COMMERCIAL PAPER DEALER AGREEMENT
July 24, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Mirage Resorts, Incorporated, a Nevada corporation (the
"Company"), hereby appoints you as its agent on a non-exclusive
basis for the purpose of soliciting and receiving offers to
purchase from the Company from time to time its Series A
commercial paper notes, maturing not later than nine months from
date of issue (the "CP Notes") in an aggregate principal amount
outstanding not to exceed the amount authorized from time to time
by the Board of Directors of the Company. The CP Notes will be
issued under an Issuing and Paying Agency Agreement dated July
24, 1997 (the "Paying Agency Agreement") between the Company
and First Trust of New York, National Association, as Issuing and
Paying Agent (the "Paying Agent"), and will be issued in
denominations of $250,000 and integral multiples of $1,000 in
excess thereof. The Company may sell CP Notes directly to you as
principal for resale to others.
SECTION 1. ISSUANCE AND PURCHASE OF THE CP NOTES. If
you and the Company shall agree upon the sale of any CP Notes to
or through you (including, but not limited to, agreement with
respect to the price, principal amount, maturity and interest or
discount rate thereof), (i) instructions to the Paying Agent to
complete, authenticate and deliver the CP Notes shall be given in
the manner described in the Paying Agency Agreement and (ii) the
authentication and delivery to you of such CP Notes by the Paying
Agent against payment of the purchase price therefor shall
constitute the issuance of such CP Notes by the Company.
SECTION 2. OFFERING OF THE CP NOTES; RESTRICTIONS ON
TRANSFER. You agree with the Company that (i) you will deliver
a Private Placement Memorandum (as hereinafter defined) to each
prospective investor in the CP Notes prior to the initial offer
to purchase a CP Note or CP Notes by such investor, (ii) you will
not solicit offers for, or offer or sell, CP Notes by any form of
general solicitation or general advertising or in any manner
EXHIBIT 10.5
involving a public offering within the meaning of Section 4(2) of
the Securities Act of 1933, as amended (the "Securities Act"),
and Rule 506 thereunder, and (iii) you will solicit offers for CP
Notes only from, and will offer CP Notes only to, (x)
institutional investors that you reasonably believe are
"accredited investors" within the meaning of Rule 501(a) under
the Securities Act or (y) persons that you reasonably believe are
"qualified institutional buyers," as defined in Rule 144A under
the Securities Act ("QIBs"), and, in either case, who, in pur-
chasing CP Notes, may be deemed to have represented and agreed as
provided in paragraphs (1) through (7) of Section 2(b).
(b) Each Private Placement Memorandum shall
contain paragraphs in substantially the following form:
"Each purchaser of a CP Note will be deemed to have
represented and agreed as follows:
(1) It understands that the CP Notes are being issued
only in transactions not involving any public
offering within the meaning of the Securities Act;
(2) It is (A) an institutional investor which is an
"Accredited Investor," as defined in Rule 501(a)
of Regulation D under the Securities Act (an
"Institutional Accredited Investor"), or a
"bank," as defined in Section 3(a)(2) of the
Securities Act, or a savings and loan association
or other institution of the type referred to in
Section 3(a)(5)(A) of the Securities Act, that is
acting as a fiduciary in purchasing the CP Notes
for the account of an Institutional Accredited
Investor, which has such knowledge and experience
(or, if such Institutional Accredited Investor is
acting as a fiduciary, it is a fiduciary with sole
investment discretion having such knowledge and
experience) in financial and business matters that
it is capable (whether acting for its own account
or in such fiduciary capacity) of evaluating the
merits and risks of investing in such CP Notes,
has had access to such information as it deems
necessary in order to make an informed investment
decision and is not purchasing the CP Notes with a
view to, or for sale in connection with, any
distribution; or (B) in the case of sales of CP
Notes pursuant to Rule 144A under the Securities
Act, a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act (a
