Common use of MGM Clause in Contracts

MGM. For the purposes of this Section 10.1, in addition all other document or information otherwise expressly disclosed to IW in writing, any document or information set forth in any public report (including all exhibits thereto) filed by MGM MIRAGE with the U.S. Securities and Exchange Commission shall be deemed to have been expressly disclosed to IW in writing. For the purposes of this Section 10.1, the “actual knowledge” of MGM shall mean the actual (and not constructive) knowledge of Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx XxXxxxx, Xxxxx Xxxxxxxx and Xxxx XxXxxxx. MGM hereby represents and warrants, as of the Effective Date that: (a) MGM is a Nevada limited liability company duly formed, validly existing and in good standing under the laws of the State of Nevada and has the requisite entity power and authority to enter into and carry out the terms of this Agreement; (b) all of the outstanding equity interests of MGM are owned directly or indirectly by MGM MIRAGE; (c) all entity action required to be taken by MGM to enter into this Agreement has been taken; (d) this Agreement has been duly executed and delivered by MGM and constitutes the legal, valid and binding obligation of MGM, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally, equitable principles and judicial discretion); (e) to the best of its knowledge, neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder, has resulted or will result in any violation of, or default under, the charter documents of MGM or any indenture, trust agreement, mortgage or other agreement or any permit, judgment, decree or order to which MGM is a party or by which it is bound, and there is no default and no event or omission has occurred which, with the passage of time or the giving of notice or both, would constitute a default on the part of MGM under this Agreement; (f) to the best of its knowledge, there is no action, proceeding or investigation, pending or threatened, which questions the validity or enforceability of this Agreement as to MGM; (g) MGM is in material compliance with all applicable U.S. federal, state or local laws, statutes, ordinances, rules, regulations, orders, judgments or decrees; (h) MGM has no reason to believe that it or its Affiliates will not receive any license, approval or permit necessary for the consummation of the transactions contemplated by this Agreement; (i) MGM is not, nor will the Company as a result of MGM holding Units be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended; and (j) MGM acknowledges that the Units it owns have not been registered under the Securities Act of 1933, as amended, or any other state or federal law relating to the sale or offering for sale of securities (collectively, the “Securities Laws”). MGM is aware that the Units owned by it cannot be resold without registration under applicable Securities Laws or exemption therefrom.

MGM. For the purposes of this Section 10.1, in addition all other document or information otherwise expressly disclosed to IW DW in writing, any document or information set forth in any public report (including all exhibits thereto) filed by MGM MIRAGE with the U.S. Securities and Exchange Commission shall be deemed to have been expressly disclosed to IW DW in writing. For the purposes of this Section 10.1, the “actual knowledge” of MGM shall mean the actual (and not constructive) knowledge of Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx XxXxxxx, Xxxxx Xxxxxxxx and Xxxx XxXxxxx. MGM hereby represents and warrants, as of the Effective Date date of this Agreement, that: (a) MGM is a Nevada limited liability company corporation duly formedorganized, validly existing and in good standing under the laws of the State of Nevada and has the requisite entity corporate power and authority to enter into and carry out the terms of this Agreement; (b) all of the outstanding equity interests of MGM are owned directly or indirectly by MGM MIRAGE; (c) all entity corporate action required to be taken by MGM to enter into this Agreement has been taken; (d) this Agreement has been duly executed and delivered by MGM and constitutes the legal, valid and binding obligation of MGM, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally, equitable principles and judicial discretion); (e) to the best of its knowledge, neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder, has resulted or will result in any violation of, or default under, the charter documents of MGM or any indenture, trust agreement, mortgage or other agreement or any permit, judgment, decree or order to which MGM is a party or by which it is bound, and there is no default and no event or omission has occurred which, with the passage of time or the giving of notice or both, would constitute a default on the part of MGM under this Agreement; (f) to the best “actual knowledge” of its knowledgeMGM, there is no material civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding pending or, to the “actual knowledge” of MGM, threatened against MGM, the Company, or investigationthe Project Assets, pending in any court, by any governmental entity or threatenedbefore any arbitrator or other tribunal. To the “actual knowledge” of MGM, which questions (i) MGM is not subject to any material, outstanding action, order, writ, judgment, injunction or decree of any court or governmental entity related to their respective assets or operations, including the validity or enforceability Project Assets, and (ii) the Project Assets are not in material violation of this Agreement