AMENDED AND RESTATED SPONSOR
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.
“ Beneficiaries ” means:
(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
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.
“ 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.
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.
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
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