Guaranty Agreement - MGM Mirage and Bank of America
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of the 16th day of
August, 2004, by MGM MIRAGE, a Delaware corporation (the "Guarantor"), in favor
of BANK OF AMERICA, N.A., a national banking association ("Administrative
Agent"), as Administrative Agent for the benefit of the Lenders (individually a
"Lender" and collectively the "Lenders") from time to time party to a
Construction Loan Agreement ("Loan Agreement") of even date herewith and between
Borrower, Administrative Agent and Lenders.
PRELIMINARY STATEMENTS
Administrative Agent, Lenders and Turnberry/MGM Grand Towers, LLC, a
Nevada limited liability company ("Borrower"), have entered into, are entering
into concurrently herewith, or contemplate entering into, the Loan Agreement,
which sets forth the terms and conditions of a construction loan (the "Loan")
being made to Borrower to finance, in part, the construction of a residential
condominium project containing 576 condominium units and related amenities, all
to be located on an approximately three (3) acre parcel of land, said project to
be known as "The Residences at MGM Grand - Tower A" and to be located in Clark
County, Nevada, all as more particularly described in the Loan Agreement.
A condition precedent to Lenders' obligation to make the Loan to Borrower
is Guarantor's execution and delivery to Administrative Agent of this Guaranty.
The Loan is, or will be, evidenced by various promissory notes each made
of even date herewith by Borrower and payable to each of the Lenders in the
aggregate stated principal amount of $210,000,000.00 (such notes, as they may
hereafter be renewed, extended, supplemented, increased or modified and in
effect from time to time, and all other notes given in substitution therefor, or
in modification, renewal, or extension thereof, in whole or in part, are herein
called the "Notes").
Borrower and Administrative Agent and/or any of the Lenders may from time
to time enter into an interest rate swap agreement, International Swaps and
Derivatives Association, Inc. (ISDA) Master Agreement or other similar agreement
or arrangement to hedge the risk of variable interest rate volatility or
fluctuations of interest rates (any such agreement or arrangement as it may
hereafter be renewed, extended, supplemented, increased or modified and in
effect from time to time is herein called an "Interest Rate Protection
Agreement").
Any capitalized term used and not defined in this Guaranty shall have the
meaning given to such term in the Loan Agreement. This Guaranty is one of the
Loan Documents described in the Loan Agreement.
STATEMENT OF AGREEMENTS
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to Administrative Agent and
Lenders to extend credit to Borrower, Guarantor hereby guarantees to
Administrative Agent for the benefit of Lenders, their respective successors,
endorsees and assigns, the prompt and full payment and performance of the
indebtedness and obligations described below in this Guaranty (collectively
called the "Guaranteed Obligations"), this Guaranty being upon the following
terms and conditions:
1. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and irrevocably
guarantees to Administrative Agent for the benefit of Lenders, their respective
successors, endorsees and assigns, the punctual payment when due, whether by
lapse of time, by acceleration of maturity, or otherwise, of fifty percent (50%)
of all principal, interest (including interest accruing after the commencement
of any bankruptcy or insolvency proceeding by or against Borrower, whether or
not allowed in such proceeding), fees, late charges, costs, expenses,
indemnification indebtedness, and other sums of money now or hereafter due and
owing, or which Borrower is obligated to pay, pursuant to (a) the terms of the
Notes, the Loan Agreement, the Deed of Trust, the Environmental Agreement, any
application, agreement, note or other document executed and delivered in
connection with any Letter of Credit, any Interest Rate Protection Agreement or
any other Loan Documents, including the making of required Borrower's Deposits,
and any indemnifications contained in the Loan Documents, now or hereafter
existing, and (b) all
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renewals, extensions, refinancings, future advances, modifications, supplements
or amendments of such indebtedness, or any of the Loan Documents, or any part
thereof (the indebtedness described in clauses (a) and (b) above in this SECTION
1 is herein collectively called the "Indebtedness"). This Guaranty covers the
Indebtedness, whether presently outstanding or arising subsequent to the date
hereof, including all amounts advanced by Administrative Agent or any Lender in
stages or installments. The guaranty of payment of Guarantor as set forth in
this SECTION 1 (a) is not joint, but is several, separate and apart from, and
non-cumulative with, the guaranty of payment of any other Loan guarantors, and
(b) is a continuing guaranty of payment and not a guaranty of collection.
2. GUARANTY OF PERFORMANCE. Guarantor additionally hereby jointly and severally
with all other guarantors of the Loan, unconditionally and irrevocably
guarantees to Administrative Agent for the benefit of the Lenders the timely
performance of all other obligations of Borrower under all of the Loan
Documents, including, without limiting the generality of the foregoing:
(a) that the Improvements will be constructed in accordance with the Loan
Agreement and with the Plans;
(b) that the Improvements will be completed, lien free, and ready for
occupancy, including delivery of any permits, certificates, or governmental
approvals required by law or the Loan Agreement, on or before the Completion
Date required in the Loan Agreement; and
(c) that Borrower will duly and punctually perform and observe all other
terms, covenants, and conditions of the Note, the Deed of Trust, the Loan
Agreement, the Environmental Agreement or any other Loan Document, or any
Interest Rate Protection Agreement whether according to the present terms
thereof, at any earlier or accelerated date or dates as provided therein, or
pursuant to any extension of time or to any change or changes in the terms,
covenants, or conditions thereof now or hereafter made or granted.
