AMENDED AND RESTATED SPONSOR
COMPLETION GUARANTEE
(MGM MIRAGE)
This Amended and
Restated Sponsor Completion Guarantee (this “
Guarantee ”) dated as of April 29, 2009, is made
by MGM MIRAGE, a Delaware corporation (“ Completion
Guarantor ”), in favor of CITYCENTER HOLDINGS, LLC, a
Delaware limited liability company (“ Borrower
”), and BANK OF AMERICA, N.A., as collateral agent pursuant
to the Collateral Agent and Intercreditor Agreement referred to
below (in such capacity together with its successors, the “
Collateral Agent ”) for the benefit of the
Beneficiaries referred to below, with reference to the following
facts:
A. Borrower
is the owner, directly or indirectly, of the land and improvements
collectively constituting the CityCenter project, currently under
construction in Clark County, Nevada (the “ Project
”).
B. Borrower
entered into that certain Credit Agreement, dated as of
October 3, 2008 (as amended, modified or restated, the “
Credit Agreement ”), with the lenders referred to
therein (collectively, the “ Lenders ”) and Bank
of America, N.A., as the administrative agent for the Lenders (in
such capacity together with its successors, the “
Administrative Agent ”).
C. Borrower
also entered into that certain Collateral Agent and Intercreditor
Agreement, dated as of October 3, 2008 (as it may be amended,
modified or restated from time to time, the “ Collateral
Agent and Intercreditor Agreement ”), with the Collateral
Agent and the Administrative Agent, pursuant to which the
Collateral Agent agreed to act as collateral agent for the
Beneficiaries.
D. Completion
Guarantor and Dubai World, a Dubai, United Arab Emirates government
decree entity (“ Dubai World ”), each indirectly
own 50% of the issued and outstanding membership units in Borrower.
Accordingly, Completion Guarantor and Dubai World are interested in
the completion of the Project and the financial success of
Borrower.
E. As a
condition to the making of Loans under the Credit Agreement,
Completion Guarantor and Dubai World each entered into a Sponsor
Completion Guarantee, dated October 31, 2008, providing
several (and not joint or joint and several) completion guarantees
each with a liability limit of $600,000,000 (with respect to
Completion Guarantor, the “ Original Guarantee
”, with respect to Dubai World, the “ Dubai World
Completion Guarantee ”, and together, the “
Sponsor Completion Guarantees ”).
F. Administrative
Agent, Borrower and Bank of America, N.A., as disbursement agent
(in such capacity together with its successors, the “
Disbursement Agent ”), entered into that certain
Disbursement Agreement, dated October 31, 2008 (as it may be
amended, modified or restated from time to time, the “
Disbursement Agreement ”), pursuant to which such
parties have agreed, inter alia , as to disbursement
procedures for various sources of capital referred to above,
including without limitation the proceeds of draws under the
Sponsor Completion Guarantees.
G. Borrower,
the Lenders and the Administrative Agent are entering into that
certain Amendment No. 2 to Credit Agreement, dated as of the
date hereof, (as amended, modified or restated, the “
Amendment No. 2 to Credit Agreement ”), pursuant
to which, inter alia , certain obligations of Borrower and
commitments of the Lenders to make or continue certain loans and
issue letters of credit will be modified.
H. It is a
condition precedent to the execution of Amendment No. 2 to
Credit Agreement that Completion Guarantor enter into this
Guarantee to (i) guarantee the completion of the Project
without any liability limit (excluding only any obligations under
that certain Sponsor Contribution Agreement (Dubai World), dated as
of October 31, 2008, as amended (as may be further amended
from time to time, the “ Dubai World Sponsor Contribution
Agreement ), but including to ensure the payment of any Cost
Overruns (as such term is defined herein)), and (ii) secure
its obligations under this Guarantee by having a Subsidiary grant
to the Collateral Agent for the benefit of the Secured Parties a
first-priority lien and security interest in certain real and
personal property owned by such Subsidiary.
In order to induce
the Beneficiaries to enter into the Transaction Documents and to
make the credit extensions contemplated by such documents, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Completion Guarantor, as primary
obligor and not merely as surety, hereby unconditionally and
irrevocably covenants and agrees for the benefit of Borrower and
the Beneficiaries as follows:
1.
Certain Defined Terms . Capitalized terms used herein have
the meanings ascribed thereto in the Credit Agreement unless
specifically defined herein. In addition to the terms defined in
the preamble and the recitals to this Guarantee and in the body of
this Guarantee, the following terms shall have the following
respective meanings when used herein:
“
Accounts ” has the meaning set forth in the
Disbursement Agreement.
