Exhibit 10.1


 


EXECUTION COPY


 


 


TRANSITION SERVICES AGREEMENT



BY AND BETWEEN



MGM MIRAGE



AND



POSTER FINANCIAL GROUP, INC.



DATED AS OF OCTOBER 24, 2003


 

















 


This TRANSITION SERVICES AGREEMENT (this “Agreement”), dated as of
October 24, 2003, is by and between MGM MIRAGE, a Delaware corporation
(“Parent”), and Poster Financial Group, Inc., a Nevada corporation
(“Purchaser”), subject to the provisions of Section 8.


 


WHEREAS, Purchaser, Parent, Mirage Resorts, Incorporated, a Nevada
corporation (“Seller”), GNLV, CORP., a Nevada corporation (“GNLV”), GNL, CORP.,
a Nevada corporation (“GNL”), and Golden Nugget Experience, LLC, a Nevada
limited liability company (“GNELLC”), are parties to that certain Stock
Purchase Agreement (the “Purchase Agreement”), dated as of June 24, 2003,
as amended from time to time, whereby, among other things, Purchaser is
purchasing all the issued and outstanding Shares from Seller;


 


WHEREAS, the MGM Acquired Entities have used certain services provided
by Parent and its subsidiaries and divisions (other than the MGM Acquired
Entities, collectively, the “MGM Group”) under the terms of a Management
Agreement in the case of (1) GNLV and GNELLC, effective as of January 1,
1985, by and between Golden Nugget, Inc. (the former name of Mirage Resorts,
Incorporated) and GNLV (the “GNLV Management Agreement”), and (2) GNL,
effective as of September 30, 1988, by and between Golden Nugget, Inc.
(the former name of Mirage Resorts, Incorporated) and GNL (the “GNL Management
Agreement” and together with the GNLV Management Agreement, the “Management
Agreements”) or by third parties under contract to members of the MGM Group;


 


WHEREAS, the parties have recognized under Section 5.17 of the
Purchase Agreement the existing operational interdependencies among the MGM
Group, on the one hand, and the MGM Acquired Entities, on the other hand, and
the parties have agreed that it would be appropriate and in their respective
best interests that members of the MGM Group continue to provide those services
to the MGM Acquired Entities for a transitional period, subject to the terms
and conditions of this Agreement; and


 


WHEREAS, in connection with Section 5.17 of the Purchase Agreement
and in light of the termination of the Management Agreements upon consummation
of the Closing, Purchaser and the MGM Acquired Entities desire that the MGM
Group provide, or cause to be provided, to the MGM Acquired Entities, and the
MGM Group is willing to provide, or cause to be provided, to the MGM Acquired
Entities, the transition services set forth in the Schedules attached hereto
for a transitional period, subject to the terms and conditions of this
Agreement.


 


NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:


 


1.                                       Agreement
to Provide Transition Services.


 


1.1                                 Agreement. 
Upon the terms and subject to the conditions contained in this
Agreement, the MGM Group hereby agrees to provide, or cause to be provided, to
the MGM Acquired Entities the Transition Services (as defined herein) upon
consummation of the Closing


 

















 


and for the transition period with respect to the applicable Transition
Service as set forth in Section 1.4(b) (each a “Transition Period”), and
the MGM Acquired Entities agree to pay the Service Costs (as defined herein)
for such Transition Services as set forth herein during the applicable
Transition Period.


 


1.2                                 Transition Services. 
In this Agreement, the term “Transition Services” shall mean and refer
to the (a) Race and Sports Book Transition Services set forth on
Schedule A attached hereto, (b) Retail and Inventory Management Transition
Services set forth on Schedule B attached hereto, (c) Marketing Transition
Services set forth on Schedule C attached hereto, (d) LaBrea Bakery
Transition Services set forth on Schedule D attached hereto, (e)
Horticulture Transition Services set forth on Schedule E attached hereto,
(f) Information System Services Transition Services set forth on
Schedule F attached hereto and (g) Customer Databases Transition Services
set forth on Schedule G attached hereto (as such Schedules may be amended
or modified from time to time as provided herein).


