of the Notes, or (iii) if trading in the common
stock of the Company has been suspended by the Commission, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal, New York or Nevada
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 6 and 7 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time to purchase the Notes which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Notes, each of the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Notes,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter. No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in
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respect of its default. In the event of any such default which does not result
in a termination of this Agreement, either the Representatives or the Company
shall have the right to postpone Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Banc of America
Securities LLC, 231 South LaSalle Street, Chicago, Illinois 60697, attention of
Bruce R. Thompson, and Deutsche Bank Securities Inc., 31 West 52/nd/ Street, New
York, New York 10019, attention Paul M. Whyte, and notices to the Company shall
be directed to it at 3799 Las Vegas Boulevard South, Las Vegas, Nevada 89109,
attention of Scott Langsner, Secretary, Treasurer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
-------
be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons,
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by and
----------------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
SECTION 14. Agreement Regarding Tracinda. The Underwriters hereby agree
----------------------------
that in the event (i) there is any breach or default or alleged breach or
default by the Company under this Agreement or (ii) the Underwriters have or may
have any claim arising from or relating to the terms hereof, the Underwriters
shall not commence any lawsuit or otherwise seek to impose any liability
whatsoever against Kirk Kerkorian or Tracinda Corporation (collectively,
"Tracinda"), unless Tracinda shall have commenced a lawsuit or otherwise
initiated any claim against the Underwriters arising from or relating to this
Agreement (a "Tracinda Action"). The Underwriters hereby further agree that
unless a Tracinda Action has been commenced: (i) Tracinda shall not have any
liability whatsoever with respect to this Agreement or any matters relating to
or arising from this Agreement, including any alleged breach of or default under
this Agreement by the Company; and (ii) the Underwriters shall not assert or
permit any party claiming through it to assert a claim or impose any liability
against Tracinda as to any matter or thing arising out of or relating to this
Agreement or any alleged breach or default under this Agreement by the Company.
In addition, the Underwriters agree that Tracinda is not a party to this letter
agreement.
20
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
MGM GRAND, INC.
By: /s/ Scott Langsner
_________________________________
Name: Scott Langsner
Title: Secretary/Treasurer
21
<PAGE>
Joined in and agreed to and accepted by the
following Company Subsidiary Guarantors as of the date first
above written:
MGM Grand Hotel, Inc., a Nevada corporation
MGM Grand Movieworld, Inc., a Nevada corporation
Grand Laundry, Inc., a Nevada corporation
MGM Grand Advertising, Inc., a Nevada corporation
MGM Entertainment, Inc., a Nevada corporation
MGM Grand Monorail, Inc., a Nevada corporation
MGM Dist., Inc., a Nevada corporation
Destron, Inc., a Nevada corporation
Destron Marketing, Inc., a Nevada corporation
MGM Grand Merchandising, Inc., a Nevada corporation
MGM Grand Atlantic City, Inc., a New Jersey corporation
MGM Grand Development, Inc., a Nevada corporation
MGM Grand Detroit, Inc., a Delaware corporation
New PRMA Las Vegas, Inc., a Nevada corporation
New York-New York Hotel and Casino, LLC,
a Nevada limited liability company
Metropolitan Marketing, LLC, a Nevada limited liability
company
The Primadonna Company, LLC, a Nevada limited liability
company
PRMA, LLC, a Nevada limited liability company
PRMA Land Development Company, a Nevada corporation
PRMA-MS, Inc., a Nevada corporation
MGMGMR Acquisition, Inc., a Nevada corporation
By: /s/ Scott Langsner
---------------------------------
Name: Scott Langsner
Title: Secretary/Treasurer
22
<PAGE>
MGM Acquisition Co. #1, a Nevada corporation
MGM Acquisition Co. #2, a Nevada corporation
MGM Acquisition Co. #3, a Nevada corporation
MGM Acquisition Co. #4, a Nevada corporation
MGM Acquisition Co. #5, a Nevada corporation
MGM Acquisition Co. #6, a Nevada corporation
MGM Acquisition Co. #7, a Nevada corporation
MGM Acquisition Co. #8, a Nevada corporation
MGM Acquisition Co. #9, a Nevada corporation
MGM Acquisition Co. #10, a Nevada corporation
MGM Acquisition Co. #11, a Nevada corporation
MGM Acquisition Co. #12, a Nevada corporation
MGM Acquisition Co. #13, a Nevada corporation
MGM Acquisition Co. #14, a Nevada corporation
MGM Acquisition Co. #15, a Nevada corporation
MGM Acquisition Co. #16, a Nevada corporation
MGM Acquisition Co. #17, a Nevada corporation
MGM Acquisition Co. #18, a Nevada corporation
MGM Acquisition Co. #19, a Nevada corporation
MGM Acquisition Co. #20, a Nevada corporation
MGM Acquisition Co. #21, a Nevada corporation
MGM Acquisition Co. #22, a Nevada corporation
MGM Acquisition Co. #23, a Nevada corporation
MGM Acquisition Co. #24, a Nevada corporation
MGM Acquisition Co. #25, a Nevada corporation
MGM Acquisition Co. #26, a Nevada corporation
MGM Acquisition Co. #27, a Nevada corporation
MGM Acquisition Co. #28, a Nevada corporation
MGM Acquisition Co. #29, a Nevada corporation
MGM Acquisition Co. #30, a Nevada corporation
MGM Acquisition Co. #31, a Nevada corporation
MGM Acquisition Co. #32, a Nevada corporation
MGM Acquisition Co. #33, a Nevada corporation
MGM Acquisition Co. #34, a Nevada corporation
MGM Acquisition Co. #35, a Nevada corporation
MGM Acquisition Co. #36, a Nevada corporation
MGM Acquisition Co. #37, a Nevada corporation
MGM Acquisition Co. #38, a Nevada corporation
MGM Acquisition Co. #39, a Nevada corporation
MGM Acquisition Co. #40, a Nevada corporation
By: /s/ Scott Langsner
---------------------------------------
Name: Scott Langsner
Title: President, Secretary & Treasurer
23
<PAGE>
MGM Acquisition Co. #41, a Nevada corporation
MGM Acquisition Co. #42, a Nevada corporation
MGM Acquisition Co. #43, a Nevada corporation
MGM Acquisition Co. #44, a Nevada corporation
MGM Acquisition Co. #45, a Nevada corporation
MGM Acquisition Co. #46, a Nevada corporation
MGM Acquisition Co. #47, a Nevada corporation
MGM Acquisition Co. #48, a Nevada corporation
MGM Acquisition Co. #49, a Nevada corporation
MGM Acquisition Co. #50, a Nevada corporation
MGM Acquisition Co. #51, a Nevada corporation
MGM Acquisition Co. #52, a Nevada corporation
MGM Acquisition Co. #53, a Nevada corporation
MGM Acquisition Co. #54, a Nevada corporation
MGM Acquisition Co. #55, a Nevada corporation
MGM Acquisition Co. #56, a Nevada corporation
By: /s/ Scott Langsner
---------------------------------
Name: Scott Langsner
Title: President, Secretary & Treasurer
24
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Bruce R. Thompson
------------------------
Name: Bruce R. Thompson
Title: Managing Director
For itself and as a Representative of the other Underwriters
named in Schedule A hereto.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Carl A. Mayer, III
----------------------
Name: Carl A. Mayer, III
Title: Managing Director
For itself and as a Representative of the other Underwriters
named in Schedule A hereto.