If a Default (as such term is defined in the Loan Agreement) has occurred and
remains continuing, Administrative Agent may, at its option, without notice to
Guarantor or anyone else, complete the Improvements either before or after
commencement of foreclosure proceedings or before or after exercise of any other
right or remedy of Administrative Agent against Borrower or Guarantor, with such
changes or modifications in the Plans as Administrative Agent deems necessary
and expend such sums as Administrative Agent, in its sole and absolute
discretion, deems necessary or advisable to complete the Improvements, and
Guarantor hereby waives any right to contest any such expenditures by
Administrative Agent. The amount of any and all expenditures made by
Administrative Agent for the foregoing purposes shall bear interest from the
date made until repaid to Administrative Agent, at a rate per annum equal to the
interest rate provided for in the Loan Agreement and, together with such
interest, shall be due and payable by Guarantor to Administrative Agent upon
demand. Administrative Agent does not have and shall never have any obligation
to complete the Improvements or take any other action. The obligations and
liability of Guarantor under this SECTION 2 shall not be limited or restricted
by the existence of (or any terms of) the guaranty of payment under SECTION 1.
3. PRIMARY LIABILITY OF GUARANTOR.
(a) This Guaranty is an absolute, irrevocable and unconditional guaranty
of payment and performance. This Guaranty shall be effective as a waiver of, and
Guarantor hereby expressly waives, any and all rights to which Guarantor may
otherwise have been entitled under any suretyship laws in effect from time to
time, including any right or privilege, whether existing under statute, at law
or in equity, to require Administrative Agent to take prior recourse or
proceedings against any collateral, security or Person (hereinafter defined)
whatsoever.
(b) Guarantor hereby agrees that in the event of (i) a Default by Borrower
in payment or performance of the Guaranteed Obligations, or any part thereof,
when such indebtedness or performance becomes due, either by its terms or as the
result of the exercise of any power to accelerate; or (ii) the failure of
Guarantor to perform completely and satisfactorily the covenants, terms and
conditions of any of the Guaranteed Obligations as may be required pursuant to
this Guaranty; then the Guaranteed Obligations, for purposes of this Guaranty,
shall be deemed immediately due and payable at the election of Administrative
Agent, and Guarantor shall, on demand and without presentment, protest, notice
of protest, further notice of nonpayment or of dishonor, default or
nonperformance, or notice of acceleration or of intent to accelerate, or any
other notice whatsoever, without any notice having been
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given to Guarantor previous to such demand of the acceptance by Administrative
Agent of this Guaranty, and without any notice having been given to Guarantor
previous to such demand of the creating or incurring of such indebtedness or of
such obligation to perform, all such notices being hereby waived by Guarantor,
pay the amount due to Administrative Agent or perform or observe the agreement,
covenant, term or condition, as the case may be, and pay all damages and all
costs and expenses that may arise in consequence of such Default (including,
without limitation, all reasonable attorneys' fees and expenses, investigation
costs, court costs, and any and all other costs and expenses incurred by
Administrative Agent in connection with the collection and enforcement of the
Notes or any other Loan Document), whether or not suit is filed thereon, or
whether at maturity or by acceleration, or whether before or after maturity, or
whether in connection with bankruptcy, insolvency or appeal. It shall not be
necessary for Administrative Agent, in order to enforce such payment or
performance by Guarantor, first to institute suit or pursue or exhaust any
rights or remedies against Borrower or others liable on such indebtedness or for
such performance, or to enforce any rights against any security that shall ever
have been given to secure such indebtedness or performance, or to join Borrower
or any others liable for the payment or performance of the Guaranteed
Obligations or any part thereof in any action to enforce this Guaranty, or to
resort to any other means of obtaining payment or performance of the Guaranteed
Obligations; provided, however, that nothing herein contained shall prevent
Administrative Agent from suing on the Notes or foreclosing the Deed of Trust or
from exercising any other rights thereunder, and if such foreclosure or other
remedy is availed of, only the net proceeds therefrom, after deduction of all
charges and expenses of every kind and nature whatsoever, shall be applied in
reduction of the amount due on the Notes and Deed of Trust, and Administrative
Agent shall not be required to institute or prosecute proceedings to recover any
deficiency as a condition of payment hereunder or enforcement hereof. At any
sale of the Property or other collateral given for the Indebtedness or any part
thereof, whether by foreclosure or otherwise, Administrative Agent may at its
discretion purchase all or any part of the Property or collateral so sold or
offered for sale for its own account and may, in payment of the amount bid
therefor, deduct such amount from the balance due it pursuant to the terms of
the Notes, Deed of Trust, and other Loan Documents.
(c) After a Default, suit may be brought or demand may be made against
Borrower or against all parties who have signed this Guaranty or any other
guaranty covering all or any part of the Guaranteed Obligations, or against any
one or more of them, separately or together, without impairing the rights of
Administrative Agent against any party hereto. Any time that Administrative
Agent is entitled to exercise its rights or remedies hereunder, after a Default
it may in its discretion elect to demand payment and/or performance. After a
Default, if Administrative Agent elects to demand performance, it shall at all
times thereafter have the right to demand payment until all of the Guaranteed
Obligations have been paid and performed in full. If Administrative Agent elects
to demand payment, it shall at all times thereafter have the right to demand
performance until all of the Guaranteed Obligations have been paid and performed
in full.
4. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.
(a) Guarantor acknowledges that the obligations undertaken herein involve
the guaranty of obligations of persons or entities other than Guarantor and, in
full recognition of that fact, consents and agrees that Lender may, at any time
and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (a) supplement, modify,
amend, extend, renew, accelerate or otherwise change the time for payment or the
terms of the Guaranteed Obligations or any part thereof, including any increase
or decrease of the rate(s) of interest thereon; (b) supplement, modify, amend or
waive, or enter into or give any agreement, approval or consent with respect to,
the Guaranteed Obligations or any part thereof, or any of the Loan Documents to
which Guarantor is not a party or any additional security or guaranties, or any
condition, covenant, default, remedy, right, representation or term thereof or
thereunder; (c) accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Loan Documents or the Guaranteed
Obligations or any part thereof; (d) accept partial payments on the Guaranteed
Obligations; (e) receive and hold additional security or guaranties for the
Guaranteed Obligations or any part thereof; (f) release, reconvey, terminate,
waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer
and/or enforce any security or guaranties, and apply any security and direct the
order or manner of sale thereof as Lender in its sole and absolute discretion
may determine; (g) release any Person from any personal liability with respect
to the Guaranteed Obligations or any part thereof; (h) settle, release on terms
satisfactory to Lender or by operation of applicable Laws or otherwise liquidate
or enforce any Guaranteed Obligations and any security or guaranty therefor in
any manner, consent to the transfer of any security and bid and purchase at any
sale; and/or (i) consent to the merger, change or any other restructuring or
termination of the limited liability company existence or other existence of
Borrower or any other guarantor of the Loan, and correspondingly
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restructure the Guaranteed Obligations, and any such merger, change,
restructuring or termination shall not affect the liability of Guarantor or the
continuing effectiveness hereof, or the enforceability hereof with respect to
all or any part of the Guaranteed Obligations.
Upon the occurrence and during the continuance of any Default,
Lender may enforce this Guaranty independently as to Guarantor and independently
of any other remedy or security Lender at any time may have or hold in
connection with the Guaranteed Obligations. Guarantor expressly waives any right
to require Lender to marshal assets in favor of Borrower, and agrees that Lender
may proceed against Borrower, or against any other guarantor of the Loan, or
upon or against any security or remedy, before proceeding to enforce this
Guaranty, in such order as Lender shall determine in its sole and absolute
discretion. Lender may file a separate action or actions against Borrower and/or
any other guarantor of the Loan without respect to whether action is brought or
prosecuted with respect to any security or against any other person or entity,
or whether any other person or entity is joined in any such action or actions.
Guarantor agrees that Lender and Borrower or any other guarantor of the Loan may
deal with each other in connection with the Guaranteed Obligations or otherwise,
or alter any contracts or agreements now or hereafter existing between any of
them, in any manner whatsoever, all without in any way altering or affecting the
security of this Guaranty. Lender's rights hereunder shall be reinstated and
revived, and the enforceability of this Guaranty shall continue, with respect to
any amount at any time paid on account of the Guaranteed Obligations which
thereafter shall be required to be restored or returned by Lender upon the
bankruptcy, insolvency or reorganization of Borrower or any other guarantor of
the Loan, all as though such amount had not been paid. The rights of Lender
created or granted herein and the enforceability of this Guaranty with respect
to Guarantor at all times shall remain effective to guaranty the full amount of
all the Guaranteed Obligations, even though the Guaranteed Obligations, or any
part thereof, or any security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against Borrower or any other
guarantor of the Loan or surety and whether or not Borrower or any other
guarantor of the Loan shall have any personal liability with respect thereto.
Guarantor expressly waives any and all defenses now or hereafter arising or
asserted by reason of (a) any disability or other defense of Borrower or any
other guarantor of the Loan with respect to the Guaranteed Obligations, (b) the
unenforceability or invalidity of any security or guaranty for the Guaranteed
Obligations or the lack of perfection or continuing perfection or failure of
priority of any security for the Guaranteed Obligations, (c) the cessation for
any cause whatsoever of the liability of Borrower or any other guarantor of the
Loan (other than by reason of the full payment and performance of all Guaranteed
Obligations), (d) any failure of Lender to marshal assets in favor of Borrower
or any other guarantor of the Loan, (e) except as otherwise provided in this
Guaranty, any failure of Lender to give notice of sale or other disposition of
any collateral securing any Guaranteed Obligation to Guarantor or any other
person or entity or any defect in any notice that may be given in connection
with any sale or disposition of any collateral securing any Guaranteed
Obligation, (f) any failure of Lender to comply with applicable Laws in
connection with the sale or other disposition of any collateral securing any
Guaranteed Obligation or other security for any Guaranteed Obligation, including
without limitation, any failure of Lender to conduct a commercially reasonable
sale or other disposition of any collateral securing any Guaranteed Obligation
or other security for any Guaranteed Obligation, (g) any act or omission of
Lender or others that directly or indirectly results in or aids the discharge or
release of Borrower or any other guarantor of the Loan or the Guaranteed
Obligations or any security or guaranty therefor by operation of law or
otherwise, (h) any Law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation, (i) any failure of Lender to file or
enforce a claim in any bankruptcy or other proceeding with respect to any person
or entity, (j) the election by Lender, in any bankruptcy proceeding of any
person or entity, of the application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code, (k) any extension of credit or the grant of
any lien under Section 364 of the United States Bankruptcy Code, (l) any use of
cash collateral under Section 363 of the United States Bankruptcy Code, (m) any
agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person, (n) the avoidance of any lien in favor
of Lender for any reason, (o) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against any person or entity, including any discharge of, or bar
or stay against collecting, all or any of the Guaranteed Obligations (or any
interest thereon) in or as a result of any such proceeding, or (p) any action
taken by Lender that is authorized by this Section or any other provision of any
Loan Document. Guarantor expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all
GUARANTY AGREEMENT
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notices of acceptance of this Guaranty or of the existence, creation or
incurrence of new or additional Guaranteed Obligations.