as to MGMany Environmental Laws; (g) there are no outstanding warrants, options or rights to purchase or otherwise acquire any ownership interest of any proposed Subsidiary of the Company, and there are no contracts, agreements, arrangements or understandings, whether written or oral, relating to the issuance, sale or transfer of equity interests in any proposed Subsidiary of the Company. There are no irrevocable proxies and no voting agreements with respect to any proposed Subsidiary of the Company. There are no outstanding or authorized equity appreciation, phantom stock, profit participation or similar rights with respect to any proposed Subsidiary of the Company. There are no authorized or outstanding bonds, debentures, notes or other indebtedness of any proposed Subsidiary of the Company, the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire equity interests having the right to vote) with the holders of equity interests of any proposed Subsidiary of the Company. There are no agreements, contracts, arrangements or understandings, whether written or oral, to which any proposed Subsidiary of the Company is a party or by which any proposed Subsidiary of the Company is bound relating to the right or obligation of any Person to have his, her or its equity interests in such any proposed Subsidiary of the Company repurchased, redeemed or otherwise acquired by any other Person; (h) MGM is and the Project Assets are each in material compliance with all applicable U.S. federal, state or local laws, statutes, ordinances, rules, regulations, orders, judgments or decrees; (hi) the Current Owners have, and the Project Owner will have, a valid fee estate or leasehold in and to all real property, and valid title to all other personal and intangible property otherwise comprising the Project Assets, free and clear of all Liens, other than Liens existing under the Development Agreement and other Permitted Liens; (j) after giving effect to the formation of Project Owner and the contributions to the Company by MGM on the Closing Date of its membership interests in Project Owner, the Company will have good title to all of the equity interests in Project Owner free and clear of all Liens; (k) to its “actual knowledge,” (i) MGM has disclosed to DW in writing, whether by way of the Title Policy or otherwise, the amount and extent of the Permitted Liens that relate to items (b), (c), and (d) in the definition of “Permitted Liens” set forth above and (ii) the amount subject to the Permitted Liens that relate to item (e) are set forth in the Construction Budget. (l) MGM has no reason to believe that it or its Affiliates will not receive any license, approval or permit necessary for the consummation of the transactions contemplated by this Agreement; (im) MGM is not, nor will the Company as a result of MGM holding Units be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended; and; (jn) MGM acknowledges that the Units it owns is acquiring hereunder have not been registered under the Securities Act of 1933, as amended, or any other state or federal law relating to the sale or offering for sale of securities (collectivelysecurities. MGM’s acquisition of its Units is being made for its own account for investment, and not with a view to the “Securities Laws”)sale or distribution thereof. MGM is aware that the Units owned by it is acquiring hereunder cannot be resold without registration under applicable Securities Laws securities laws, or exemption therefrom; (o) MGM is acquiring its Units based upon its own investigation, and the exercise by MGM of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis and expertise; (p) MGM is not a “foreign person” as defined in Internal Revenue Code Section 1445 and the regulations issued thereunder; (q) except for obligations expressly disclosed to DW in writing and except for trade payables or similar obligations included in the Construction Budget, as of the date of this Agreement, there are no liabilities, whether absolute or contingent, in each case, that would otherwise be transferred with, be attached to, or otherwise encumber the Initial Contribution (including any equity interest of an entity that would be included in the Initial Contribution) when contributed to the Company by MGM; (r) except as expressly disclosed to DW in writing, there are no material amendments, supplements, waivers, extensions or other modifications to any Major Contracts or Major Leases. Except as expressly disclosed to DW in writing, there are no material oral modifications or understandings with respect to the Major Contracts or Major Leases and, without limitation, neither MGM, the Project Owner, the Current Owners, nor any of their Affiliates, has delivered to the counterparties under the Major Contracts or Major Leases, or has received from, or on behalf of, such counterparties, any notice or demand under or in connection with any of the Major Contracts or Major Leases. The Development Agreement, Major Contracts and Major Leases are in full force and effect, and, except as expressly disclosed to DW in writing, there is no breach or default by MGM, the Project Owner, the Current Owners or any of their Affiliates or, to the “actual knowledge” of MGM, by such counterparties under the Development Agreement, any Major Contract or any Major Lease; (s) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, sufficient entitlements for water and other utilities to be supplied to the Project Assets to complete construction of the Project and to operate the Project in accordance with the Business