FIRST SUPPLEMENTAL
INDENTURE
FIRST
SUPPLEMENTAL INDENTURE (this “ Supplemental
Indenture ”), dated as of June 15, 2009, among
MGM MIRAGE, a Delaware corporation (the “
Company ”), the Subsidiary Guarantors party
hereto and U.S. BANK NATIONAL ASSOCIATION (the “
Trustee ”), having its Corporate Trust Office
at 60 Livingston Avenue, St. Paul, MN 55107-1419. Capitalized terms
used herein have the meanings ascribed thereto in the Indenture (as
defined below) unless specifically defined herein.
WHEREAS, the
Company and the Subsidiary Guarantors have heretofore executed and
delivered to the Trustee an indenture (the “
Indenture ”), dated as of November 14,
2008, providing for the issuance of the Company’s 13% Senior
Secured Notes due 2013 (the “ Notes
”);
WHEREAS,
Section 9.01 of the Indenture provides, among other things,
that the Indenture and the Notes may be amended in the manner
contemplated under Sections 1.1 and 1.2 hereof with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Notes at the time then outstanding (the
“ Majority Holders ”);
WHEREAS,
Section 9.01(c)(i) of the Indenture provides, among other
things, that the Indenture may be amended to cure a mistake,
omission, or defect therein in the manner contemplated under
Sections 1.3 and 1.4 hereof without the consent of any
Holder;
WHEREAS, the
Company intends to amend certain provisions in the Indenture in the
manner set forth below under Article I hereof (the “
Proposed Amendments ”);
WHEREAS, the
Majority Holders have consented to the Proposed Amendments set
forth in Sections 1.1 and 1.2 hereof;
NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Company, the Subsidiary Guarantors and the Trustee mutually
covenant and agree as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
SECTION 1.1.
Amendment to Section 1.01 of the Indenture.
Section 1.01 of the Indenture
is hereby amended by deleting in its entirety the definition of the
term “ Non-Collateral Asset Sale ” set
forth therein and replacing it with the following:
“
Non-Collateral Asset Sale ” means (a) the
sale, conveyance, transfer or other disposition of any assets or
properties other than Collateral and rights in respect thereof
(including, without limitation, by way of a sale and leaseback)
other than in the ordinary course of business, and (b) the
issue or sale by the Company or any of its Restricted Subsidiaries
of Equity Interests of any of the Restricted Subsidiaries other
than Equity Interests that constitute Collateral, in the case of
either clause (a) or (b), whether in a single transaction or a
series of related transactions that have a fair market value (as
determined in good faith by the Board of Directors and evidenced by
a certified Board Resolution delivered to the Trustee) in excess of
$250.0 million or for net cash proceeds in excess of $250.0
million. Notwithstanding the foregoing: (a) a transfer of
assets or properties by the Company to a Restricted Subsidiary or
by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (b) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (c) a Restricted Payment or a Permitted Investment
that is permitted by Section 4.16; (d) a disposition of
cash or Cash Equivalents; (e) a disposition of either obsolete
equipment or equipment that is damaged, worn out or otherwise no
longer useful in the business; (f) any Sale and
Leaseback
Transaction involving an asset (other than a Gaming Facility) in
respect of which Sale and Leaseback Transaction less than
$250.0 million of Attributable Debt is incurred; (g) any
surrender or waiver of contract rights or a settlement, release or
surrender of contract, tort or other claims of any kind or a grant
of any Lien not prohibited by the terms of this Indenture;
(h) like kind exchanges of properties where such properties
have substantially equivalent fair market values (as determined in
good faith by the Company or, if such fair market values is
$250.0 million or more, the Board of Directors and in such
case evidenced by the delivery to the Trustee of a certified copy
of Board Resolutions documenting such determination) and
(i) any sale, conveyance, transfer or other disposition made
pursuant to that certain Purchase Agreement, dated
December 13, 2008 and amended on March 12, 2009, by and
among The Mirage Casino-Hotel, Treasure Island Corp., and Ruffin
Acquisition, LLC shall in each case not be considered a
Non-Collateral Asset Sale.
SECTION 1.2.
Amendment to Section 4.10 of the Indenture.
Section 4.10 of the Indenture
is hereby amended by deleting it in its entirety and replacing it
with the following:
SECTION 4.10
NON-COLLATERAL ASSET SALES.