(b) In the event any payment by Borrower or any other Person to
Administrative Agent is held to constitute a preference, fraudulent transfer or
other voidable payment under any bankruptcy, insolvency or similar law, or if
for any other reason Administrative Agent is required to refund such payment or
pay the amount thereof to any other party, such payment by Borrower or any other
party to Administrative Agent shall not constitute a release of Guarantor from
any liability hereunder, and this Guaranty shall continue to be effective or
shall be reinstated (notwithstanding any prior release, surrender or discharge
by Administrative Agent of this Guaranty or of Guarantor), as the case may be,
with respect to, and this Guaranty shall apply to, any and all amounts so
refunded by Administrative Agent or paid by Administrative Agent to another
Person (except Guarantor) (which amounts shall constitute part of the Guaranteed
Obligations), and any interest paid by Administrative Agent and any reasonable
attorneys' fees, costs and expenses paid or incurred by Administrative Agent in
connection with any such event. It is the intent of Guarantor and Administrative
Agent that the obligations and liabilities of Guarantor hereunder are absolute
and unconditional under any and all circumstances and that until the Guaranteed
Obligations are fully and finally paid and performed, and not subject to refund
or disgorgement, the obligations and liabilities of Guarantor hereunder shall
not be discharged or released, in whole or in part, by any act or occurrence
that might, but for the provisions of this Guaranty, be deemed a legal or
equitable discharge or release of a guarantor. Administrative Agent shall be
entitled to continue to hold this Guaranty in its possession for the longer of
(i) the period after which any performance of obligations under the
Environmental Agreement shall accrue, or (ii) a period (the "Post Payment and
Performance Period") of one year from the date the Guaranteed Obligations are
paid and performed in full and for so long thereafter as may be necessary to
enforce any obligation of Guarantor hereunder and/or to exercise any right or
remedy of Administrative Agent hereunder.
(c) If acceleration of the time for payment of any amount payable by
Borrower under the Notes, the Loan Agreement, or any other Loan Document (other
than this Guaranty) is stayed or delayed by any law or tribunal, all such
amounts shall nonetheless be payable by Guarantor on demand by Administrative
Agent.
(d) Guarantor waives: (i) to the extent permitted in paragraph 40.495(4)
of the Nevada Revised Statutes ("NRS"), the benefits of the one-action rule
under NRS Section 40.430, and (ii) to the extent permitted by NRS 104.3605,
discharge under NRS 104.3605(9).
5. SUBORDINATION. If, for any reason whatsoever, Borrower is now or hereafter
becomes indebted to Guarantor:
(a) such indebtedness and all liens, security interests and rights now or
hereafter existing with respect to property of Borrower securing such
indebtedness shall be subordinate to the Guaranteed Obligations and to all
liens, security interests and rights now or hereafter existing to secure the
Guaranteed Obligations;
(b) Guarantor shall not be entitled to enforce or receive payment,
directly or indirectly, of any such indebtedness of Borrower to Guarantor
(except that prior to a Default, partnership or limited liability company
distributions by Borrower in the ordinary course of Borrower's business shall be
permitted) until the Guaranteed Obligations have been fully and finally paid and
performed, but such restriction shall not apply during the Post-Payment and
Performance Period; and
(c) In the event of receivership, bankruptcy, reorganization, arrangement
or other debtor relief or insolvency proceedings involving Borrower as debtor,
Administrative Agent shall have the right to prove its claim in any such
proceeding so as to establish its rights hereunder and shall have the right to
receive directly from the receiver, trustee or other custodian (whether or not a
Default shall have occurred or be continuing under any of the Loan Documents),
dividends and payments that are payable upon any obligation of Borrower to
Guarantor now existing or hereafter arising, and to have all benefits of any
security therefor, until the Guaranteed Obligations have been fully and finally
paid and performed. If, notwithstanding the foregoing provisions, Guarantor
should receive any payment, claim or distribution that is prohibited as provided
above in this SECTION 5, Guarantor shall pay the same to Administrative Agent
immediately, Guarantor hereby agreeing that it shall receive the payment, claim
or distribution in trust for Administrative Agent and shall have absolutely no
dominion over the same except to pay it immediately to Administrative Agent.