 


1.3                                 Additional Services. 
The parties have each exerted their best efforts to identify each
material service to be provided by the MGM Group to the MGM Acquired Entities
during the Transition Period with respect to the applicable Transition Services
as set forth in Section 1.4 and to address such services in this
Agreement.  However, the parties
acknowledge that there may be material services that they would have intended
to be included that have inadvertently been omitted from this Agreement.  The parties agree to cooperate and negotiate
in good faith using Commercially Reasonable Efforts in order to come to an
agreement regarding the continued provision of such material services that have
inadvertently been omitted from this Agreement, on terms that are acceptable to
the parties.  Subject to compliance by
the MGM Group with the preceding sentence, Purchaser and the MGM Acquired
Entities acknowledge that they may not reach an acceptable arrangement with the
MGM Group to provide any additional services. 
Notwithstanding anything in this Section 1.3 to the contrary, the
parties acknowledge and agree that they have previously discussed and
considered the list of services set forth on Schedule H attached hereto
and that none of such services were inadvertently omitted from the Schedules to
this Agreement, and therefore, would not be eligible to be considered as
“additional” services; provided  that the foregoing shall not
preclude the provision of any service listed on Schedule H attached hereto
solely to the extent it is expressly included in the Transition Services.


 


1.4                                 Term of Agreement.


 


(a)                                  Unless terminated earlier pursuant
to Section 1.5, this Agreement will terminate and be of no further force
or effect immediately as of the time and date that the last remaining
Transition Period with respect to the applicable Transition Service as set
forth in Section 1.4(b), as any such Transition Period shall have either
expired or been terminated or may have been extended pursuant to amendments
hereto; provided  that upon termination or expiration of this
Agreement, (i) neither party shall be relieved of any liability for any breach
or nonfulfillment of any provision of this Agreement and (ii) Section 2,
Section 6, Section 7, Section 11.4, Section 11.5,
Section 11.11, Section 11.12, Section 11.13, Section 11.18
and Section 11.19 shall survive any termination or expiration of this
Agreement.


 


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(b)                                 The Transition Period for Race and
Sports Book Transition Services shall commence upon consummation of the Closing
and shall expire, unless otherwise set forth in Schedule A, on the earlier
to occur of (i) twelve (12) months from the Closing Date and (ii) termination
by Purchaser.  The Transition Period for
Retail and Inventory Management Transition Services shall commence upon
consummation of the Closing and shall expire on the earlier to occur of (i)
nine (9) months from the Closing Date and (ii) termination by Purchaser.  The Transition Period for Marketing
Transition Services shall commence upon consummation of the Closing and shall
expire upon the occurrence of a “Change of Control” under the terms of the
indenture governing the senior secured notes issued as part of the Financing on
or prior to the Closing Date.  The
Transition Period for LaBrea Bakery Transition Services shall commence upon
consummation of the Closing and shall expire on the earlier to occur of (i)
nine (9) months from the Closing Date and (ii) termination by Purchaser.  The Transition Period for Horticulture
Transition Services shall commence upon consummation of the Closing and shall
expire on the earlier to occur of (i) nine (9) months from the Closing Date and
(ii) termination by Purchaser.  The
Transition Period for Information System Services Transition Services shall
commence upon consummation of the Closing and shall expire in accordance with
the terms set forth on Schedule F attached hereto.  The Transition Period for Customer Databases
Transition Services shall commence upon consummation of the Closing and shall
expire in accordance with the terms set forth on Schedule G attached
hereto.