(a) the
Collateral Agent;
(b) the
Administrative Agent, together with the Lenders; and
(c) the
Junior Capital Representative and the Junior Capital Lenders if
and, to the extent rights under this Guarantee are granted by
Borrower under the Junior Capital Documents.
“
Completion Costs ” has the meaning set forth in
Section 2.1(a) hereof.
“
Completion Date ” has the meaning set forth in the
Disbursement Agreement.
“
Completion Guarantee Draw Amount ” means, as of any
Monthly Draw Date, an amount equal to the amount by which the Final
Draw Amount for such Monthly Draw Date exceeds the amount of funds
that are then available in the Accounts to fund the Final Draw
Amount being
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requested for
disbursement on such Monthly Draw Date except to the extent that
such deficiency was caused by any Dubai World Sponsor Contribution
Failure.
“
Completion Guarantee Draw Event ” means the
insufficiency of funds, for any reason (except to the extent that
such deficiency was caused by any Dubai World Sponsor Contribution
Failure), (a) as of any Monthly Draw Date, available in cash
to the Disbursement Agent in the Accounts (giving effect to the
request for funds set forth in the Final Draw Request for such
Monthly Draw Date) to fund the Final Draw Amount being requested
for disbursement on such Monthly Draw Date, or (b) as of any
date, to fund Construction Payables.
“
Construction Payables ” means the unpaid amount of any
claims made by any contractors, subcontractors, materialmen,
vendors or other legitimate claimants made in respect of works of
improvement, which have been conducted in furtherance of the
Project and take priority over the Deed of Trust as reflected on
date down title endorsements in the form of Exhibit J to the
Disbursement Agreement received by the Disbursement Agent; provided
that any such claim that is the subject of a bona fide dispute
between Borrower and the claimant, or is covered by a bond insuring
the payment of such claim, in either case, to the reasonable
satisfaction of the Disbursement Agent, shall not be considered a
“Construction Payable”.
“ Cost
Overruns ” means the amount of any and all construction
costs for the Project that exceed the total construction and other
project-related costs budgeted for the Project as set forth under
the heading “Revised Project Budget” on
Exhibit A hereto.
“ Credit
Default ” has the meaning set forth in the Disbursement
Agreement.
“ Dubai
World Sponsor Contribution Agreement ” has the meaning
set forth in the recitals.
“ Dubai
World Sponsor Contribution Failure ” shall mean any
failure by Dubai World to honor its funding obligations under the
Dubai World Sponsor Contribution Agreement, including any
successful effort on Dubai World’s part to restrain, rescind,
or recover any letters of credit posted under the Dubai World
Sponsor Contribution Agreement or any payments made under any such
letters of credit.
“
Eurodollar Business Day ” has the meaning set forth in
the Disbursement Agreement.
“
Facility Agreements ” has the meaning set forth in the
Disbursement Agreement.
“ Final
Draw Amount ” has the meaning set forth in the
Disbursement Agreement.
“ Final
Draw Request ” has the meaning set forth in the
Disbursement Agreement.
“
Guaranteed Obligations ” means the obligations of
Completion Guarantor under this Guarantee.
“ Junior
Capital Lenders ” has the meaning set forth in the
Disbursement Agreement.
“ Junior
Capital Representative ” has the meaning set forth in the
Disbursement Agreement.
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“ Monthly
Draw Date ” has the meaning set forth in the Disbursement
Agreement.
“ Secured
Obligations ” has the meaning set forth in the Collateral
Agent and Intercreditor Agreement.
“
Sponsors ” means Completion Guarantor and Dubai
World.
2.
Completion Guarantee Draw Event Payments . Completion
Guarantor hereby irrevocably agrees as follows:
2.1
Except solely to the extent of Construction Payables and other
costs that could not be paid by virtue of any Dubai World Sponsor
Contribution Failure. Completion Guarantor hereby guarantees the
completion of the Project, including with respect to the payment of
any Cost Overruns (collectively, the “ Completion
Costs ”) in accordance with the procedures set forth
below. Subject to the procedures set forth in Section 3 below,
upon the occurrence of a Completion Guarantee Draw Event,
Completion Guarantor shall make a payment to the Disbursement Agent
in an amount equal to the Completion Guarantee Draw
Amount.
2.2
The obligations of Completion Guarantor are independent of and in
addition to any other obligations of Completion Guarantor relating
to Borrower or the Project. For the avoidance of doubt, no other
equity or debt investments made by Completion Guarantor or any of
its Subsidiaries in Borrower or any of its Subsidiaries (including
without limitation any proceeds of the Sponsor Equity Commitment or
the Sponsor Subordinated Debt) or other payments made by Completion
Guarantor or its Subsidiaries to or for the benefit of Borrower or
any of its Subsidiaries shall reduce or otherwise affect the amount
of funds available to be drawn under this Guarantee.