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6. OTHER LIABILITY OF GUARANTOR OR BORROWER. If Guarantor is or becomes liable,
by endorsement or otherwise, for any indebtedness owing by Borrower to
Administrative Agent other than under this Guaranty, such liability shall not be
in any manner impaired or affected hereby, and the rights of Administrative
Agent hereunder shall be cumulative of any and all other rights that
Administrative Agent may have against Guarantor. If Borrower is or becomes
indebted to Administrative Agent for any indebtedness other than or in excess of
the Indebtedness for which Guarantor is liable under this Guaranty, any payment
received or recovery realized upon such other indebtedness of Borrower to
Administrative Agent may, except to the extent paid by Guarantor on the
Indebtedness or specifically required by law or agreement of Administrative
Agent to be applied to the Indebtedness, in Administrative Agent's sole
discretion, be applied upon indebtedness of Borrower to Administrative Agent
other than the Indebtedness. This Guaranty is independent of (and shall not be
limited by) any other guaranty now existing or hereafter given. Further,
Guarantor's liability under this Guaranty is in addition to any and all other
liability Guarantor may have in any other capacity.
7. LENDER ASSIGNS. This Guaranty is for the benefit of Administrative Agent, as
administrative agent for the Lenders, and their successors and assigns, and in
the event of an assignment of the Guaranteed Obligations, or any part thereof,
the rights and benefits hereunder, to the extent applicable to the Guaranteed
Obligations so assigned, may be transferred with such Guaranteed Obligations.
Guarantor waives notice of any transfer or assignment of the Guaranteed
Obligations, or any part thereof, and agrees that failure to give notice of any
such transfer or assignment will not affect the liabilities of Guarantor
hereunder.
8. BINDING EFFECT. This Guaranty is binding not only on Guarantor, but also on
Guarantor's successors and assigns. Upon the death of Guarantor, if Guarantor is
a natural person, this Guaranty shall continue against Guarantor's estate as to
all of the Guaranteed Obligations, including that portion incurred or arising
after the death of Guarantor and shall be provable in full against Guarantor's
estate, whether or not the Guaranteed Obligations are then due and payable. If
this Guaranty is signed by more than one Person, then all of the obligations of
Guarantor arising hereunder shall be jointly and severally binding on each of
the undersigned, and their respective heirs, personal representatives,
successors and assigns, and the term "Guarantor" shall mean all of such Persons
and each of them individually.
9. GOVERNING LAW; FORUM; CONSENT TO JURISDICTION. The validity, enforcement, and
interpretation of this Guaranty, shall for all purposes be governed by and
construed in accordance with the laws of the State of Nevada and applicable
United States federal law, and is intended to be performed in accordance with,
and only to the extent permitted by, such laws. All obligations of Guarantor
hereunder are payable and performable at the place or places where the
Guaranteed Obligations are payable and performable. Guarantor hereby irrevocably
submits generally and unconditionally for Guarantor and in respect of
Guarantor's property to the nonexclusive jurisdiction of any state court, or any
United States federal court, sitting in the state specified in the first
sentence of this Section and to the jurisdiction of any state or United States
federal court sitting in the state in which any of the Land is located, over any
suit, action or proceeding arising out of or relating to this Guaranty or the
Guaranteed Obligations. Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, any objection that Guarantor may now or hereafter have
to the laying of venue in any such court and any claim that any such court is an
inconvenient forum. Final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon Guarantor and may
be enforced in any court in which Guarantor is subject to jurisdiction.
Guarantor hereby releases, to the extent permitted by applicable law, all errors
and all rights of exemption, appeal, stay of execution, inquisition, and other
rights to which Guarantor may otherwise be entitled under the laws of the United
States of America or any State or possession of the United States of America now
in force or which may hereinafter be enacted. The authority and power to appear
for and enter judgment against the Guarantor shall not be exhausted by one or
more exercises thereof or by any imperfect exercise thereof and shall not be
extinguished by any judgment entered pursuant thereto. To the extent permitted
by applicable law, such authority may be exercised on one or more occasions or
from time to time in the same or different jurisdiction as often as the
Administrative Agent shall deem necessary and desirable.
10. INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Guaranty or the
application thereof to any Person or circumstance shall, for any reason and to
any extent, be declared to be invalid or unenforceable, neither the remaining
provisions of this Guaranty nor the application of such provision to any other
Person or circumstance shall be affected thereby, and the remaining provisions
of this Guaranty, or the applicability of such provision to
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other Persons or circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable law.
11. ATTORNEYS' FEES AND COSTS OF COLLECTION. After a Default, Guarantor shall
pay on demand all reasonable attorneys' fees and all other reasonable costs and
expenses incurred by Administrative Agent in the enforcement of or preservation
of Administrative Agent's rights under this Guaranty including, without
limitation, all reasonable attorneys' fees and expenses, investigation costs,
and all court costs, whether or not suit is filed hereon, or whether at maturity
or by acceleration, or whether before or after maturity, or whether in
connection with bankruptcy, insolvency or appeal. Guarantor agrees to pay
interest on any expenses or other sums due to Administrative Agent under this
SECTION 11 that are not paid when due, at a rate per annum equal to the interest
rate provided for in the Notes. Guarantor's obligations and liabilities under
this SECTION 11 shall survive any payment or discharge in full of the Guaranteed
Obligations.