"QIB"), or a QIB purchasing the CP Notes on
behalf of one or more other QIBs;
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(3) If in the future it (or any other investor or any
other fiduciary or agent representing it) decides
to sell such CP Notes prior to maturity, said CP
Notes will be sold only in a transaction exempt
from registration under the Securities Act and
only to (i) you or another dealer (each, a
"Dealer") authorized by the Company, (ii) to the
Company, (iii) to a QIB, (iv) through a Dealer to
an institutional investor approved by the Dealer
as an Institutional Accredited Investor or (v) in
a transaction previously approved in writing by
the Company as exempt from registration under the
Securities Act;
(4) It understands that, although you (or any other
Dealer) or the Company may repurchase CP Notes,
none of such entities is obligated to do so, and,
accordingly, the purchaser (or any such other
investor) should be prepared to hold the CP Notes
until maturity;
(5) It acknowledges that the CP Notes sold to it by
you may be sold to it pursuant to Rule 144A under
the Securities Act;
(6) It understands that the CP Notes will bear a
legend substantially as follows:
THIS CP NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE INITIAL SALE OF THIS
CP NOTE MAY BE MADE ONLY TO AN INSTITUTIONAL
"ACCREDITED INVESTOR," AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), OR A "QUALIFIED
INSTITUTIONAL BUYER," AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT (A "QIB"). BY ITS
ACCEPTANCE OF THIS CP NOTE, THE PURCHASER HEREOF
(A) REPRESENTS THAT IT IS (i) AN INSTITUTIONAL
ACCREDITED INVESTOR OR A "BANK" AS DEFINED IN
SECTION 3(a)(2) OF THE SECURITIES ACT, OR A
SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION
OF THE TYPE REFERRED TO IN SECTION 3(a)(5)(A) OF
THE SECURITIES ACT, THAT IS ACTING AS A FIDUCIARY
ON BEHALF OF AN INSTITUTIONAL ACCREDITED INVESTOR
AND THAT THIS CP NOTE IS BEING ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR
(ii) A QIB ACTING ON BEHALF OF ITSELF OR ANOTHER
QIB, AND (B) AGREES THAT ANY RESALE OF THIS CP
NOTE WILL BE MADE ONLY IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT
(INCLUDING, IN THE CASE OF A SALE BY A QIB, A
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TRANSACTION EXEMPT PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT), AND, IN EACH CASE, ONLY TO (i)
XXXXXX XXXXXXX & CO. INCORPORATED OR ANOTHER
DEALER (EACH, A "DEALER") AUTHORIZED BY MIRAGE
RESORTS, INCORPORATED (THE "COMPANY"), (ii) TO
THE COMPANY, (iii) THROUGH A DEALER TO AN
INSTITUTIONAL INVESTOR APPROVED BY A DEALER AS AN
INSTITUTIONAL ACCREDITED INVESTOR, (iv) TO A QIB
OR (v) IN A TRANSACTION PREVIOUSLY APPROVED IN
WRITING BY THE COMPANY IN ITS SOLE AND ABSOLUTE
DISCRETION AS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT;
and
(7) It has received the Private Placement Memorandum
relating to the offering of the CP Notes and has
had full opportunity (i) to ask questions and
receive answers concerning the terms and
conditions of the offering made pursuant to such
Private Placement Memorandum and (ii) to request
from the Company and to review, and has received,
all additional information necessary to verify the
accuracy of the information contained in such
Private Placement Memorandum or incorporated
therein by reference that the Company could
provide without unreasonable effort or expense."
SECTION 3. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to and agrees with you as of the
date hereof, as of each date on which you solicit offers to
purchase CP Notes, as of each date on which the Company accepts
an offer to purchase CP Notes (including any purchase by you as
principal), as of each date the Company issues and delivers CP
Notes and as of each date the Private Placement Memorandum is
amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed
to relate to the Private Placement Memorandum as amended or
supplemented to each such date):
(a) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the State of Nevada and has full power and authority to
execute, deliver and perform this Agreement. The Company has
full power and authority to execute, deliver and perform its
obligations under the CP Notes and the Paying Agency Agreement.