25
<PAGE>
Schedule A
----------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
Name of Underwriter Principal Amount of Notes
--------------------------------------------------------------------------------
<S> <C>
Banc of America Securities LLC $ 300,000,000
--------------------------------------------------------------------------------
Deutsche Bank Securities Inc. 200,000,000
--------------------------------------------------------------------------------
Morgan Stanley & Co. Incorporated 30,000,000
--------------------------------------------------------------------------------
Banc One Capital Markets, Inc. 20,000,000
--------------------------------------------------------------------------------
Bear, Stearns & Co. Inc. 20,000,000
--------------------------------------------------------------------------------
CIBC World Markets Corp. 20,000,000
--------------------------------------------------------------------------------
Commerzbank Capital Markets Corp. 20,000,000
--------------------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith 20,000,000
Incorporated
--------------------------------------------------------------------------------
Salomon Smith Barney Inc. 20,000,000
--------------------------------------------------------------------------------
Scotia Capital Markets (USA) Inc. 20,000,000
--------------------------------------------------------------------------------
SG Cowen Securities Corporation 20,000,000
--------------------------------------------------------------------------------
Wasserstein Perella Securities, Inc. 20,000,000
--------------------------------------------------------------------------------
</TABLE>
26
<PAGE>
Schedule B
----------
MGM Grand, Inc.
$710,000,000 OF 9 3/4% SENIOR SUBORDINATED NOTES DUE 2007
1. The initial public offering price of the Notes shall be 98.763% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Notes shall be
97.153% of the principal amount thereof./1/
3. The interest rate on the Notes shall be 9 3/4% per annum.
_______________
/1/ This purchase price is adjusted to reflect the agreement of the
Underwriters and the Company that the Underwriters will pay the full public
offering price for any Directed Securities ultimately purchased by the
Participants and a purchase price of 97.013% of the principal amount
thereof for the other Notes.
27
<PAGE>
Schedule C
----------
Company Subsidiaries
MGM Grand Hotel, Inc., a Nevada corporation
MGM Grand Movieworld, Inc., a Nevada corporation
Grand Laundry, Inc., a Nevada corporation
MGM Grand Advertising, Inc., a Nevada corporation
MGM Entertainment, Inc., a Nevada corporation
MGM Grand Monorail, Inc., a Nevada corporation
MGM Dist., Inc., a Nevada corporation
Destron, Inc., a Nevada corporation
Destron Marketing, Inc., a Nevada corporation
MGM Grand Merchandising, Inc., a Nevada corporation
MGM Grand Diamond, Inc., a Nevada corporation
MGM Grand Australia Pty Ltd., an Australian corporation
Diamond Darwin Pty Ltd., an Australian corporation
Diamond Leisure Pty Ltd., an Australian corporation
Territory Property Trust, an Australian corporation
Fernbank Pty Ltd., an Australian corporation
MGM Grand Atlantic City, Inc., a New Jersey corporation
MGM Grand Development, Inc., a Nevada corporation
MGM Grand South Africa, Inc., a Nevada corporation
MGM Grand South Africa Pty Ltd., a South African corporation
MGM Grand Detroit, Inc., a Delaware corporation
MGM Grand Detroit, LLC, a Delaware limited liability company
MGM Grand Detroit II, LLC, a Delaware limited liability company
1533 North Woodward, Inc., a Michigan corporation
Jefferson Holdings, LLC, a Michigan limited liability company
Business Development Fund, LLC, a Delaware limited liability company
New PRMA Las Vegas, Inc., a Nevada corporation
New York-New York Hotel and Casino, LLC, a Nevada limited liability company
Metropolitan Marketing, LLC, a Nevada limited liability company
The Primadonna Company, LLC, a Nevada limited liability company
PRMA, LLC, a Nevada limited liability company
PRMA Land Development Company, a Nevada corporation
PRMA-MS, Inc., a Mississippi corporation
MGMGMR Acquisition, Inc., a Nevada corporation
MGM Acquisition Co. #1, a Nevada corporation
MGM Acquisition Co. #2, a Nevada corporation
MGM Acquisition Co. #3, a Nevada corporation
MGM Acquisition Co. #4, a Nevada corporation
MGM Acquisition Co. #5, a Nevada corporation
MGM Acquisition Co. #6, a Nevada corporation
MGM Acquisition Co. #7, a Nevada corporation
28
<PAGE>
MGM Acquisition Co. #8, a Nevada corporation
MGM Acquisition Co. #9, a Nevada corporation
MGM Acquisition Co. #10, a Nevada corporation
MGM Acquisition Co. #11, a Nevada corporation
MGM Acquisition Co. #12, a Nevada corporation
MGM Acquisition Co. #13, a Nevada corporation
MGM Acquisition Co. #14, a Nevada corporation
MGM Acquisition Co. #15, a Nevada corporation
MGM Acquisition Co. #16, a Nevada corporation
MGM Acquisition Co. #17, a Nevada corporation
MGM Acquisition Co. #18, a Nevada corporation
MGM Acquisition Co. #19, a Nevada corporation