3.
Completion Guarantee General Procedures; Draws .
3.1
If, as of the date that is three (3) Eurodollar Business Days
prior to any Monthly Draw Date, it is anticipated that a Completion
Guarantee Draw Event will occur as of the Monthly Draw Date, then
the Disbursement Agent shall be entitled to make demand on
Completion Guarantor hereunder for payment of costs associated with
completing the construction of the Project (including any Cost
Overruns) in an amount equal to the Completion Guarantee Draw
Amount. The Disbursement Agent may also make demand hereunder on a
date which is not a Monthly Draw Date upon the presentation of
supporting documentation for Construction Payables, and any such
demand shall be payable by Completion Guarantor within ten
(10) Eurodollar Business Days.
3.2
Upon receipt of a demand from the Disbursement Agent under
Section 3.1 and subject to Section 3.5, Completion
Guarantor shall make the requested payment by wire transfer of
immediately available funds to the Borrower through deposit into
the Sponsor Proceeds Account no later than the corresponding
Monthly Draw Date (or, in the case of any demand relating to
Construction Payables, within ten (10) Eurodollar Business
Days). Each such payment so deposited into the Sponsor Proceeds
Account will be disbursed by the Disbursement Agent for the
Borrower’s benefit in accordance with the terms of the
Disbursement Agreement.
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3.3
Completion Guarantor agrees that its Completion Guarantee
obligations shall not be affected by any exercise of remedies by
any Beneficiary, and that this Guarantee shall continue to be
enforceable against Completion Guarantor until it terminates in
accordance with Section 35. Completion Guarantor’s
obligation to fund the Completion Guarantee Draw Amount in
accordance with the terms hereof shall be irrevocable and
unconditional, including notwithstanding any (x) deterioration in
the financial condition of Borrower, including any bankruptcy or
similar proceeding of Borrower or any of its subsidiaries,
(y) elimination or transfer of Completion Guarantor’s
ownership interest in Borrower, including in connection with any
bankruptcy or similar proceeding or (z) any deemed
satisfaction of (or any failure by Dubai World to fund any of)
Dubai World’s obligations under the Dubai World Completion
Guarantee. u
3.4
Notwithstanding any other provision of this Guarantee to the
contrary, the Completion Guarantee is not a guarantee of the
Indebtedness incurred by the Loan Parties under the Transaction
Documents.
3.5
[Intentionally Omitted]
3.6
Completion Guarantor may effect its funding obligations hereunder
through fundings by itself or one or more of its direct or indirect
Subsidiaries. Without affecting any different arrangement between
Dubai World and Guarantor, insofar as their relationship as members
of Borrower may be concerned, each funding made pursuant to the
Completion Guarantee (whether made by Sponsor directly or through a
Subsidiary) shall be deemed to constitute a contribution to the
equity capital to Borrower.
4.
Security for Guarantee . This Guarantee is secured by a Deed
of Trust in the form of Exhibit B attached hereto and
incorporated herein by this reference (the “ Circus Deed
of Trust ”), dated as of the date of this Guarantee
pertaining to the real and personal property located at the
address(es) listed on Exhibit C attached hereto and
incorporated herein by this reference (the “
Collateral ”). In the event that the Collateral Agent
exercises its rights with respect to the Collateral as provided
herein and in the Circus Deed of Trust, the parties agree, without
in any manner limiting the scope of this Completion Guaranty or the
rights in the Collateral, that the proceeds of the Collateral shall
be deemed to be applied first to satisfy Completion
Guarantor’s obligations under this Completion Guarantee with
respect to the first $300,000,000 of Completion Costs required to
be paid under the provisions of this Completion Guarantee and then,
to satisfy the remaining Completion Costs (including any Cost
Overruns). For avoidance of doubt, none of such Collateral proceeds
may be used to satisfy any obligations of Dubai World under the
Dubai World Sponsor Contribution Agreement. Without limiting the
generality of the other provisions of this Completion Guarantee, in
the event of the occurrence of any event of default under the
Circus Deed of Trust that, in the reasonable judgment of the
Collateral Agent, impairs the value of the Collateral in an amount
not less than $25,000,000, the Beneficiaries shall be deemed to
have an accelerated obligation under this Completion Guarantee in
the amount of Completion Guarantor’s estimated liability
under this Completion Guarantee (which in no circumstances shall be
less than $500,000,000), and the Collateral Agent shall be
entitled, but not obligated, and may act (or refrain from acting)
as it determines in its sole and absolute discretion, to pursue a
foreclosure of the Circus Deed of Trust and/or to pursue any other
rights, powers, and/or remedies under the Circus Deed of Trust,
this Completion Guarantee, and/or applicable law.