 


1.5                                 Termination or Phase-Out of
Transition Services.


 


(a)                                  Purchaser and the MGM Acquired
Entities shall have the unconditional right, in their sole and absolute
discretion, to direct in writing that any or all (or any component service
making up a part of a particular Transition Service) of the Transition Services
be terminated effective on a date established by Purchaser or the MGM Acquired
Entities (the “Early Termination”) that is (i) at least ten Business Days after
the date Purchaser or the MGM Acquired Entities provided notice of Early
Termination and (ii) prior to the termination date for such Transition Service
specified for such Transition Service. 
Any Early Termination shall be final, and the amounts payable by the MGM
Acquired Entities hereunder with respect to such terminated Transition Service
shall be appropriately prorated in accordance with Section 2.2.  Subject to compliance with
subsection (i) above and the preceding sentence, Purchaser and the MGM
Acquired Entities shall not be subject to any Liability or Loss for the Early
Termination.  In the event one or more,
but less than all, of the Transition Services (or any component service making
up a part of a particular Transition Service) is terminated or phased-out, this
Agreement will continue in full force and effect with respect to any of the
Transition Services (or any component service making up a part of a particular
Transition Service) not so discontinued, subject to the applicable Transition
Period for such Transition Service.


 


(b)                                 This Agreement may be terminated as
follows: (i) by either party immediately in the event the other party has been
adjudicated bankrupt, has failed to vacate an involuntary bankruptcy or
reorganization petition within sixty (60) days of the date of such filing,
files such a petition on a voluntary basis, fails to vacate the appointment of
a receiver or trustee for such party or for a substantial portion of its
assets, makes an assignment for the benefit of such party’s creditors or ceases
to do business as a going concern; (ii) by Purchaser and the MGM Acquired
Entities upon written notice to Parent in the event that any member of the MGM
Group breaches any material term of this Agreement if such member of the MGM
Group


 


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fails to remedy such breach within the cure period set forth in
Section 11.1; or (iii) by the MGM Group upon written notice to Purchaser
in the event that Purchaser and/or the MGM Acquired Entities breaches any
material term of this Agreement if Purchaser and/or the MGM Acquired Entities
fails to remedy such breach within the cure period set forth in Section 11.1.


 


(c)                                  Each party acknowledges that each
other party and their respective Affiliates are engaged in businesses that are
or may be subject to and exist because of privileged licenses issued by
Governmental Entities.  If any party or
any parent, subsidiary or other Affiliate of any party is directed to cease
doing business with any other party by any Governmental Entity, or if any party
shall determine, in such party’s reasonable and informed judgment, that any
other party or any of its officers, directors, key employees, agents or
representatives (i) is or might be engaged in, or is about to be engaged in,
any activity or (ii) was or is involved in any relationship, either of which
would or does jeopardize any other party’s licenses, or those of a parent, subsidiary
or other Affiliate, or if any such license is threatened to be or is denied,
suspended or revoked, then this Agreement may be terminated by the affected
party, without further liability to any other party upon written notice to the
party causing such action to be taken; provided  that the
terminating party shall be entitled to receive all fees, credits and other
amounts that have accrued or otherwise become due but are unpaid at the time of
termination.


 


2.                                       Payment
for Transition Services.


 


2.1                                 Service Costs. 
In consideration for the MGM Group’s provision of the Transition
Services, the MGM Acquired Entities (on a basis apportioned by Purchaser)
shall, and Purchaser shall cause the MGM Acquired Entities to, reimburse the
member of the MGM Group specified on the invoice due for the costs of providing
the applicable Transition Service (the “Service Costs”).  The payment obligations of the MGM Acquired
Entities to the MGM Group are joint and several, notwithstanding any
apportionment by Purchaser.  The Service
Costs shall be determined in accordance with the corresponding
Schedule for such Transition Service; provided  that in no
event shall Service Costs include any cost, expense, fee, charge or other
amount (a) with respect to any item, service, property or other matter for
which the MGM Group is otherwise obligated to pay under the Purchase Agreement
or (b) relating to any obligation, covenant or agreement of the MGM Group
pursuant to the Purchase Agreement for which the MGM Group is obligated to pay under
the Purchase Agreement.