MGM Acquisition Co. #20, a Nevada corporation
MGM Acquisition Co. #21, a Nevada corporation
MGM Acquisition Co. #22, a Nevada corporation
MGM Acquisition Co. #23, a Nevada corporation
MGM Acquisition Co. #24, a Nevada corporation
MGM Acquisition Co. #25, a Nevada corporation
MGM Acquisition Co. #26, a Nevada corporation
MGM Acquisition Co. #27, a Nevada corporation
MGM Acquisition Co. #28, a Nevada corporation
MGM Acquisition Co. #29, a Nevada corporation
MGM Acquisition Co. #30, a Nevada corporation
MGM Acquisition Co. #31, a Nevada corporation
MGM Acquisition Co. #32, a Nevada corporation
MGM Acquisition Co. #33, a Nevada corporation
MGM Acquisition Co. #34, a Nevada corporation
MGM Acquisition Co. #35, a Nevada corporation
MGM Acquisition Co. #36, a Nevada corporation
MGM Acquisition Co. #37, a Nevada corporation
MGM Acquisition Co. #38, a Nevada corporation
MGM Acquisition Co. #39, a Nevada corporation
MGM Acquisition Co. #40, a Nevada corporation
MGM Acquisition Co. #41, a Nevada corporation
MGM Acquisition Co. #42, a Nevada corporation
MGM Acquisition Co. #43, a Nevada corporation
MGM Acquisition Co. #44, a Nevada corporation
MGM Acquisition Co. #45, a Nevada corporation
MGM Acquisition Co. #46, a Nevada corporation
MGM Acquisition Co. #47, a Nevada corporation
MGM Acquisition Co. #48, a Nevada corporation
MGM Acquisition Co. #49, a Nevada corporation
MGM Acquisition Co. #50, a Nevada corporation
MGM Acquisition Co. #51, a Nevada corporation
MGM Acquisition Co. #52, a Nevada corporation
MGM Acquisition Co. #53, a Nevada corporation
29
<PAGE>
MGM Acquisition Co. #54, a Nevada corporation
MGM Acquisition Co. #55, a Nevada corporation
MGM Acquisition Co. #56, a Nevada corporation
30
<PAGE>
Schedule D
----------
Mirage Subsidiaries
AC Holding Corp., a Nevada corporation
AC Holding Corp. II, a Nevada corporation
The April Cook Companies, a Nevada corporation
Atlandia Design and Furnishings, Inc., a Nevada corporation
Beau Rivage Distribution Corp., a Mississippi corporation
Beau Rivage Marketing Corp., a Nevada corporation
Beau Rivage Resorts, Inc., a Mississippi corporation
Bellagio, a Nevada corporation
Boardwalk Casino, Inc., a Nevada corporation
Bungalow, Inc., a Mississippi corporation
Country Star Las Vegas, LLC, a Nevada limited liability company
DAP Corporation, a Pennsylvania corporation
EGARIM, Inc., an Alabama corporation
GN Marketing Corp., New York corporation
GNL, Corp., a Nevada corporation
GNLV, Corp., a Nevada corporation
GNLV Marketing Corp., a Nevada corporation
GNS Finance Corp., a Nevada corporation
Golden Nugget (ASIA) Ltd., a Nevada corporation
Golden Nugget Aviation Corp., a Nevada corporation
Golden Nugget Experience Corp., a Nevada corporation
Golden Nugget Finance Corp., a Nevada corporation
Golden Nugget Lawrenceburg, Inc., an Indiana corporation
Golden Nugget Marketing Corp., a California corporation
Golden Nugget Marketing Corp., a Texas corporation
Golden Nugget Marketing Corp. - Illinois, a Nevada corporation
Golden Nugget Manufacturing Corp., a Nevada corporation
LV Concrete Corp., a Nevada corporation
MAC, Corp., a New Jersey corporation
MCD Gaming Corp., a Michigan corporation
MH, Inc., a Nevada corporation
M.I.R. Travel, a Nevada corporation
MRGS Corp., a Nevada corporation
The Mirage Casino-Hotel, a Nevada corporation
Mirage Entertainment and Sports, Incorporated, a Nevada corporation
The Mirage-Golden Nugget Hong Kong, Ltd., a Nevada corporation
The Mirage-Golden Nugget Taiwan, Ltd., a Nevada corporation
Mirage Hawaii Marketing Corp., a Nevada corporation
Mirage International, a Nevada corporation
Mirage Laundry Services Corp., a Nevada corporation
Mirage Leasing Corp., a Nevada corporation
Mirage Resorts of Maryland, Inc., a Maryland corporation
Mirage Resorts Retail, a Nevada corporation
<PAGE>
Mirage Resorts Risk Management, a Nevada corporation
Mirage Resorts Vacations, LLC, a Nevada limited liability company
Mirage South China, Inc., a Nevada corporation
Restaurant Ventures of Nevada, Inc., a Nevada corporation
SHCR Corp., a Texas corporation
See Saw Sign Corp., a Nevada corporation
Treasure Island Corp., a Nevada corporation
Treasure Island Productions, Inc., a Nevada corporation
TYOH Advertising, Inc., a Nevada corporation
VidiAd, a Nevada corporation
32
<PAGE>
Exhibit A
---------
Opinion matters covered by
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP,
counsel to the Company
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has all requisite corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus, but only to the
extent the same are currently conducted and operated, and to enter into and
perform its obligations under this Agreement, the Indenture and the Notes.
(iii) To the best of their knowledge and information, the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required
(after giving effect to the Merger), except where failure to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and the Post-Merger Subsidiaries considered as one
enterprise.