(b) The CP Notes have been duly authorized by the
Company and, when executed and authenticated in accordance with
the provisions of the Paying Agency Agreement and delivered to
and paid for by the purchasers thereof, will be entitled to the
benefits of the Paying Agency Agreement and will be valid and
binding obligations of the Company, enforceable against the
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Company in accordance with their respective terms, except that
(i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability, (iii) rights to indemnity and contribution
may be limited by state or federal laws relating to securities or
by the policies underlying such laws and (iv) no representation,
warranty or agreement is made with respect to any purported
waivers of rights or defenses.
(c) This Agreement has been duly authorized,
executed and delivered by the Company.
(d) The Paying Agency Agreement has been duly
authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery by the Paying
Agent, is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except that (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting
creditors' rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability, (iii) rights to indemnity
and contribution may be limited by state or federal laws relating
to securities or by the policies underlying such laws and (iv) no
representation, warranty or agreement is made with respect to any
purported waivers of rights or defenses.
(e) The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the CP Notes and the Paying Agency Agreement, will not
contravene any provision of applicable law or the Articles of
Incorporation or Bylaws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary of the Company, the contravention of which would have
a material adverse effect on the business of the Company and its
subsidiaries, taken as a whole, and no consent, approval, au-
thorization or order of or qualification with any governmental
body or agency is required for the performance by the Company of
its obligations under this Agreement, the CP Notes and the Paying
Agency Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the CP Notes.
(f) The issuance and sale of the CP Notes under
the circumstances contemplated hereby and by the Paying Agency
Agreement do not require registration of the CP Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof and the regulations promulgated
thereunder and do not require compliance with any provision of
the Trust Indenture Act of 1939, as amended.
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(g) The Company is not an "investment company"
or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company, Act of 1940, as
amended.
(h) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Private Placement Memorandum.
(i) The CP Notes satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act.
SECTION 4. AGREEMENTS. The Company agrees with you
that:
(a) The Company will promptly deliver to you
copies of all (i) filings by the Company with the Securities and
Exchange Commission and any United States securities exchange on
which securities of the Company are listed and (ii) all material
information generally supplied by the Company to its shareholders
or by the Company to any of Standard & Poor's Ratings Group,
Xxxxx'x Investors Service, Inc. or Duff & Xxxxxx Credit Rating
Co. (collectively, the "Rating Agencies").
(b) The Company will provide to you as soon as
practicable a Private Placement Memorandum containing business
and financial information concerning the Company and a de-
scription of the CP Notes which (with any amendments or
supplements provided by the Company) may be used by you in con-
nection with the sale of the CP Notes until the Company provides
you with an updated or revised memorandum (such Private Placement
Memorandum, together with any amendments or supplements thereto,
including information incorporated therein by reference, if any,
is herein referred to as the "Private Placement Memorandum").
(c) If, at any time when you are offering CP
Notes or any CP Notes are outstanding, any event occurs or
condition exists as a result of which the Private Placement
Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances existing when such Private Placement
Memorandum is delivered to a purchaser, not misleading, or if, in
your opinion or the opinion of the Company, it is necessary at
any time to amend or supplement the Private Placement Memorandum
as then amended or supplemented to comply with applicable law,
the Company will notify you as promptly as practicable and will
prepare and furnish to you a revision or supplement to the
Private Placement Memorandum satisfactory in all material
respects to you, that will correct such statement or omission or
effect such compliance.
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(d) The Company will, whether or not any sale of
CP Notes is consummated, pay all reasonable out-of-pocket
expenses incurred by you incident to the performance of its
obligations under this Agreement, the CP Notes and the Paying
Agency Agreement, including, without limitation, reasonable fees
and expenses of your counsel.
(e) The Company will notify you promptly in
writing of any downgrading, or of its receipt of any notice of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any of the Rating Agencies.