 


2.2                                 Reimbursement of Service Costs. 
Within twenty (20) days after the end of each calendar month during the
Transition Period, Parent shall invoice Purchaser for Service Costs; provided
that any non-bad faith failure of Parent to provide to Purchaser an
invoice within said twenty (20) day period shall not waive Parent’s right to
thereafter provide an invoice to Purchaser and Parent’s entitlement to receive
payment in respect thereof in accordance with the terms of this Agreement.  Such invoices shall set forth in reasonable
detail the Transition Services provided during such month and the Service Costs
payable by the MGM Acquired Entities therefor. 
All invoices shall be paid not later than thirty (30) calendar days
following receipt by Purchaser of Parent’s invoice in accordance with the
written instructions provided by Parent to Purchaser; provided  that
no such payment by Purchaser or any of the MGM Acquired Entities shall be
deemed to be a waiver by Purchaser or any of the MGM Acquired Entities of its
rights under Section 2.3. 
Notwithstanding anything in this Section 2.2 to the contrary, (a)
Parent


 


5

















 


shall invoice on a weekly basis GNLV and GNL for goods purchased for
GNLV’s and GNL’s retail stores and delivered to the GNLV and GNL retail stores
or the MGM Group corporate retail warehouse and (b) invoices for these amounts
shall be paid not later than ten (10) calendar days following receipt by
Purchaser of Parent’s invoice in accordance with the written instructions
provided by Parent to Purchaser; provided  that no such payment by
Purchaser or any of the MGM Acquired Entities shall be deemed to be a waiver by
Purchaser or any of the MGM Acquired Entities of its rights under Section 2.3.  In the event goods purchased for GNLV’s and
GNL’s retail stores are delivered to the MGM Group corporate retail warehouse,
unless instructed by management of GNLV or GNL, as the case may be, to the contrary,
such goods shall be promptly delivered to the GNLV and GNL retail stores.  The amount of any Service Costs shall be
prorated to the extent necessary on an invoice to reflect the portion of the
specified time period for which Transition Services were actually rendered vis a vis the applicable billing cycle
time period.  All amounts payable by
Purchaser and the MGM Acquired Entities for the Transition Services rendered
pursuant to this Agreement shall be remitted in United States dollars.


 


2.3                                 Audits; Objections. 
The members of the MGM Group providing Transition Services shall keep
records of the Transition Services provided by or on their behalf and
supporting documentation of all costs incurred in providing, or causing to be
provided, the Transition Services. 
Subject to Section 11.13 and applicable Gaming Laws, Purchaser and
the MGM Acquired Entities shall have the right, upon reasonable prior written
notice and at Purchaser’s and the MGM Acquired Entities’ expense, to review the
books and records of the MGM Group solely with respect to the MGM Group’s
obligations under this Agreement and to confer with employees of the MGM Group
responsible for providing or supervising the Transition Services to review the
accuracy of any of the invoices provided to Purchaser hereunder (during regular
business hours and without unreasonably disrupting the MGM Group’s normal
operations).  In the event that
Purchaser or any of the MGM Acquired Entities disputes any such invoice or the
amount of any such remittances, Purchaser or any of the MGM Acquired Entities shall
deliver a written statement describing the dispute to Parent within thirty (30)
days following receipt of the disputed invoice.  The statement shall provide a reasonably detailed description of
the disputed items.  Upon delivery of
the written statement, Parent and Purchaser and the applicable MGM Acquired
Entity shall cooperate and negotiate in good faith and use Commercially
Reasonably Efforts to resolve such disputed charges.  If they are unable to resolve such disputed charges within thirty
(30) days of delivery of the written statement, Purchaser or the applicable MGM
Acquired Entity may elect, by written notice to Parent within ten (10) days
following the end of such thirty (30) day period, to have an Independent
Accounting Firm (selected in accordance with Section 2.5(b) of the
Purchase Agreement) review all the supporting information of the MGM Group as
may be reasonably requested by such Independent Accounting Firm to determine
the correctness of the disputed charges. 
The MGM Group shall give the Independent Accounting Firm access at all
reasonable times to the books and records, employees and independent
contractors of the MGM Group responsible for providing or supervising the
Transition Services.  The Independent
Accounting Firm shall be instructed to use every reasonable effort to perform
its services within thirty (30) days of its selection and, in any case, as
promptly as practicable after its selection. 
The determination of the Independent Accounting Firm shall be conclusive
and binding on the parties.  Any
expenses relating to the engagement of the Independent Accounting Firm shall be
paid by Purchaser and Parent in proportion to the percentage of the dollar
value of the disputed items prevailed upon by each


