COMMERCIAL PAPER DEALER AGREEMENT
November 13, 1995
CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Mirage Resorts, Incorporated, a Nevada corporation
(the "Company"), hereby appoints you as its agent, and as
agent for THE MIRAGE CASINO-HOTEL, Treasure Island Corp.,
Bellagio, GNLV, CORP. and MH, INC., each of which is a
Nevada corporation and a direct or indirect wholly owned
subsidiary of the Company (collectively, the "Co-Issuing
Subsidiaries" and, together with the Company, the
"Issuers"), on a non-exclusive basis for the purpose of
soliciting and receiving offers to purchase from the Issuers
from time to time their 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 as of November
13, 1995 (the "Paying Agency Agreement") between the Issuers
and BankAmerica National Trust Company, as Issuing and
Paying Agent (the "Paying Agent"), and will be issued in
denominations of $150,000 and integral multiples of $1,000
in excess thereof. The Company may sell CP Notes directly
to you as principal for resale to others. For purposes of
this Agreement, the Company will act for itself and on
behalf of the Co-Issuing Subsidiaries.
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
Issuers.
SECTION 2. OFFERING OF THE CP NOTES; RESTRICTIONS
ON TRANSFER. (a) 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
Exhibit 99.1
offer or sell, CP Notes by any form of general solicitation
or general advertising or in any manner 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) qualified institutional
buyers as defined in Rule 144A under the Securities Act
("QIBs") and, in either case, who, in purchasing CP Notes,
may be deemed to have represented and agreed as provided in
paragraphs (1) through (4) 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;
(3) If in the future it (or any other
investor or any other fiduciary or agent
representing it) decides to sell such CP
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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 authorized
by the Company (each, a "Dealer"), (ii) to
the Company or any other Issuer, (iii) to a
QIB, (iv) through a Dealer to an
institutional investor approved by the Dealer
as an Institutional Accredited Investor or to
a QIB 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), the Company or another
Issuer 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
TRANSACTION EXEMPT PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT), AND, IN EACH CASE,
ONLY TO (i) CS FIRST BOSTON CORPORATION OR
ANOTHER DEALER AUTHORIZED BY THE COMPANY
(EACH, A "DEALER"), (ii) TO MIRAGE RESORTS,
INCORPORATED (THE "COMPANY"), (iii) TO THE
MIRAGE CASINO-HOTEL, TREASURE ISLAND CORP.,
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BELLAGIO, GNLV, CORP. OR MH, INC., (iv)
THROUGH A DEALER TO AN INSTITUTIONAL INVESTOR
APPROVED BY THE DEALER AS AN INSTITUTIONAL
ACCREDITED INVESTOR, (v) TO A QIB OR (vi) 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 the
other Issuers 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 Issuers 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 Issuer
issue and deliver 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) Each Issuer has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the State of Nevada. The Company has full power
and authority to execute, deliver and perform this
Agreement. Each Issuer has full power and authority to
execute, deliver and perform its respective obligations
under the CP Notes and the Paying Agency Agreement.
(b) The CP Notes have been duly authorized
by the Issuers 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 Issuers, enforceable 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
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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 Issuers and,
assuming the due authorization, execution and delivery by
the Paying Agent, is a valid and binding agreement of the
Issuers, enforceable 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, and the execution and
delivery by the Issuers of, and the performance by the
Issuers of their respective obligations under, the CP Notes
and the Paying Agency Agreement will not contravene any
provision of applicable law or the Articles of Incorporation
or Bylaws of any Issuer 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, authorization 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, or by the Issuers of their
respective obligations under 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 connec
tion with the offer and sale of the CP Notes and except for
such approval under the Nevada Gaming Control Act and the
regulations promulgated thereunder as has been obtained and
is in full force and effect.
(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 com
pliance with any provision of the Trust Indenture Act of
1939, as amended.
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(g) No Issuer is 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 any Issuer are listed and
(ii) all material information generally supplied by the
Company to its shareholders or by any Issuer to any of
Standard & Poor's Ratings Group, Xxxxx'x Investor Services,
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 description of the CP Notes which (with any amendments
or supplements provided by the Company) may be used by you
in connection 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.
(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
6
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
Issuer'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 Issuers 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 Issuers 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.
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
7
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 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. 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. (a) 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.
(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. Your
obligation to solicit offers to purchase CP Notes as agent
of the Issuers, your obligation to purchase CP Notes as
8
principal and the obligation of any other purchaser to
purchase CP Notes will be subject to the accuracy of the
representations 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 Issuer'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:
(i) an executed copy of the Paying
Agency Agreement;
(ii) a certified copy of resolutions of
the Board of Directors of each Issuer authorizing (a) the
issuance of the CP Notes and (b) the execution and delivery
of this Agreement (in the case of the Company only) 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
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(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 CS First Boston Corporation at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxxx (telecopy number: 212-318-1498), 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. (a) 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 obligation 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 termination. If this Agreement is
terminated, the provisions of Sections 3, 4(d), 4(f), 4(g)
and 5 shall survive and continue in full force and effect.
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.
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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.
CS FIRST BOSTON CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Director
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