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5. Nature
of Guarantee . This Guarantee is irrevocable and continuing in
nature and relates to any Guaranteed Obligations now existing or
hereafter arising. This Guarantee is a guarantee of prompt and
punctual payment and performance and is not merely a guarantee of
collection.
6.
Relationship to Other Agreements . Except as specifically
noted herein, nothing herein shall in any way modify or limit the
effect of terms or conditions set forth in any other Transaction
Document, including without limitation the Sponsor Contribution
Agreements and the Sponsor Subordination Agreement, executed by
Completion Guarantor or any other document, instrument or agreement
executed by Completion Guarantor in connection with the Project,
but each and every term and condition hereof shall be in addition
thereto.
7.
Subordination of Indebtedness of Borrower to Completion
Guarantor . Completion Guarantor represents and warrants that,
as of the date hereof, Borrower and its Subsidiaries do not have
any indebtedness owing to Completion Guarantor other than the
portion of the Sponsor Subordinated Debt that has already been
advanced to Borrower in connection with funding construction of the
Project. Completion Guarantor hereby agrees that all indebtedness
now or hereafter owed by Borrower or any of its Subsidiaries to
Completion Guarantor or any of its Subsidiaries shall be
subordinated in right of payment to the Senior Indebtedness (as
defined in the Sponsor Subordination Agreement) as and to the
extent provided in the Sponsor Subordination Agreement, and all
such present or future indebtedness of Borrower or any of its
Subsidiaries shall be subject to the Sponsor Subordination
Agreement. To the extent that, contrary to the intention of the
parties, any amount funded by Completion Guarantors (directly or
through Subsidiaries) is ever construed to be indebtedness, then
any reimbursement obligations of Borrower to Completion Guarantor
or its Subsidiaries that may result from the funding of Completion
Guarantee Draw Amounts hereunder, shall be likewise
subordinated.
8.
Statutes of Limitations and Other Laws . Until the
Guaranteed Obligations have been paid and performed in full or this
Guarantee terminates in accordance with Section 33, all the
rights, privileges, powers and remedies granted to the
Beneficiaries hereunder shall continue to exist and may be
exercised by the Beneficiaries at any time and from time to time
irrespective of the fact that any of the Secured Obligations may
have become barred by any statute of limitations. Completion
Guarantor expressly waives the benefit of any and all statutes of
limitation, and any and all Laws providing for exemption of
Property from execution or for evaluation and appraisal upon
foreclosure, to the maximum extent permitted by applicable
Laws.
9.
Waivers and Consents . Completion Guarantor consents and
agrees that the Beneficiaries 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 Secured
Obligations or any part thereof, including, without limitation, any
increase or decrease of the rate(s) of interest thereon and any
increase or decrease in the principal amount of the Secured
Obligations; (b) supplement, modify, amend or waive, or enter
into or give any agreement, approval or consent with respect to,
the Secured Obligations or any part thereof, or any of the
Transaction Documents to which Completion Guarantor is not a party
or any additional security or guarantees, or any condition,
covenant, default, remedy, right, representation or term
thereof
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or thereunder;
(c) accept new or additional instruments, documents or
agreements in exchange for or relative to any of the Transaction
Documents or the Secured Obligations or any part thereof;
(d) accept partial payments on the Secured Obligations;
(e) receive and hold additional security or guarantees for the
Secured Obligations or any part thereof; (f) release,
reconvey, terminate, waive, abandon, fail to perfect, subordinate,
exchange, substitute, transfer and/or enforce any security or
guarantees, and apply any security and direct the order or manner
of sale thereof as the Beneficiaries in their discretion may
determine; (g) release any Person from any personal liability
with respect to the Secured Obligations or any part thereof;
(h) settle, release on terms satisfactory to the applicable
Beneficiary or by operation of applicable Laws or otherwise
liquidate or enforce any of the Secured Obligations and any
security or guarantee 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 corporate or other existence of Borrower or any
other Obligor, and correspondingly restructure the Secured
Obligations, and any such merger, change, restructuring or
termination shall not affect the liability of Completion Guarantor
or the continuing effectiveness hereof, or the enforceability
hereof with respect to all or any part of the Guaranteed
Obligations.
The Collateral
Agent, on behalf of the Beneficiaries, may enforce this Guarantee
independently of any other remedy or security the Beneficiaries at
any time may have or hold in connection with the Secured
Obligations. Completion Guarantor expressly waiv
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