(iv) Each Post-Merger Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties, to conduct its business
as described in the Registration Statement and Prospectus but only to the
extent the same are currently conducted and operated and to enter into and
perform its obligations under this Agreement, the Indenture and the
Subsidiary Guarantees and, to the best of their knowledge and information,
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required,
except where failure to be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and the Post-Merger
Subsidiaries considered as one enterprise. Assuming that the Company
acquired (or, with respect to Mirage and the Mirage Subsidiaries, acquires)
such shares in good faith and without knowledge of any adverse claim, to
the best of such counsel's knowledge, all of the issued and outstanding
capital stock of each Post-Merger Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is (or, with respect
to Mirage and the Mirage Subsidiaries, following the Merger will be) owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
(except for Permitted Liens under the Indenture).
(v) This Agreement has each been duly authorized, executed and
delivered by the Company and the Company Subsidiary Guarantors.
<PAGE>
(vi) The Registration Statement is effective under the 1933 Act and,
to the best of their knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission.
(vii) At the time the Registration Statement became effective and at
the Closing Time, the Registration Statement (other than the financial
statements and supporting schedules and other financial and statistical
data included therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(viii) To the best of their knowledge and information, there are no
legal or governmental proceedings pending or threatened which are required
to be disclosed in the Registration Statement, other than those disclosed
therein.
(ix) The information in the Prospectus under "Description of the
Notes," "Description of Our Long Term Debt" and "Description of Debt
Securities," to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects.
(x) To the best of their knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, the descriptions thereof or references thereto are correct in all
material respects, and no default exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to, filed or incorporated by
reference, where the consequences of such default would have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise.
(xi) No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the
offering, issuance or sale of the Notes and the Subsidiary Guarantees
contemplated herein and in the Prospectus or in connection with the Merger
or the Mirage Subsidiary Mergers, except (a) as disclosed in the
Registration Statement or (b) such as may be required under the Gaming Laws
which have been obtained or the 1933 Act or the 1933 Act Regulations or
state securities law or the qualification of the Indenture under the 1939
Act; and, to the best of their knowledge and information, the execution,
delivery and performance of this Agreement, the Indenture, the Supplemental
Indenture, the Notes, the Subsidiary Guarantees, the Merger Agreement and
the Subsidiary Merger Agreements and the consummation of the transactions
contemplated herein and therein and compliance by the Company and the
Subsidiary Guarantors with its or their obligations hereunder and
thereunder will not: (1) conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the
34
<PAGE>
Company or any of the Post-Merger Subsidiary pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any Post-Merger Subsidiary is a party or by which it
or any of them may be bound, or to which any of the property or assets of
the Company or any Post-Merger Subsidiary is subject which would result in
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Post-Merger Subsidiaries considered as one enterprise; or (2) result in any
violation of the provisions of (A) any applicable law, administrative
regulation or administrative or court decree which would result in a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Post-Merger Subsidiaries considered as one enterprise or (B) the charter or
by-laws of the Company or any Post-Merger Subsidiary.
(xii) To the best of their knowledge and information, there are no
persons with registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company under the 1933 Act.
(xiii) The Indenture, the Notes and the Merger Agreement have been
duly authorized by the Company and, assuming the due authorization,
execution and delivery of the Indenture by the Trustee, the Indenture and
the Merger Agreement constitute, and the Notes (when executed by the
Company and authenticated by the Trustee in the manner provided in the
Indenture and delivered against payment therefor) will constitute, the
valid and binding agreements of the Company enforceable against the Company
in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar law relating to or affecting creditors' rights generally or by
general equitable principles, and except that certain provisions of the
Indenture and the Notes may not be enforceable in whole or in part under
the laws of the State of Nevada, but the inclusion of such provisions does
not affect the validity of such documents and such documents contain
adequate provisions for enforcing payment of the monetary obligations of
the Company under the Notes and for the practical realization of the rights
and benefits afforded thereby, provided such enforcement is conducted in
accordance with the procedures established by the laws of the State of
Nevada.
(xiv) The Indenture, the Subsidiary Guarantees contained within the
Indenture and the Subsidiary Merger Agreements have been duly authorized,
executed and delivered by the Company Subsidiary Guarantors and (assuming
the due authorization, execution and delivery of the Indenture by the
Trustee) constitute valid and binding agreements of the Company Subsidiary
Guarantors enforceable against the Company Subsidiary Guarantors in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar law relating to or affecting creditors' rights generally or by
general equitable principles, and except that certain provisions of the
above-referenced documents may not be enforceable in whole or in part under
the laws of the State of Nevada, but the inclusion of such provisions does
not affect the validity of such documents and such documents contain
adequate provisions for enforcing payment of the monetary obligations of
the Company under the Notes and for the practical realization of the rights
and benefits
35
<PAGE>
afforded thereby, provided such enforcement is conducted in accordance with
the procedures established by the laws of the State of Nevada.
(xv) The Indenture, the Subsidiary Guarantees contained within the
Indenture, the Subsidiary Merger Agreements and the Supplemental Indenture
have been duly authorized by the Mirage Guarantors, the Indenture and the
Subsidiary Guarantees constitute (assuming the due authorization, execution
and delivery of the Indenture by the Trustee), and, upon the execution and
delivery of the Subsidiary Merger Agreements and the Supplemental Indenture
upon the consummation of the Merger, such Subsidiary Merger Agreements and
the Supplemental Indenture will constitute, valid and binding agreements of
the Mirage Guarantors enforceable against them in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar law relating to or
affecting creditors' rights generally or by general equitable principles,
and except that certain provisions of the above-referenced documents may
not be enforceable in whole or in part under the laws of the State of
Nevada, but the inclusion of such provisions does not affect the validity
of such documents and such documents contain adequate provisions for
enforcing payment of the monetary obligations of the Company under the
Notes and for the practical realization of the rights and benefits afforded
thereby, provided such enforcement is conducted in accordance with the
procedures established by the laws of the State of Nevada.
(xvi) The Notes and the Subsidiary Guarantees are in the form
contemplated by the Indenture.
(xvii) The Indenture has been duly qualified under the 1939 Act.
(xviii) The Notes, the Subsidiary Guarantees and the Indenture
conform in all material respects to the descriptions thereof contained in
the Prospectus.
(xix) Each document filed pursuant to the 1934 Act (other than the
financial statements and supporting schedules included therein, as to which
no opinion need be rendered) and incorporated or deemed to be incorporated
by reference in the Prospectus complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act Regulations.