Plan; (t) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, sufficient entitlements under the Development Agreement necessary to complete construction of the Project and to operate the Project in accordance with the Business Plan; (u) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, applicable determination letters from the Federal Aviation Agency necessary for the planned height of the proposed buildings in the Project to complete construction of the Project and to operate the Project in accordance with the Business Plan; (v) MGM, the Current Owners and their Affiliates have provided or otherwise made available to DW a list and copies of all physical, environmental and other written reports (and all amendments and supplements thereto) which are material to the ownership, operation and maintenance of the Project, and which were prepared for, by or are otherwise in the possession of such parties or any of its Affiliates respecting the Project; and (w) to the “actual knowledge” of MGM and other than as a result of any regulation, decree, legislation, interpretation, or amendments thereto, by any federal, state or local governmental entity or agency, in each case, adopted or approved after the Signing Date but applied retroactively, the potential sales/use tax exemption and the potential property tax abatement applicable to the Project pursuant to Nevada State Assembly Xxxx No.621 (“AB621”), shall not be reduced or otherwise threatened solely as a result of the consummation of the transactions contemplated by this Agreement. DW acknowledges and agrees that (i) the regulations to be promulgated by the Nevada Office of Energy and the Nevada Department of Taxation pursuant to AB621 have not been finalized as of the Signing Date, (ii) any tax benefits to the Project under AB621 shall not accrue until after final completion of the Project and (x) the achievement of Silver LEED certification of the Project as determined by the US Green Building Council (“Silver Certification”), and (y) the confirmation by the State of Nevada of such Silver Certification, and (iii) that granting of such Silver Certification is not assured. (x) to the “actual knowledge” of MGM, there is no reasonable basis for any past or present employees of the Current Owners to assert any class action claims or any claims that could be made by any applicable labor union. (y) to the “actual knowledge” of MGM, as of the Signing Date, there is no reasonable basis for MGM to believe that the amounts set forth in the Construction Budget delivered to DW as of the Signing Date, are not, in the aggregate, sufficient to complete the Project within the scope of work contemplated by the Members as of the Signing Date.

MGM. For the purposes of this Section 10.1, in addition all other document or information otherwise expressly disclosed to IW DW in writing, any document or information set forth in any public report (including all exhibits thereto) filed by MGM MIRAGE with the U.S. Securities and Exchange Commission shall be deemed to have been expressly disclosed to IW DW in writing. For the purposes of this Section 10.1, the “actual knowledge” of MGM shall mean the actual (and not constructive) knowledge of Xxxxx Jxxxx Xxxxxx, Xxxx Gxxx Xxxxxx, Xxxxxx Rxxxxx Xxxxxxx, Xxxxxxx Wxxxxxx XxXxxxx, Xxxxx Bxxxx Xxxxxxxx and Xxxx Jxxx XxXxxxx. MGM hereby represents and warrants, as of the Effective Date date of this Agreement, that: (a) MGM is a Nevada limited liability company corporation duly formedorganized, validly existing and in good standing under the laws of the State of Nevada and has the requisite entity corporate power and authority to enter into and carry out the terms of this Agreement; (b) all of the outstanding equity interests of MGM are owned directly or indirectly by MGM MIRAGE; (c) all entity corporate action required to be taken by MGM to enter into this Agreement has been taken; (d) this Agreement has been duly executed and delivered by MGM and constitutes the legal, valid and binding obligation of MGM, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally, equitable principles and judicial discretion); (e) to the best of its knowledge, neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder, has resulted or will result in any violation of, or default under, the charter documents of MGM or any indenture, trust agreement, mortgage or other agreement or any permit, judgment, decree or order to which MGM is a party or by which it is bound, and there is no default and no event or omission has occurred which, with the passage of time or the giving of notice or both, would constitute a default on the part of MGM under this Agreement; (f) to the best “actual knowledge” of its knowledgeMGM, there is no material civil, criminal or administrative action, suit, claim, hearing, investigation or proceeding pending or, to the “actual knowledge” of MGM, threatened against MGM, the Company, or investigationthe Project Assets, pending in any court, by any governmental entity or threatenedbefore any arbitrator or other tribunal. To the “actual knowledge” of MGM, which questions (i) MGM is not subject to any material, outstanding action, order, writ, judgment, injunction or decree of any court or governmental entity related to their respective assets or operations, including the validity or enforceability Project Assets, and (ii) the Project Assets are not in material violation of this Agreement as to MGMany Environmental Laws; (g) there are no outstanding warrants, options or rights to purchase or otherwise acquire any ownership interest of any proposed Subsidiary of