 


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Person.  Except as set forth in
the previous sentence, each of Purchaser and Parent shall pay all advisors’
fees, charges and expenses incurred by such Person in connection with the
dispute.  If Purchaser or the MGM
Acquired Entities fails to make an election within the ten (10) day period
following the end of such thirty (30) day period, the MGM Acquired Entities
shall be liable for the full amount of such disputed notice.


 


3.                                       Service
Standards; Disclaimer of Warranties; Scope of 
Services.


 


(a)                                  Except as otherwise specified in
this Agreement, as a general principle, the MGM Group shall, and shall cause
its independent contractors to, perform, or cause to be performed, the
Transition Services consistent with past practice.  Subject to the foregoing sentence and except as otherwise set
forth in this Agreement, the MGM Group shall not be in breach of this Agreement
or have any Liability of any nature whatsoever to Purchaser and the MGM
Acquired Entities in connection with the performance of this Agreement, and
Purchaser and the MGM Acquired Entities shall be solely responsible for all
losses, damages, costs and expenses of whatever nature incurred by Purchaser
and the MGM Acquired Entities in connection with the performance of this Agreement
by the MGM Group, except to the extent that such losses, damages, costs and
expenses are attributable to gross negligence, bad faith or willful misconduct
on the part of the MGM Group or any of their respective directors, officers or
employees.


 


(b)                                 EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE OR GIVEN BY EITHER PARTY HEREUNDER, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY TRANSITION SERVICES
PROVIDED HEREUNDER.


 


4.                                       Force
Majeure.  Any delays in or failure
of performance of the Transition Services shall not constitute a default
hereunder if and to the extent such delay or failure of performance is caused
by occurrences beyond the control of the member of the MGM Group providing such
Transition Service.  Parent shall (a)
promptly notify Purchaser and the applicable member of the MGM Acquired
Entities in writing and furnish all relevant information concerning the event
of force majeure, (b) use Commercially Reasonable Efforts to avoid or remove
the cause of nonperformance, (c) cause members of the MGM Group to provide
Transition Services to the MGM Acquired Entities at the same level they provide
such services to their own business units or other members of the MGM Group,
(d) assist the MGM Acquired Entities in finding third parties to provide
affected Transition Services during the period of force majeure and (e) proceed
to cause the MGM Group to perform their respective obligations promptly when
such cause is removed.  The affected
provisions and/or other requirements of this Agreement shall be suspended
during the period of such disability and the MGM Group shall have no liability
to Purchaser and the applicable member of the MGM Acquired Entities in
connection therewith other than by reason of breach or nonfulfillment of its
covenants in this Section 4.


 


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5.                                       Access.


 


(a)                                  Subject to Section 11.13, upon
prior notice, Purchaser and the applicable member of the MGM Acquired Entities,
on the one hand, and the MGM Group, on the other hand, shall make available to
the other on a timely basis information and materials reasonably requested by
the other to enable it to provide or receive any of the Transition
Services.  Upon prior notice and subject
to applicable Gaming Laws, employees and agents of the MGM Group and of
Purchaser and the MGM Acquired Entities shall be given access to the premises
of the other during regular business hours if reasonably necessary to provide
or receive any of the Transition Services. 
While on the premises of the other, the employees and agents of the
visiting party shall abide by the rules and regulations of the hosting party.  The visiting party shall indemnify, defend
and hold the hosting party harmless from and against any and all damages,
losses, costs and expenses suffered or incurred by reason of damage to person
or property caused by the gross negligence, bad faith or willful misconduct of
its employees or agents while on the premises of the hosting party.