12. PAYMENTS. All sums payable under this Guaranty shall be paid in lawful money
of the United States of America that at the time of payment is legal tender for
the payment of public and private debts.
13. CONTROLLING AGREEMENT. It is not the intention of Administrative Agent or
Guarantor to obligate Guarantor to pay interest in excess of that lawfully
permitted to be paid by Guarantor under applicable law. Should it be determined
that any portion of the Guaranteed Obligations or any other amount payable by
Guarantor under this Guaranty constitutes interest in excess of the maximum
amount of interest that Guarantor, in Guarantor's capacity as guarantor, may
lawfully be required to pay under applicable law, the obligation of Guarantor to
pay such interest shall automatically be limited to the payment thereof in the
maximum amount so permitted under applicable law. The provisions of this SECTION
13 shall override and control all other provisions of this Guaranty and of any
other agreement between Guarantor and Administrative Agent.
14. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GUARANTOR. Guarantor hereby
represents, warrants, and covenants that (a) Guarantor expects to derive a
material and substantial benefit, directly or indirectly, from the making of the
Loan to Borrower and from the making of this Guaranty by Guarantor; (b) this
Guaranty is duly authorized and valid, and is binding upon and enforceable
against Guarantor; (c) Guarantor is not, and the execution, delivery and
performance by Guarantor of this Guaranty will not cause Guarantor to be, in
violation of or in default with respect to any law or in default under any
agreement or restriction by which Guarantor is bound or affected; and (d)
Guarantor has full power and authority to enter into and perform this Guaranty.
In addition to the foregoing, Guarantor represents and warrants to Lender
that Guarantor has established adequate means of obtaining from Borrower, on a
continuing basis, financial and other information pertaining to the business,
operations and condition (financial and otherwise) of Borrower and its
properties, and Guarantor now is and hereafter will be completely familiar with
the businesses, operations and condition (financial and otherwise) of Borrower
and its properties. Guarantor hereby expressly waives and relinquishes any duty
on the part of Lender (should any such duty exist) to disclose to Guarantor any
matter, fact or thing related to the businesses, operations or condition
(financial or otherwise) of Borrower or its properties, whether now known or
hereafter known by Lender during the life of this Guaranty. With respect to any
of the Guaranteed Obligations, Lender need not inquire into the powers of
Borrower or the members or employees acting or purporting to act on Borrower's
behalf, and all Guaranteed Obligations made or created in good faith reliance
upon the professed exercise of such powers shall be secured hereby.
15. NOTICES. All notices, requests, consents, demands and other communications
required or which any party desires to give hereunder or under any other Loan
Document shall be in writing and, unless otherwise specifically provided in such
other Loan Document, shall be deemed sufficiently given or furnished if
delivered by personal delivery by nationally recognized overnight courier
service, or by registered or certified United States mail, postage prepaid,
addressed to the party to whom directed at the addresses specified in this
Guaranty (unless changed by similar notice in writing given by the particular
party whose address is to be changed) or by facsimile. Any such notice or
communication shall be deemed to have been given either at the time of personal
delivery or, in the case of courier or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile, upon receipt; provided that, service of a notice required by any
applicable statute shall be considered complete when the requirements of that
statute are met. Notwithstanding the foregoing, no notice of change of address
shall be effective except upon actual receipt. This Section shall not be
construed in any way to
GUARANTY AGREEMENT
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affect or impair any waiver of notice or demand provided in this Guaranty or in
any Loan Document or to require giving of notice or demand to or upon any Person
in any situation or for any reason.
16. CUMULATIVE RIGHTS. The exercise by Administrative Agent of any right or
remedy hereunder or under any other Loan Document, or at law or in equity, shall
not preclude the concurrent or subsequent exercise of any other right or remedy.
Administrative Agent shall have all rights, remedies and recourses afforded to
Administrative Agent by reason of this Guaranty or any other Loan Document or by
law or equity or otherwise, and the same (a) shall be cumulative and concurrent,
(b) may be pursued separately, successively or concurrently against Guarantor or
others obligated for the Guaranteed Obligations, or any part thereof, or against
any one or more of them, or against any security or otherwise, at the sole and
absolute discretion of Administrative Agent, (c) may be exercised as often as
occasion therefor shall arise, it being agreed by Guarantor that the exercise
of, discontinuance of the exercise of or failure to exercise any of such rights,
remedies, or recourses shall in no event be construed as a waiver or release
thereof or of any other right, remedy, or recourse, and (d) are intended to be,
and shall be, nonexclusive. No waiver of any default on the part of Guarantor or
of any breach of any of the provisions of this Guaranty or of any other document
shall be considered a waiver of any other or subsequent default or breach, and
no delay or omission in exercising or enforcing the rights and powers granted
herein or in any other document shall be construed as a waiver of such rights
and powers, and no exercise or enforcement of any rights or powers hereunder or
under any other document shall be held to exhaust such rights and powers, and
every such right and power may be exercised from time to time. The granting of
any consent, approval or waiver by Administrative Agent shall be limited to the
specific instance and purpose therefor and shall not constitute consent or
approval in any other instance or for any other purpose. No notice to or demand
on Guarantor in any case shall of itself entitle Guarantor to any other or
further notice or demand in similar or other circumstances. No provision of this
Guaranty or any right, remedy or recourse of Administrative Agent with respect
hereto, or any default or breach, can be waived, nor can this Guaranty or
Guarantor be released or discharged in any way or to any extent, except
specifically in each case by a writing intended for that purpose (and which
refers specifically to this Guaranty) executed, and delivered to Guarantor, by
Administrative Agent.