the Company, and there are no contracts, agreements, arrangements or understandings, whether written or oral, relating to the issuance, sale or transfer of equity interests in any proposed Subsidiary of the Company. There are no irrevocable proxies and no voting agreements with respect to any proposed Subsidiary of the Company. There are no outstanding or authorized equity appreciation, phantom stock, profit participation or similar rights with respect to any proposed Subsidiary of the Company. There are no authorized or outstanding bonds, debentures, notes or other indebtedness of any proposed Subsidiary of the Company, the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire equity interests having the right to vote) with the holders of equity interests of any proposed Subsidiary of the Company. There are no agreements, contracts, arrangements or understandings, whether written or oral, to which any proposed Subsidiary of the Company is a party or by which any proposed Subsidiary of the Company is bound relating to the right or obligation of any Person to have his, her or its equity interests in such any proposed Subsidiary of the Company repurchased, redeemed or otherwise acquired by any other Person; (h) MGM is and the Project Assets are each in material compliance with all applicable U.S. federal, state or local laws, statutes, ordinances, rules, regulations, orders, judgments or decrees; (hi) the Current Owners have, and the Project Owner will have, a valid fee estate or leasehold in and to all real property, and valid title to all other personal and intangible property otherwise comprising the Project Assets, free and clear of all Liens, other than Liens existing under the Development Agreement and other Permitted Liens; (j) after giving effect to the formation of Project Owner and the contributions to the Company by MGM on the Closing Date of its membership interests in Project Owner, the Company will have good title to all of the equity interests in Project Owner free and clear of all Liens; (k) to its “actual knowledge,” (i) MGM has disclosed to DW in writing, whether by way of the Title Policy or otherwise, the amount and extent of the Permitted Liens that relate to items (b), (c), and (d) in the definition of “Permitted Liens” set forth above and (ii) the amount subject to the Permitted Liens that relate to item (e) are set forth in the Construction Budget. (l) MGM has no reason to believe that it or its Affiliates will not receive any license, approval or permit necessary for the consummation of the transactions contemplated by this Agreement; (im) MGM is not, nor will the Company as a result of MGM holding Units be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended; and; (jn) MGM acknowledges that the Units it owns is acquiring hereunder have not been registered under the Securities Act of 1933, as amended, or any other state or federal law relating to the sale or offering for sale of securities (collectivelysecurities. MGM’s acquisition of its Units is being made for its own account for investment, and not with a view to the “Securities Laws”)sale or distribution thereof. MGM is aware that the Units owned by it is acquiring hereunder cannot be resold without registration under applicable Securities Laws securities laws, or exemption therefrom; (o) MGM is acquiring its Units based upon its own investigation, and the exercise by MGM of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis and expertise; (p) MGM is not a “foreign person” as defined in Internal Revenue Code Section 1445 and the regulations issued thereunder; (q) except for obligations expressly disclosed to DW in writing and except for trade payables or similar obligations included in the Construction Budget, as of the date of this Agreement, there are no liabilities, whether absolute or contingent, in each case, that would otherwise be transferred with, be attached to, or otherwise encumber the Initial Contribution (including any equity interest of an entity that would be included in the Initial Contribution) when contributed to the Company by MGM; (r) except as expressly disclosed to DW in writing, there are no material amendments, supplements, waivers, extensions or other modifications to any Major Contracts or Major Leases. Except as expressly disclosed to DW in writing, there are no material oral modifications or understandings with respect to the Major Contracts or Major Leases and, without limitation, neither MGM, the Project Owner, the Current Owners, nor any of their Affiliates, has delivered to the counterparties under the Major Contracts or Major Leases, or has received from, or on behalf of, such counterparties, any notice or demand under or in connection with any of the Major Contracts or Major Leases. The Development Agreement, Major Contracts and Major Leases are in full force and effect, and, except as expressly disclosed to DW in writing, there is no breach or default by MGM, the Project Owner, the Current Owners or any of their Affiliates or, to the “actual knowledge” of MGM, by such counterparties under the Development Agreement, any Major Contract or any Major Lease; (s) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, sufficient entitlements for water and other utilities to be supplied to the Project Assets to complete construction of the Project and to operate the Project in accordance with the Business Plan; (t) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, sufficient entitlements under the Development Agreement necessary to complete construction of the Project and to operate the Project