(f) The Company agrees promptly from time to time
to take such action as you may reasonably request to qualify the
CP Notes for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you may reasonably request and to
maintain such qualifications for as long as you shall reasonably
request. The Company also agrees to reimburse you for any
reasonable fees or costs (including reasonable out-of-pocket fees
and disbursements of counsel) incurred in so qualifying the CP
Notes.
(g) The Company will not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be
integrated with the sale of the CP Notes in a manner which would
require the registration under the Securities Act of the offer
and sale of such CP Notes.
(h) The Company will not solicit any offer to buy
or offer to sell CP Notes by means of any form of general
solicitation or general advertising, within the meaning of Rule
502(c) under the Securities Act or otherwise, including: (x) any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio; and (y) any seminar or meeting whose
attendees have been invited by any general solicitation or
general advertising.
(i) The Company will furnish to you such
additional information as you may reasonably request.
(j) At any time when the Company is not subject
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the Company shall make available, upon request, to any
holder, beneficial owner or prospective purchaser of any CP Notes
the information required to be delivered to such persons pursuant
to Rule 144A(d)(4) under the Securities Act and will furnish to
you, upon request, copies of such information.
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SECTION 5. INDEMNITY AND CONTRIBUTION. The Company
agrees to (i) indemnify and hold harmless you and each person, if
any, who controls you within the meaning of either Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (you and each such other person are
collectively referred to herein as "you"), from and against any
and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum (as amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (ii) reimburse you for all reasonable out-of-
pocket expenses (including reasonable counsel fees) as they are
incurred by you in connection with investigating or defending any
such loss, claim, damage or liability. The foregoing indemnity
and reimbursement obligation shall not apply in respect of any
statement in or omission from the Private Placement Memorandum
(as so amended or supplemented) based on information pertaining
to you furnished to the Company by you, or on your behalf. The
Company shall not, without your prior written consent, effect any
settlement of any pending or threatened proceeding in respect of
which you are or could have been a party and indemnity could have
been sought hereunder by you, unless such settlement (i) includes
an unconditional release of you from all liability on claims that
are the subject matter of such proceeding and for which indemnity
could have been sought hereunder and (ii) does not include a
statement as to or an admission of fault, culpability or failure
to act, by or on behalf of you. If the indemnification provided
for in this Section 5 is unavailable or insufficient in respect
of any losses, claims, damages or liabilities referred to herein,
then you, on the one hand, and the Company, on the other hand,
shall contribute to the amount paid or payable by you as a result
of such losses, claims, damages or liabilities in such proportion
as is appropriate to reflect the relative benefits received by
you, on the one hand, and the Company, on the other hand, or, if
such allocation is not permitted by applicable law, to reflect
not only the relative benefits referred to above but also the
relative fault of each of the parties and any other relevant
equitable considerations.
SECTION 6. PAYMENT AND DELIVERY. Payment for CP
Notes sold to or through you pursuant to this Agreement shall be
made by you in immediately available funds payable to the Paying
Agent for the account of the Company in such manner and at such
time as provided in the Paying Agency Agreement, at the offices
of the Paying Agent. Delivery of CP Notes sold to or through you
hereunder shall be made against payment of the purchase price
therefor by the Paying Agent to you through the facilities of The
Depository Trust Company or in definitive form payable to the
bearer (and in such denominations as may reasonably be requested
by you) by 2:15 p.m., New York time, on the date agreed upon for
delivery.
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(b) In the event the Company shall direct the
Paying Agent to cease issuing CP Notes, the Paying Agent shall be
instructed by the Company to issue such CP Notes as you shall
certify were sold within sixty (60) minutes after your receipt of
written notice of such cessation and for which you had the prior
agreement of the Company pursuant to Section 1 of this Agreement.
You agree upon receipt of any such cessation notice to
immediately cease effecting transactions in CP Notes; provided,
however, that this provision shall have no effect with respect to
CP Notes purchased by you as principal from the Company.