17. TERM OF GUARANTY. This Guaranty shall continue in effect until all the
Guaranteed Obligations are fully and finally paid, performed and discharged.
18. FINANCIAL STATEMENTS. Guarantor shall provide to Administrative Agent,
concurrently with the provision thereof to the Administrative Agent or other
primary creditor representative under its Primary Senior Credit Agreement, as
and when required by the terms of such Primary Senior Credit Agreement, copies
of Guarantor's quarterly and annual financial statements. The foregoing
requirement may be satisfied by Guarantor's provision of a hyperlink to an
internet posting of such financial statements. "Primary Senior Credit Agreement"
means the Third Amended and Restated Loan Agreement dated as of November 24,
2003, executed by, among others, MGM Mirage, as borrower, and Bank of America,
N.A., as administrative agent, and any senior credit facility executed by the
aforementioned parties which replaces same, as the same may be modified, amended
or extended from time to time.
19. DISCLOSURE OF INFORMATION. Administrative Agent and/or any Lender may sell
or offer to sell the Loan or interests in the Loan to one or more assignees or
participants and may disclose to any such assignee or participant or prospective
assignee or participant, to Administrative Agent's or such Lender's affiliates,
including without limitation Banc of America Securities LLC, to any regulatory
body having jurisdiction over Administrative Agent and/or such Lender and to any
other parties as necessary or appropriate in Administrative Agent's and/or such
Lender's reasonable judgment, any information Administrative Agent and/or such
Lender now has or hereafter obtains pertaining to the Guaranteed Obligations,
this Guaranty, or Guarantor, including, without limitation, information
regarding any security for the Guaranteed Obligations or for this Guaranty,
credit or other information on Guarantor, Borrower, and/or any other party
liable, directly or indirectly, for any part of the Guaranteed Obligations.
20. WAIVER OF RIGHTS OF SUBROGATION. Notwithstanding anything to the contrary
elsewhere contained herein or in any other Loan Document to which any Guarantor
is a party, Guarantor hereby expressly waives with respect to Borrower and
Borrower's successors and assigns (including any surety) and any other person or
entity which is directly or indirectly a creditor of Borrower, any and all
rights at Law or in equity to subrogation, to reimbursement, to exoneration, to
contribution, to setoff or to any other rights that could accrue to a surety
against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a holder or
GUARANTY AGREEMENT
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transferee against a maker, and which Guarantor may have or hereafter acquire
against Borrower or any other such person or entity in connection with or as a
result of Guarantor's execution, delivery and/or performance of this Guaranty or
any other Loan Document to which Guarantor is a party. Guarantor agrees that it
shall not have or assert any such rights against Borrower or Borrower's
successors and assigns or any other person or entity (including any surety)
which is directly or indirectly a creditor of Borrower, either directly or as an
attempted setoff to any action commenced against Guarantor by Borrower (as
borrower, co-borrower or in any other capacity), Lender or any other such person
or entity. Guarantor hereby acknowledges and agrees that this waiver is intended
to benefit Borrower and Lender and shall not limit or otherwise affect
Guarantor's liability hereunder, under any other Loan Document to which
Guarantor is a Party, or the enforceability hereof or thereof.
18. NO FIDUCIARY RELATIONSHIP. The relationship between Lenders and Guarantor is
solely that of lender and guarantor by reason of this Guaranty. Administrative
Agent and Lenders have no fiduciary or other special relationship with or duty
to Guarantor and none is created hereby or may be inferred from any course of
dealing or act or omission of Administrative Agent or Lenders.
19. INTERPRETATION. The term "Lenders" shall be deemed to include any subsequent
holder(s) of the Note(s). Whenever the context of any provisions hereof shall
require it, words in the singular shall include the plural, and words in the
plural shall include the singular. Captions and headings in the Loan Documents
are for convenience only and shall not affect the construction of the Loan
Documents.
20. TIME OF ESSENCE. Time shall be of the essence in this Guaranty with respect
to all of Guarantor's obligations hereunder.
21. COUNTERPARTS. This Guaranty may be executed in multiple counterparts, each
of which, for all purposes, shall be deemed an original, and all of which taken
together shall constitute but one and the same agreement.
22. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement between
Administrative Agent and Guarantor with respect to the guaranty by Guarantor of
the Guaranteed Obligations. This Guaranty supersedes all prior agreements and
understandings, if any, with respect to the guaranty by Guarantor of the
Guaranteed Obligations. No condition or conditions precedent to the
effectiveness of this Guaranty exist. This Guaranty shall be effective upon
execution by Guarantor and delivery to Administrative Agent. This Guaranty may
not be modified, amended or superseded except in a writing signed by
Administrative Agent and Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or
superseded.