(a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate a Non-Collateral Asset Sale, unless:
(i) the Company or
such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Non-Collateral Asset Sale at
least equal to the fair market value (as determined in good faith
by the Company or, if $250.0 million or more, the Board of
Directors and in such case evidenced by the delivery to the Trustee
of a certified copy of Board Resolutions documenting such
determination) of the assets or properties sold or otherwise
disposed of; and
(ii) at least 75%
of the consideration therefor received by the Company or such
Restricted Subsidiary, as the case may be, is in the form of cash
or Cash Equivalents; provided that the following shall be
deemed to be cash for purposes of this Section 4.10 and for no
other purpose:
(A) any
liabilities (as reflected in the Company’s or such Restricted
Subsidiary’s most recent balance sheet or in the footnotes
thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or
liabilities to the extent owed to the Company or any Affiliate of
the Company) that are assumed by the transferee of any such assets
or properties and for which the Company and all of its Restricted
Subsidiaries have been validly released by all applicable creditors
in writing;
(B) any
Indebtedness (as reflected in the Company’s or such
Restricted Subsidiary’s most recent balance sheet or in the
footnotes thereto) of the Company or such Restricted Subsidiary
(other than Indebtedness that is by its terms subordinated to the
Notes or Indebtedness to the extent owed to the Company or any
Affiliate of the Company) validly released in writing in exchange
for assets of the Company or its Restricted Subsidiaries;
and
(C) any
securities, notes or other similar obligations received by the
Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received) within 180 calendar days
following the closing of such Non-Collateral Asset Sale.
(b) Within 360
calendar days after the receipt of any Net Proceeds of any
Non-Collateral Asset Sale, the Company or such Restricted
Subsidiary shall apply the Net Proceeds from such Non-Collateral
Asset Sale,
(i) to prepay,
purchase, redeem or pay at maturity any Indebtedness that ranks
equally with the Notes or any Subsidiary Guarantee in right of
payment (“ Pari Passu Indebtedness ”)
including Indebtedness outstanding pursuant to any agreement
providing for revolving Indebtedness so long as the commitment
thereunder is permanently reduced by a corresponding amount, at a
price in cash in an amount not to exceed 100% of the principal
amount thereof plus accrued and unpaid interest to the date of
purchase; or
(ii) to make an
offer to all Holders (the “ Non-Collateral Asset Sale
Offer ”) to prepay, purchase or redeem the Notes, at
an offer price in cash (the “ Non-Collateral Asset Sale
Payment ”) equal to 100% of their principal amount
plus accrued and unpaid interest to the date of purchase subject to
the right of Holders of record on a Regular Record Date to receive
interest on the relevant Interest Payment Date in accordance with
the procedures set forth in this Indenture and the Notes;
or
(iii) to make
(A) an Investment in any one or more businesses;
provided that such Investment in any business is in the form
of the acquisition of Capital Stock and results in the Company or
another of its Restricted Subsidiaries, as the case may be, owning
an amount of the Capital Stock of such business such that it
constitutes a Restricted Subsidiary, (B) capital expenditures
or (C) acquisitions of other long-term productive assets or
properties, in each of (A), (B) and (C), used or useful in a
Similar Business;
provided that, in the case of clause (iii) above, a
binding commitment entered into not later than such 360th day shall
be treated as a permitted application of the Net Proceeds from the
date of such commitment so long as the Company, or such other
Restricted Subsidiary enters into such commitment with the good
faith expectation that such Net Proceeds will be applied to satisfy
such commitment within 180 calendar days of such commitment (an
“ Acceptable Non-Collateral Commitment ”)
and, in the event any Acceptable Non-Collateral Commitment is later
cancelled or terminated for any reason before the Net Proceeds are
applied in connection therewith, such Net Proceeds are not actually
so invested or paid in accordance with clause (iii) above by
the end of such 180-day period or there remain Net Proceeds after
any Investment, expenditure or acquisition made in accordance with
clause (iii) above, then such remaining Net Proceeds (if such
remaining Net Proceeds exceed $1.0 million) shall be applied
in accordance with clause (i) or (ii) above; provided
further that in the case of clause (i) above, a written
undertaking delivered to the Trustee not later than such 360
th day shall be treated as a permitted application
of the Net Proceeds so long as the repurchase, redemption,
prepayment or repayment occurs within 180 calendar days
after
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