SECTION 7. CONDITIONS OF YOUR OBLIGATION. If you and
the Company shall agree upon the sale of any CP Notes pursuant to
Section 1 of this Agreement, your obligation to purchase CP Notes
as principal and the obligation of any other purchaser to pur-
xxxxx XX Notes will be subject to the accuracy of the repre-
sentations and warranties on the part of the Company herein and
to the performance and observance by the Company of all
agreements herein contained on its part to be performed and
observed (in the case of your obligation to solicit offers to
purchase CP Notes, at the time of such solicitation, and, in the
case of your or any other purchaser's obligation to purchase CP
Notes, at the time the Company accepts the offer to purchase such
CP Notes and at the time of purchase) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase:
(i) there shall not have occurred any
change, or any development involving a prospective
change, in the condition, financial or otherwise,
or in the earnings, business or operations of the
Company and its subsidiaries from that set forth
in the Private Placement Memorandum, as amended or
supplemented, that, in your reasonable judgment,
is material and adverse to the Company and its
subsidiaries, taken as a whole, and that makes it,
in your reasonable judgment, impracticable to
market the CP Notes; and
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any
review for a possible change that does not
indicate the direction of the possible change, in
the rating accorded any of the Company's
securities by any of the Rating Agencies;
except, in each case described in paragraph (a)(i) or (ii) above,
as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of CP Notes, as
disclosed to you before the offer to purchase such CP Notes was
made.
(b) The following documents shall have been
provided to you at or promptly following the execution of this
Agreement:
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(i) an executed copy of the Paying Agency
Agreement;
(ii) a certified copy of resolutions of the
Board of Directors of the Company authorizing (a)
the issuance of the CP Notes and (b) the execution
and delivery of this Agreement and the Paying
Agency Agreement;
(iii) opinions of counsel to the Company
substantially in the forms of Exhibits A-1 and A-2
hereto; and
(iv) all other documents reasonably requested
by you.
SECTION 8. NOTICES. All communications hereunder will
be in writing and effective only on receipt, and, if sent to you,
will be mailed, delivered or telecopied and confirmed to Xxxxxx
Xxxxxxx & Co. Incorporated at 0000 Xxxxxxxx, Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (telecopier number: (000) 000-0000), or, if
sent to the Company, will be mailed, delivered, or telecopied and
confirmed to the Company at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000, Attention: Chief Financial Officer
(telecopy number: (000) 000-0000), or to either of the foregoing
parties, or their successors, at such other address as such party
or successor may designate from time to time by notice duly given
in accordance with the terms of this Section 8 to the other party
hereto.
SECTION 9. AMENDMENTS; SUCCESSORS. This Agreement
may be amended or supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Company and you.
This Agreement is not assignable by either party hereto without
the written consent of the other party.
(b) This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in Section 5
and the purchasers of CP Notes (to the extent expressly provided
in Section 7), and no other person will have any right or obliga-
tion hereunder.
(c) The Company will give you notice of any
proposed cancellation, amendment, supplement, waiver or consent
to or under the Paying Agency Agreement at least seven (7) days
prior to the effective date thereof.
SECTION 10. TERMINATION. This Agreement may be
terminated at any time by either party hereto upon the giving of
written notice of such termination to the other party hereto, but
without prejudice to any rights, obligations or liabilities of
either party hereto accrued or incurred prior to such termina-
tion. If this Agreement is terminated, the provisions of
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Sections 3, 4(d), 4(f), 4(g) and 5 shall survive and continue in
full force and effect. Upon execution of this Agreement by the
Company and you, the Commercial Paper Dealer Agreement between
the Company and you, dated November 13, 1995 (the "Prior
Agreement"), shall terminate, except that the provisions of
Section 5 of the Prior Agreement shall survive such termination.
SECTION 11. GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of New York.
SECTION 12. COUNTERPARTS. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 13. HEADINGS. The headings of the sections
of this Agreement have been inserted for convenience of reference
only and shall not be deemed a part of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MIRAGE RESORTS, INCORPORATED
By: /s/ XXXXXX X. XXX
-------------------------
Xxxxxx X. Xxx
Chief Financial Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXXX XXXXX
-----------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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