23. NON-INVOLVEMENT OF TRACINDA. The parties hereto acknowledge that neither
Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a
party to this Guaranty or any of the other Loan Documents executed as of the
date hereof. Accordingly, the parties hereto hereby agree that in the event (i)
there is any alleged breach or default by any party under this Agreement or any
such Loan Document, or (ii) any party hereto has any claim arising from any such
Loan Document, no party hereto, nor any party claiming through it (to the extent
permitted by applicable Law), shall commence any proceedings or otherwise seek
to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation
under any such Loan Document by reason of such alleged breach, default or claim.
24. MANDATORY ARBITRATION. Any controversy or claim between or among the parties
hereto including but not limited to those arising out of or relating to this
Guaranty or any related agreements or instruments, including any claim based on
or arising from an alleged tort, shall be determined by binding arbitration in
accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes of Judicial Arbitration and Mediation Services, Inc.
("J.A.M.S."), as amended from time to time, and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules shall control.
Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to this Guaranty may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this agreement applies in any court having jurisdiction over such
action.
a. Special Rules. The arbitration shall be conducted in Clark County,
Nevada administered by J.A.M.S. who will appoint an arbitrator; if J.A.M.S. is
unable or legally precluded from administering the arbitration, then the
American Arbitration Association will serve. All arbitration hearings will be
commenced within ninety (90) days of
GUARANTY AGREEMENT
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the demand for arbitration; further, the arbitrator shall only, upon a showing
of cause, be permitted to extend the commencement of such hearing for up to an
additional sixty (60) days.
b. Reservations of Rights. Nothing in this Guaranty shall be deemed to (i)
limit the applicability of any otherwise applicable statutes of limitation or
any waivers contained in this Guaranty; or (ii) be a waiver by Administrative
Agent or Lenders of the protection afforded to them by 12 U.S.C. Sec. 91 or any
substantially equivalent state law; or (iii) limit the right of Lender (A) to
exercise self help remedies such as (but not limited to) setoff, or (B) to
foreclose against any real or personal property collateral, or (C) to obtain
from a court provisional or ancillary remedies such as (but not limited to)
injunctive relief or the appointment of a receiver. Administrative Agent and/or
a Lender may exercise such self help rights, foreclose upon such property, or
obtain such provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to this Guaranty. At
Administrative Agent and/or Lenders' option, foreclosure under a Deed of Trust
may be accomplished by any of the following: the exercise of a power of sale
under the Deed of Trust, or by judicial sale under the Deed of Trust, or by
judicial foreclosure. Neither the exercise of self help remedies nor the
institution or maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
25. WAIVER OF JURY TRIAL. GUARANTOR AND ADMINISTRATIVE AGENT (BY ACCEPTANCE OF
THIS GUARANTY) MUTUALLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
GUARANTOR AND ADMINISTRATIVE AGENT OR LENDERS MAY BE PARTIES ARISING OUT OF, IN
CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS GUARANTY, THE NOTES, THE DEED
OF TRUST, THE LOAN AGREEMENT AND ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY HERETO OR TO ANY LOAN DOCUMENT. IT IS AGREED AND UNDERSTOOD THAT THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES
TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS GUARANTY. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY
MADE BY GUARANTOR, AND ADMINISTRATIVE AGENT AND GUARANTOR HEREBY REPRESENT THAT
NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED
BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR BORROWER, ADMINISTRATIVE AGENT, AND LENDERS ENTERING
INTO THE SUBJECT LOAN TRANSACTION.
No provision in the Loan Documents regarding waiver of jury trial or
submission to jurisdiction and/or venue in any court is intended or shall be
construed to be in derogation of the provisions in any Loan Document for
arbitration of any controversy or claim.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[Signature page follows.]
GUARANTY AGREEMENT
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IN WITNESS WHEREOF, Guarantor duly executed this Guaranty as of the date
first written above.
Address of Guarantor: GUARANTOR:
3600 Las Vegas Blvd. South MGM MIRAGE, a Delaware corporation
Las Vegas, Nevada 89109
Attn: Bryan L. Wright
Fax: 702-693-8677
bwright@mgmmirage.com By: /s/ BRYAN L. WRIGHT
------------------------------------------
Bryan L. Wright,
and Vice President -- Assistant General Counsel
3600 Las Vegas Blvd. South
Las Vegas, Nevada 89109
Attn: Gary Jacobs,
Executive Vice President,
General Counsel
Fax: 702-693-7628
gary_jacobs@mgmmirage.com
Address of Administrative Agent:
Bank of America, N.A.
100 Southeast 2nd Street
14th Floor
Miami, Florida 33131-2100
Attn: Real Estate Administration
FL7-950-14-05
Fax No.: (305) 533-2456
STATE OF NEVADA )
:ss
COUNTY OF CLARK )
The foregoing instrument was acknowledged before me this 16th day of
August, 2004, by Bryan L. Wright as Vice President - Assistant General Counsel
of MGM Mirage, a Delaware corporation. He/she is personally known to me (yes)
(no) or produced as identification.
/s/ KATHERINE M. LIVINGSTON
------------------------------------------
Notary State of NEVADA
--------------------------
Name of Notary: Katherine M. Livingston
--------------------------
Notary Expiration Date: 6-28-06
------------------
(Notary Seal)
# 2067617_v6
GUARANTY AGREEMENT
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