 


(b)                                 Subject to compliance with
applicable Gaming Laws, at Purchaser’s request, Parent shall use Commercially
Reasonable Efforts to provide Purchaser and the MGM Acquired Entities, shortly
after such request, with access to Chris Nordling or his suitable designee of
the MGM Group with responsibility for coordinating the Transition
Services.  Subject to compliance with
applicable Gaming Laws, at the MGM Group’s request, Purchaser shall provide the
applicable member of the MGM Group, shortly after such request, with access to
Joanne Beckett or her suitable designee of Purchaser with responsibility for
coordinating the Transition Services.


 


6.                                       Assistance.  Parent agrees for a period of twenty-four
(24) months from the Closing Date to use its Commercially Reasonable Efforts to
cooperate with, and provide assistance to, Purchaser and the MGM Acquired
Entities in negotiating Contracts for goods and services with third parties for
which any member of the MGM Group had or has an ongoing commercial
relationship.  Parent agrees that such
assistance to Purchaser and the MGM Acquired Entities may include, among other
arrangements, participating in group buying arrangements of any member of the
MGM Group, access to volume discounts, rebates, special products, services or
promotions and financing arrangements offered or provided to any member of the
MGM Group and introductions to vendors and suppliers to any member of the MGM
Group.  Parent agrees to use its
Commercially Reasonable Efforts to cooperate with, and provide assistance to,
the MGM Acquired Entities and Purchaser in negotiating Contracts for the
purchase and/or upgrade of slot machines at GNLV and GNL.  Notwithstanding anything in this Agreement
to the contrary, the obligations set forth in the preceding sentence of this
Section 6 shall survive any termination of this Agreement or of any
obligation to provide Transition Services and shall continue until such time as
a “Change of Control” occurs under the terms of the indenture governing the
senior secured notes issued as part of the Financing on or prior to the Closing
Date.


 


7.                                       Indemnification.


 


(a)                                  The MGM Group shall, jointly and
severally, defend and indemnify Purchaser Indemnified Parties in respect of,
and hold each of them harmless from and against,


 


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any and all Losses suffered, incurred or sustained by any of them or to
which any of them becomes subject, resulting from, arising out of, or relating
to (i) the gross negligence, bad faith or willful misconduct of any member of
the MGM Group or their respective directors, managers, officers or employees in
providing the Transition Services, (ii) any breach of or inaccuracy in any
representation, warranty, covenant, obligation or agreement on the part of any
member of the MGM Group contained in this Agreement and (iii) nonfulfillment of
or failure to perform any covenant, obligation or agreement on the part of any
member of the MGM Group contained in this Agreement.


 


(b)                                 Purchaser Indemnifying Parties
shall, jointly and severally, defend and indemnify the MGM Group in respect of,
and hold each of them harmless from and against, any and all Losses suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of, or relating to (i) the gross negligence, bad
faith or willful misconduct of Purchaser or any of the MGM Acquired Entities or
their respective directors, managers, officers or employees in connection with
the Transition Services, (ii) any breach of or inaccuracy in any
representation, warranty, covenant, obligation or agreement on the part of
Purchaser or any of the MGM Acquired Entities contained in this Agreement,
(iii) nonfulfillment of or failure to perform any covenant, obligation or
agreement on the part of Purchaser or any of the MGM Acquired Entities
contained in this Agreement and (iv) any direction or instruction provided
after the Closing by the management of Purchaser, GNLV or GNL to an MGM Group
employee providing Transition Services to GNLV or GNL, as the case may be, that
causes such MGM Group employee to take any action, or fail to take any action,
which results in any member of the MGM Group incurring Liability other than
amounts that would be reimbursable under the terms of this Agreement, but for
this Section 7(b)(iv).


 


(c)                                  Notwithstanding any other provision
of this Agreement, neither party shall be liable for lost profit, lost revenue
or any other form of indirect, incidental, special, consequential or punitive
damages, even if that party has been informed of the possibility of such
damages.