in accordance with the Business Plan; (u) to the “actual knowledge” of MGM, there is no reason to believe that the Current Owners do not have, and the Project Owner will not have or will not be able to obtain, applicable determination letters from the Federal Aviation Agency necessary for the planned height of the proposed buildings in the Project to complete construction of the Project and to operate the Project in accordance with the Business Plan; (v) MGM, the Current Owners and their Affiliates have provided or otherwise made available to DW a list and copies of all physical, environmental and other written reports (and all amendments and supplements thereto) which are material to the ownership, operation and maintenance of the Project, and which were prepared for, by or are otherwise in the possession of such parties or any of its Affiliates respecting the Project; and (w) to the “actual knowledge” of MGM and other than as a result of any regulation, decree, legislation, interpretation, or amendments thereto, by any federal, state or local governmental entity or agency, in each case, adopted or approved after the Signing Date but applied retroactively, the potential sales/use tax exemption and the potential property tax abatement applicable to the Project pursuant to Nevada State Assembly Bxxx No.621 (“AB621”), shall not be reduced or otherwise threatened solely as a result of the consummation of the transactions contemplated by this Agreement. DW acknowledges and agrees that (i) the regulations to be promulgated by the Nevada Office of Energy and the Nevada Department of Taxation pursuant to AB621 have not been finalized as of the Signing Date, (ii) any tax benefits to the Project under AB621 shall not accrue until after final completion of the Project and (x) the achievement of Silver LEED certification of the Project as determined by the US Green Building Council (“Silver Certification”), and (y) the confirmation by the State of Nevada of such Silver Certification, and (iii) that granting of such Silver Certification is not assured. (x) to the “actual knowledge” of MGM, there is no reasonable basis for any past or present employees of the Current Owners to assert any class action claims or any claims that could be made by any applicable labor union. (y) to the “actual knowledge” of MGM, as of the Signing Date, there is no reasonable basis for MGM to believe that the amounts set forth in the Construction Budget delivered to DW as of the Signing Date, are not, in the aggregate, sufficient to complete the Project within the scope of work contemplated by the Members as of the Signing Date.

MGM. For the purposes of this Section 10.1, in addition all other document or information otherwise expressly disclosed to IW in writing, any document or information set forth in any public report (including all exhibits thereto) filed by MGM MIRAGE Parent with the U.S. Securities and Exchange Commission shall be deemed to have been expressly disclosed to IW in writing. For the purposes of this Section 10.1, the “actual knowledge” of MGM shall mean the actual (and not constructive) knowledge of Xxxxx Jxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Rxxxxx Xxxxxxx, Xxxxxxx XxXxxxx, Xxxxx Bxxxx Xxxxxxxx and Xxxx Jxxx XxXxxxx. MGM hereby represents and warrants, as of the Effective Date Date, that: (a) MGM is a Nevada limited liability company duly formed, validly existing and in good standing under the laws of the State of Nevada and has the requisite entity power and authority to enter into and carry out the terms of this Agreement; (b) all of the outstanding equity interests of MGM are owned directly or indirectly by MGM MIRAGEParent; (c) all entity action required to be taken by MGM to enter into this Agreement has been taken; (d) this Agreement has been duly executed and delivered by MGM and constitutes the legal, valid and binding obligation of MGM, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally, equitable principles and judicial discretion); (e) to the best of its knowledge, neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder, has resulted or will result in any violation of, or default under, the charter documents of MGM or any indenture, trust agreement, mortgage or other agreement or any permit, judgment, decree or order to which MGM is a party or by which it is bound, and there is no default and no event or omission has occurred which, with the passage of time or the giving of notice or both, would constitute a default on the part of MGM under this Agreement; (f) to the best of its knowledge, there is no action, proceeding or investigation, pending or threatened, which questions the validity or enforceability of this Agreement as to MGM; (g) MGM is in material compliance with all applicable U.S. federal, state or local laws, statutes, ordinances, rules, regulations, orders, judgments or decrees; (h) MGM has no reason to believe that it or its Affiliates will not receive any license, approval or permit necessary for the consummation of the transactions contemplated by this Agreement; (i) MGM is not, nor will the Company as a result of MGM holding Units be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended; and (j) MGM acknowledges that the Units it owns have not been registered under the Securities Act of 1933, as amended, or any other state or federal law relating to the sale or offering for sale of securities (collectively, the “Securities Laws”). MGM is aware that the Units owned by it cannot be resold without registration under applicable Securities Laws or exemption therefrom.