In giving its opinions required by subsection (b)(1) of Section 5,
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP shall be
entitled to rely on the opinions of Peter Walsh and Lionel, Sawyer and
Collins with respect to Nevada law matters, Eaton and Cottrell with to
Mississippi law matters and Sterns & Weinroth with respect to New Jersey
law matters.
36
<PAGE>
Exhibit B
---------
Opinion matters covered by Peter Walsh,
General Counsel of Mirage
(i) Each of Mirage and the Mirage Subsidiaries listed on Schedule D
hereto (other than Beau Rivage Distribution Corp., Beau Rivage Resorts,
Inc. and MAC, Corp.)(the "Mirage Subsidiaries", and together with Mirage,
the "Mirage Entities") has been duly incorporated or formed and is validly
existing as a corporation or limited liability company in good standing
under the laws of the jurisdiction of its incorporation or formation. All
of the issued and outstanding shares of capital stock of each of Mirage
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are directly owned of record by Mirage or one of the
other Mirage Subsidiaries. All of the issued and outstanding shares of
capital stock of Mirage have been duly authorized and validly issued, are
fully paid and nonassessable and will upon the consummation of the Merger
be directly owned of record by the Company. Assuming that the Company
acquires such shares without knowledge of any adverse claim, to the best of
such counsel's knowledge, the Company or one of its subsidiaries will hold
such shares free and clear of any security interest, lien, encumbrance or
other adverse claim. All of the issued and outstanding shares of capital
stock of each of the Mirage Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are (and immediately
following the consummation of the Merger will be) directly owned of record
by Mirage or one of the other Mirage Subsidiaries. Assuming that Mirage
acquired such shares without knowledge of any adverse claim, to the best of
such counsel's knowledge, Mirage holds (and immediately following the
consummation of the Merger, the Company or one of its subsidiaries will
hold) such shares free and clear of any security interest, lien,
encumbrance or other adverse claim. To such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding subscription, option, warrant or other right calling for the
issuance of any share of stock of any of the Mirage Entities or any
security convertible into, exercisable for, or exchangeable for stock of
any Mirage Entity.
(ii) Each of the Mirage Entities has all requisite corporate power
and authority to own, lease and license their assets and properties, to
conduct their businesses as described and to the extent described in the
Registration Statement and Prospectus, but only to the extent the same are
currently conducted and operated and to enter into and perform its
obligations under this Agreement, the Indenture, its Subsidiary Guarantee,
the Merger Agreement, a Subsidiary Merger Agreement and the Supplemental
Indenture, to the extent that it is a party hereto or thereto.
(iii) To the extent the Mirage Entities are parties thereto, the
Indenture, the Subsidiary Guarantees contained therein and the Supplemental
Indenture have been duly and validly authorized, and the Indenture and the
Subsidiary Guarantees have been executed and delivered by the Mirage
Entities.
<PAGE>
(iv) To such counsel's knowledge, none of the Mirage Entities is in
violation of any term or provision of its charter or bylaws. Except as
disclosed in the Registration Statement and the Prospectus, to such
counsel's knowledge, no default exists and no event has occurred which with
notice or lapse of time, or both, would constitute a default in the due
performance and observance of any express term, covenant or condition by
any of the Mirage Entities of any indenture, mortgage, deed of trust, note
or any other agreement or instrument to which any of the Mirage Entities is
a party or by which they or any of their assets or properties or businesses
may be bound or affected, where the consequences of such default would have
a material adverse effect on the assets, properties, business, results of
operations, prospects or financial condition of the Company and its
subsidiaries considered as one enterprise.
(v) Each of the Mirage Entities has all authorizations, approvals,
consents, orders, licenses, certificates and permits required of or from
any governmental or regulatory body under the Gaming Laws")(each, a
"Permit") to own, lease and license its assets and properties and to
conduct its business as described in the Registration Statement and the
Prospectus but only to the extent the same are currently conducted and
operated, to consummate the Merger and to issue the Notes and the
Subsidiary Guarantees. To such counsel's knowledge, the each of the Mirage
Entities has fulfilled and performed in all material respects all of their
obligations with respect to Permits, and, to the best of such counsel's
knowledge, neither the Mirage nor any of the Mirage Subsidiaries is in
violation of any term or provision of any such Permits, nor has any event
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or which could result in any material
impairment of the rights of the holder of any such Permits.
(vi) To the extent the Mirage Entities are parties hereto, this
Agreement has been duly authorized, executed and delivered by the Mirage
Entities. No Permits are required for the performance of this Agreement or
for the consummation of the transactions contemplated hereby or any other
transaction described in the Registration Statement to be entered into
prior to or contemporaneously with the sale of the Notes and the Subsidiary
Guarantees (including the Mirage Subsidiary Mergers), except (i) as
disclosed in the Registration Statement and (ii) except for such Permits
that have been obtained.
(vii) To the extent parties thereto, the Merger Agreement, the
Subsidiary Merger Agreements and the Supplemental Indenture have been duly
authorized by the Mirage Entities to the extent they are parties thereto
and, upon the execution and delivery thereof upon the consummation of the
Merger Agreement and the Subsidiary Merger Agreements, will constitute,
valid and binding agreements of the Mirage Guarantors enforceable against
such Mirage Guarantors in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar law relating to or affecting
creditors' rights generally or by general equitable principles and except
that certain provisions of the above-referenced documents may not be
enforceable in whole or in part under the laws of the State of Nevada, but
the inclusion of such provisions does not affect the validity of such
documents and such documents contain adequate provisions for enforcing
payment of the
38
<PAGE>
monetary obligations of the Mirage Guarantors under the Supplemental
Indenture and for the practical realization of the rights and benefits
afforded thereby, provided such enforcement is conducted in accordance with
the procedures established by the laws of the State of Nevada.
(x) The statements in Mirage's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999 under the caption "Item 1. Business-
Regulation and Licensing-Nevada" insofar as such statements constitute a
summary of matters of Nevada law, a summary of Nevada proceedings or Nevada
legal conclusions, in each case as in effect at the time such statements
were made, are correct in all material respects.