 


8.                                       Applicability
to other Persons.


 


(a)                                  Parent shall cause the members of
the MGM Group to comply with this Agreement and to perform their respective
obligations hereunder for the benefit of MGM Acquired Entities, and Parent
agrees that this Agreement shall be binding on the members of the MGM
Group.  From time to time after  consummation of the Closing, Parent may
change which member(s) of the MGM Group or independent contractor(s) provide
Transition Services hereunder; provided  that such change shall
not affect the MGM Group’s obligations to provide the Transition Services set
forth herein in the manner prescribed herein.


 


(b)                                 From and after the Closing,
Purchaser shall cause the MGM Acquired Entities to comply with this Agreement
and to perform their respective obligations hereunder for the benefit of the
MGM Group and Purchaser agrees that this Agreement shall be binding on the MGM
Acquired Entities.


 


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9.                                       MGM
Group Representations and Warranties.


 


(a)                                  Authority. 
Parent has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions that are contemplated by this
Agreement and to perform its obligations hereunder and to cause the members of
the MGM Group to perform their respective obligations hereunder.  The execution and delivery of this Agreement
by Parent and the performance by the MGM Group of their respective obligations
hereunder have been duly authorized by all necessary corporate action on the
part of the MGM Group.  No corporate or
other act or proceeding on the part of any member of the MGM Group, is
necessary to authorize, execute, deliver and perform their respective
obligations hereunder.  This Agreement
has been duly executed and delivered by Parent and, assuming this Agreement
constitutes the valid and binding obligation of Purchaser, constitutes the
valid and binding obligation of the MGM Group, enforceable against the MGM
Group in accordance with its terms.


 


(b)                                 No Conflict. 
The execution and delivery of this Agreement by Parent does not, and the
performance by the members of the MGM Group of their respective obligations
hereunder will not, (i) conflict with, or result in any violation or breach of,
any provision of the organizational and governing documents of each member of
the MGM Group, (ii) conflict with, result in a breach of, constitute a default
(or an event which with the giving of notice or lapse of time, or both, would
become a default) under, require any notice, consent, approval or waiver under,
or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, any Contract, permit or obligation to
which any member of the MGM Group is a party or by which any member of the MGM
Group or any of their respective assets or properties is bound or (iii)
conflict with or violate any Law or Governmental Order applicable to any member
of the MGM Group or any of their respective assets or properties.


 


(c)                                  Required Filings and Consents. 
Except for any Governmental Approvals related to, or arising out of,
compliance with Gaming Laws and Gaming Licenses, no Governmental Approval, or
consent, approval, authorization or action by, notice to, filing with, or
waiver from, any Person is required in connection with the execution and
delivery of this Agreement by Parent and the performance by the MGM Group of
their respective obligations hereunder that has not already been obtained by
Parent or on behalf of the MGM Group and, as so obtained, each is in full force
and effect and has not been modified or revoked.


 


10.                                 Purchaser
Representations and Warranties.


 


(a)                                  Authority. 
Purchaser has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions that are contemplated by this
Agreement and to perform its obligations hereunder.  The execution and delivery of this Agreement by Purchaser and the
performance by Purchaser of its obligations hereunder have been duly authorized
by all necessary corporate action on the part of Purchaser.  No corporate act or proceeding on the part
of Purchaser, is necessary to authorize, execute, deliver and perform its
obligations hereunder.  This Agreement
has been duly executed and delivered by Purchaser and, assuming this Agreement
constitutes the valid and binding obligation of the MGM Group,


 


10

















 


constitutes the valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms.


 


(b)                                 No Conflict. 
The execution and delivery of this Agreement by Purchaser does not, and
the performance by Purchaser of its obligations hereunder will not, (i)
conflict with, or result in any violation or breach of, any provision of the
Articles of Incorporation or Bylaws of Purchaser, (ii) conflict with, result in
a breach of, constitute a default (or an event which with the giving of notice
or lapse of time, or both, would become a default) under, require any notice,
consent, approval or waiver under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, any
Contract, permit or obligation to which Purchaser is a party or by which
Purchaser or any of its assets or properties is bound or (iii) conflict with or
violate any Law or Governmental Order applicable to Purchaser or any of its
assets or properties.