39
<PAGE>
Exhibit C
---------
Opinion matters covered by Lionel, Sawyer & Collins,
Nevada counsel to the Company
(i) Each of the domestic Company Subsidiaries listed on Schedule C
hereto (other than MGM Grand Atlantic City, Inc., MGM Grand Detroit, Inc.,
MGM Grand Detroit, LLC, MGM Grand Detroit II, LLC, 1533 North Woodward,
Inc., Jefferson Holdings, LLC and Business Development Fund, LLC)(the
"Nevada Subsidiaries"), that is a corporation, has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the State of Nevada. Each of the Nevada Subsidiaries that is a limited
liability company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Nevada.
All of the issued and outstanding shares of capital stock of each of the
Company Nevada Subsidiaries that is a corporation have been duly authorized
and validly issued, are fully paid and nonassessable and are directly owned
of record by the Company or one of the Nevada Subsidiaries. All of the
issued and outstanding membership interests of each of the Nevada
Subsidiaries that is a limited liability company have been duly authorized
and validly issued, are fully paid and nonassessable and are directly owned
of record by the Company or one of the Nevada Subsidiaries. Assuming that
the Company acquired such shares and interests in good faith and without
knowledge of any adverse claim, to the best of such counsel's knowledge,
the Company or its subsidiary holds such shares and interests free and
clear of any security interest, lien, encumbrance or other adverse claim.
To the best of such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
subscription, option, warrant or other right calling for the issuance of
any share of stock of any of the Nevada Subsidiaries or any security
convertible into, exercisable for, or exchangeable for stock of any Nevada
Subsidiary.
(ii) Each of the Nevada Subsidiaries has all requisite corporate or
limited liability company power and authority to own, lease and license its
assets and properties, to conduct its businesses as described and to the
extent described in the Registration Statement and Prospectus, but only to
the extent the same are currently conducted and operated and to enter into
and perform its obligations under this Agreement, the Indenture, its
Company Subsidiary Guarantee, the Merger Agreement and a Subsidiary Merger
Agreement, to the extent that it is a party hereto or thereto.
(iii) To the extent the Nevada Subsidiaries are parties thereto, the
Indenture and the Company Subsidiary Guarantees contained therein have been
duly and validly authorized, and the Indenture and such Company Subsidiary
Guarantees have been executed and delivered by the Nevada Subsidiaries.
(iv) To the best of such counsel's knowledge, none of the Nevada
Subsidiaries is in violation of any term or provision of its articles or
incorporation or bylaws, or articles of organization or operating
agreement, as the case may be. Except as disclosed in the Registration
Statement and the Prospectus, to the best of such counsel's knowledge, no
default exists and no event has occurred which with notice or lapse of
time, or both,
<PAGE>
would constitute a default in the due performance and observance of any
express term, covenant or condition by any of the Nevada Subsidiaries of
any indenture, mortgage, deed of trust, note or any other agreement or
instrument to which any of the Nevada Subsidiaries is a party or by which
they or any of their assets or properties or businesses may be bound or
affected, where the consequences of such default would have a material
adverse effect on the assets, properties, business, results of operations,
prospects or financial condition of the Company and its subsidiaries
considered as one enterprise.
(v) Each of the Company and the Nevada Subsidiaries has all
authorizations, approvals, consents, orders, licenses, certificates and
permits required of or from any governmental or regulatory body under the
Nevada Gaming Control Act and the rules and regulations promulgated
thereunder (the "Nevada Gaming Laws")(each, a "Nevada Permit") to own,
lease and license its assets and properties and to conduct its business as
described in the Registration Statement and the Prospectus but only to the
extent the same are currently conducted and operated, to consummate the
Merger and to issue the Notes and to execute the Company Subsidiary
Guarantees. To the best of such counsel's knowledge, the Company and each
of the Nevada Subsidiaries have fulfilled and performed in all material
respects all of their obligations with respect to Nevada Permits, and, to
the best of such counsel's knowledge, neither the Company nor any Nevada
Subsidiary is in violation of any term or provision of any such Nevada
Permits, nor has any event occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or which could
result in any material impairment of the rights of the holder of any such
Nevada Permits.
(vi) To the extent the Nevada Subsidiaries are parties hereto, this
Agreement has been duly authorized, executed and delivered by the Nevada
Subsidiaries. No Nevada Permits are required for the performance of this
Agreement or for the consummation of the transactions contemplated hereby
or any other transaction described in the Registration Statement and the
Prospectus to be entered into prior to or contemporaneously with the sale
of the Notes and the execution of the Company Subsidiary Guarantees
(including the Mirage Subsidiary Mergers), except (i) as disclosed in the
Registration Statement and the Prospectus and (ii) for such Nevada Permits
that have been obtained.
(vii) Assuming (except as hereinafter provided with respect to the
Notes) the due authorization, execution and delivery of the Indenture by
the Company, the Indenture constitutes, and the Notes, when executed by the
Company and authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and delivered against payment of the purchase
price therefor, will constitute, the valid and binding agreements of the
Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar law relating to or affecting creditors' rights
generally or by general equitable principles and except that certain
provisions of the above- referenced documents may not be enforceable in
whole or in part under the laws of the State of Nevada, but the inclusion
of such provisions does not affect the validity of such documents and such
documents contain adequate
41
<PAGE>
provisions for enforcing payment of the monetary obligations of the Company
under the Notes and for the practical realization of the rights and
benefits afforded thereby, provided such enforcement is conducted in
accordance with the procedures established by the laws of the State of
Nevada.
(viii) The Indenture (including the Company Subsidiary Guarantees
therein) has been duly authorized, executed and delivered by the Company
Nevada Subsidiaries to the extent they are parties thereto. Assuming the
due authorization, execution and delivery of the Indenture by the Company
Subsidiary Guarantors (other than the Nevada Subsidiaries) and, assuming
the due authorization, execution and delivery thereof by the Trustee, the
Indenture (including the Company Subsidiary Guarantees therein) constitutes
valid and binding agreements of the Company Subsidiary Guarantors
enforceable against such Company Subsidiary Guarantors in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar law
relating to or affecting creditors' rights generally or by general
equitable principles and except that certain provisions of the above-
referenced documents may not be enforceable in whole or in part under the
laws of the State of Nevada, but the inclusion of such provisions does not
affect the validity of such documents and such documents contain adequate
provisions for enforcing payment of the monetary obligations of the Company
Subsidiary Guarantors under the Indenture and for the practical realization
of the rights and benefits afforded thereby, provided such enforcement is
conducted in accordance with the procedures established by the laws of the
State of Nevada.
(ix) Upon the filing of the Articles of Merger (as defined in the
Merger Agreement) with the Nevada Secretary of State, the Merger will be
effective under Section 92A.240 of the Nevada Revised Statutes ("NRS").
Under Section 92A.250(1) of the NRS (a) each of the issued and outstanding
shares of capital stock of Mirage, the Company and MGMGMR Acquisition,
Inc., a Nevada corporation, will be converted as provided in the Merger
Agreement and (b) Mirage as the surviving entity will have all of the
liabilities of the constituent entities to the Merger. Upon filing of the
respective Articles of Merger (as defined in the respective Subsidiary
Merger Agreement) for the Mirage Subsidiary Mergers with the Nevada
Secretary of State, the Mirage Subsidiary Mergers will be effective under
Section 92A.240 of the NRS. Under Section 92A.250(1) of the NRS (a) each
of the issued and outstanding shares of capital stock of the Nevada
Subsidiaries and the Mirage Guarantors which are a party to a Subsidiary
Merger Agreement will be converted as provided in such Subsidiary Merger
Agreement and (b) the Post-Merger Subsidiary that is the surviving entity
will have all of the liabilities of the constituent entities to such Mirage
Subsidiary Merger
(x) The statements under the caption "Regulation and Licensing--
Nevada Gaming Regulation" (and the statements in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999 under the
caption "Item 1. Business-Hotels and Gaming-Nevada Government Regulation")
included in the Prospectus insofar as such statements constitute a summary
of matters of Nevada law, a summary of Nevada proceedings or Nevada legal
conclusions, in each case as in effect at the time such statements were
made, are correct in all material respects.
42
<PAGE>
Exhibit D
---------
Opinion matters covered by Sterns & Weinroth,
New Jersey counsel to the Company
(i) Each of MGM Grand Atlantic City, Inc. ("MGM-AC") and MAC, Corp.
("MAC" and together with MGM-AC, the "New Jersey Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of New Jersey. All of the issued and outstanding shares of
capital stock of the MGM-AC have been duly authorized and validly issued,
are fully paid and nonassessable and are directly owned of record by the
Company. Assuming the Company acquired such shares without knowledge of
any adverse claim, to the best of such counsel's knowledge, the Company or
its subsidiary holds such shares free and clear of any security interest,
lien, encumbrance or other adverse claim. All of the issued and
outstanding shares of capital stock of the MAC have been duly authorized
and validly issued, are fully paid and nonassessable and are (and
immediately following the consummation of the Merger will be) directly
owned of record by Mirage. Assuming Mirage acquired such shares without
knowledge of any adverse claim, to the best of such counsel's knowledge,
Mirage holds (and immediately following the consummation of the Merger will
hold) such shares free and clear of any security interest, lien,
encumbrance or other adverse claim. To such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding subscription, option, warrant or other right calling for the
issuance of any share of stock of any New Jersey Subsidiary or any security
convertible into, exercisable for, or exchangeable for stock of such
Subsidiary.
(ii) Each of the New Jersey Subsidiaries has all requisite corporate
power and authority to own, lease and license its assets and properties, to
conduct its businesses as described in the Registration Statement and
Prospectus, but only to the extent the same are currently conducted and
operated, and to enter into and perform its obligations under this
Agreement, the Indenture, its Subsidiary Guarantee, a Subsidiary Merger
Agreement and the Supplemental Indenture, to the extent that it is a party
hereto or thereto.
(iii) Each New Jersey Subsidiary has taken all necessary corporate
action to authorize the execution and delivery of this Agreement, the
Indenture, its Subsidiary Guarantee, a Subsidiary Merger Agreement and the
Supplemental Indenture, to the extent that it is a party hereto or thereto.
(iv) To such counsel's knowledge, no New Jersey Subsidiary is in
violation of any term or provision of its charter or bylaws. Except as
disclosed in the Registration Statement and the Prospectus, to such
counsel's knowledge, no default exists and no event has occurred which with
notice or lapse of time, or both, would constitute a default in the due
performance and observance of any express term, covenant or condition by
such New Jersey Subsidiary of any indenture, mortgage, deed of trust, note
or any other agreement or instrument to which such New Jersey Subsidiary is
a party or by which it or any of its assets or properties or businesses may
be bound or effected, where the consequences of such default would have a
material adverse effect on the assets,
<PAGE>
properties, business, results of operations, prospects or financial
condition of the Company and its subsidiaries considered as one enterprise.
(v) No authorization, approval, consent, order, license,
certificate or permit (each, "a New Jersey Permit") required of or from any
governmental or regulatory body under the New Jersey Casino Control Act and
the rules and regulations promulgated thereunder (the "New Jersey Gaming
Laws") is required for the performance of this Agreement or for the
consummation of the transactions contemplated hereby or any other
transaction described in the Registration Statement to be entered into in
connection therewith (including the Merger, the Mirage Subsidiary Mergers
and the issuance of the Subsidiary Guarantees) except as disclosed in the
Registration Statement and except for such New Jersey Permits that have
been obtained. This Agreement, the Registration Statement and the
Prospectus have been presented to any and all governmental agencies or
authorities to the extent required by any New Jersey Gaming Laws, and such
documents and the transactions contemplated hereby or thereby have been
approved by or on behalf of such governmental agencies or authorities to
the extent required by any New Jersey Gaming Laws, and such approvals have
not been revoked, modified or rescinded.
(vi) The statements in the Prospectus under the caption "Regulation
and Licensing--New Jersey Government Regulation" insofar as such statements
constitute a summary of matters of New Jersey law, a summary of New Jersey
proceedings or New Jersey legal conclusions, in each case as in effect at
the time such statements were made, are correct in all material respects.
44
<PAGE>
Exhibit E
---------
Opinion matters covered by Dickinson Wright PLLC,
Michigan counsel to the Company
(i) No authorization, approval, consent, order, license,
certificate or permit (each, a "Michigan Permit") required of or from any
governmental or regulatory body under the Michigan Gaming Control Act and
the rules and regulations promulgated thereunder (the "Michigan Gaming
Laws") is required for the performance of this Agreement or for the
consummation of the transactions contemplated hereby or any other
transaction described in the Registration Statement to be entered into in
connection therewith (including the Merger, the Mirage Subsidiary Mergers
and the issuance of the Subsidiary Guarantees) except as disclosed in the
Registration Statement and except for such Michigan Permits that have been
obtained. This Agreement, the Registration Statement and the Prospectus
have been presented to any and all governmental agencies or authorities to
the extent required by any Michigan Gaming Laws, and such documents and the
transactions contemplated hereby or thereby have been approved by or on
behalf of such governmental agencies or authorities to the extent required
by any Michigan Gaming Laws, and such approvals have not been revoked,
modified or rescinded.
(ii) The statements in the Prospectus under the caption "Regulation
and Licensing--Michigan Government Regulation and Taxation " insofar as
such statements constitute a summary of matters of Michigan law, a summary
of Michigan proceedings or Michigan legal conclusions, in each case as in
effect at the time such statements were made, are correct in all material
respects.
<PAGE>
Exhibit F
---------
Opinion matters covered by Eaton and Cottrell,
Mississippi counsel to the Company
(i) Each of Beau Rivage Distribution Corp., Beau Rivage Resorts,
Inc. and Bungalow, Inc. (the "Mississippi Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of Mississippi. Based upon certificates of the Mississippi
Subsidiaries and our review of the articles of incorporation, bylaws,
minute books and stock record books of the Mississippi Subsidiaries, all of
the issued and outstanding shares of capital stock of the Mississippi
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are directly owned of record by Mirage or a wholly
owned domestic subsidiary of Mirage. Assuming Mirage or such subsidiary
acquired such shares in good faith and without knowledge of any adverse
claim, to such counsel's knowledge, Mirage or such subsidiary holds (and
immediately following the consummation of the Merger will hold) such shares
free and clear of any security interest, lien, encumbrance or other adverse
claim. To such counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding subscription, option,
warrant or other right calling for the issuance of any share of stock of
any Mississippi Subsidiary or any security convertible into, exercisable
for, or exchangeable for stock of such Subsidiary.
(ii) Each of the Mississippi Subsidiaries has all requisite
corporate power and authority to own, lease and license its assets and
properties, to conduct its businesses as described in the Registration
Statement and Prospectus, but only to the extent the same are currently
conducted and operated, and to enter into and perform its obligations under
this Agreement, the Indenture, its Subsidiary Guarantee, a Subsidiary
Merger Agreement and the Supplemental Indenture, to the extent that it is a
party hereto or thereto, except as (x) such obligations may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium, and other
similar laws or by legal or equitable principles relating to or limiting
creditor's rights generally, or (y) rights to indemnification may be
limited, or (z) creditor's rights may be affected by the Mississippi Gaming
Control Act and the rules and regulations promulgated thereunder (the
"Mississippi Gaming Laws").
(iii) Based upon certificates of the Mississippi Subsidiaries and our
review of the articles of incorporation, bylaws and minute books of the
Mississippi Subsidiaries, each Mississippi Subsidiary has taken all
necessary corporate action to authorize the execution and delivery of this
Agreement, the Indenture, its Subsidiary Guarantee, a Subsidiary Merger
Agreement and the Supplemental Indenture, to the extent that it is a party
hereto or thereto.
(iv) To such counsel's knowledge, no Mississippi Subsidiary is in
violation of any term or provision of its articles of incorporation or
bylaws. Except as disclosed in the Registration Statement and the
Prospectus, to such counsel's knowledge, no default exists and no event has
occurred which with notice or lapse of time, or both, would constitute a
default in the due performance and observance of any express term, covenant
or condition by such Mississippi Subsidiary of any indenture, mortgage,
deed of trust,
<PAGE>
note or any other agreement or instrument to which such Mississippi
Subsidiary is a party or by which it or any of its assets or properties or
businesses may be bound or effected, where the consequences of such default
would have a material adverse effect on the assets, properties, business,
results of operations, prospects or financial condition of the Company and
its subsidiaries considered as one enterprise.
(v) No authorization, approval, consent, order, license,
certificate or permit (each, a "Mississippi Permit") required of or from
any governmental or regulatory body under Mississippi Gaming Laws is
required for the performance of this Agreement or for the consummation of
the transactions contemplated hereby or any other transaction described in
the Registration Statement to be entered into in connection therewith
(including the Merger, the Mirage Subsidiary Mergers and the issuance of
the Subsidiary Guarantees) except as disclosed in the Registration
Statement and the Prospectus and except for such Mississippi Permits that
have been obtained. This Agreement, the Registration Statement and the
Prospectus have been presented to any and all governmental agencies or
authorities to the extent required by any Mississippi Gaming Laws, and such
documents and the transactions contemplated hereby or thereby have been
approved by or on behalf of such governmental agencies or authorities to
the extent required by any Mississippi Gaming Laws, and such approvals have
not been revoked, modified or rescinded.
(vi) The statements in the Prospectus under the caption "Regulation
and Licensing--Mississippi Government Regulation" insofar as such
statements constitute a summary of matters of Mississippi law, a summary of
Mississippi proceedings or Mississippi legal conclusions, in each case as
in effect at the date such statements were made, are correct in all
material respects.
47
<PAGE>
Exhibit G
---------
Opinion matters covered by Gibson, Dunn & Crutcher
The matters set forth in (i), (v) (as to Delaware corporations), (vi),
(vii), and (xiii) to (xviii) inclusive, of Exhibit A.
In giving its opinions required by subsection (b)(1) of Section 5, Gibson,
Dunn & Crutcher LLP shall be entitled to rely on the opinions of Peter Walsh and
Lionel, Sawyer and Collins with respect to Nevada law matters, Eaton and
Cottrell with to Mississippi law matters and Sterns & Weinroth with respect to
New Jersey law matters.