 


(c)                                  Required Filings and Consents. 
Except for (i) any Governmental Approvals related to, or arising out of,
compliance with Gaming Laws and Gaming Licenses and (ii) matters under the
Commitment Letter (as may be amended or replaced), no Governmental Approval, or
consent, approval, authorization or action by, notice to, filing with, or
waiver from, any Person is required in connection with the execution, delivery
and performance of this Agreement by Purchaser that has not already been
obtained by Purchaser and, as so obtained, each is in full force and effect and
has not been modified or revoked.


 


11.                                 General
Provisions.


 


11.1                           Notice of Breach. 
In the event of a material breach of this Agreement by a member of the
MGM Group, on the one hand, or Purchaser or any of the MGM Acquired Entities,
on the other hand, the Person claiming the breach shall give notice of such
breach in accordance with Section 11.2 hereof, which failing Person shall
have ten (10) calendar days to cure such breach, except as otherwise provided
in this Agreement or unless such breach is not capable of being cured within
such ten (10) day period.  In the event
of cure within such ten (10) day period, such notice of breach shall be deemed
rescinded.


 


11.2                           Notices. 
All notices, requests, demands and other communications made under or by
reason of the provisions of this Agreement shall be in writing and shall be
given by hand delivery, certified or registered mail, return receipt requested,
facsimile or next-Business Day courier to the affected party at the address and
facsimile number set forth below, except as otherwise required in the Schedules
attached hereto.  Such notices shall be
deemed given: at the time personally delivered, if delivered by hand with
receipt acknowledged; at the time received, if sent by certified or registered
mail; upon issuance by the transmitting machine of a confirmation slip that the
number of pages constituting the notice has been transmitted without error and
confirmed telephonically, if sent by facsimile; and the first Business Day
after timely delivery to the courier, if sent by next-Business Day courier
specifying next-Business Day delivery.


 


11

















 


	
   

  	
  (a)   if
  to a member of the MGM Group, to:

  
	
   

  	
   

  
	
   

  	
  MGM MIRAGE

  
	
   

  	
  3600 Las
  Vegas Boulevard South

  
	
   

  	
  Las Vegas,
  Nevada  89109

  
	
   

  	
  Attention:

  	
  James J. Murren,
  President,

  
	
   

  	
   

  	
  Chief
  Financial Officer and Treasurer

  
	
   

  	
   

  	
  Gary N.
  Jacobs, Executive Vice President,

  
	
   

  	
   

  	
  General
  Counsel and Secretary

  
	
   

  	
  Facsimile
  No.:  (702) 693-7628

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Christensen,
  Miller, Fink, Jacobs, Glaser,

  
	
   

  	
  Weil & Shapiro, LLP

  
	
   

  	
  10250
  Constellation Boulevard

  
	
   

  	
  Nineteenth
  Floor

  
	
   

  	
  Los Angeles,
  California  90067

  
	
   

  	
  Attention:  Janet McCloud, Esq.

  
	
   

  	
  Facsimile
  No.: (310) 556-2920

  
	
   

  	
   

  
	
   

  	
  (b)   if
  to Purchaser or an MGM Acquired Entity, to:

  
	
   

  	
   

  
	
   

  	
  Poster Financial Group, Inc.

  
	
   

  	
  129 East
  Fremont Street

  
	
   

  	
  Las Vegas,
  Nevada  89101

  
	
   

  	
  Attention:

  	
  Timothy
  Poster, Chairman

  
	
   

  	
   

  	
  and Chief
  Executive Officer

  
	
   

  	
   

  	
  Thomas
  Breitling, President, Treasurer and

  
	
   

  	
   

  	
  Secretary

  
	
   

  	
   

  	
  Joanne
  Beckett, Vice President, General Counsel

  
	
   

  	
   

  	
  and
  Secretary (with effect from and after

  
	
   

  	
   

  	
  consummation
  of the Closing)

  
	
   

  	
  Facsimile
  No.: (702) 382-9092

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Skadden, Arps, Slate, Meagher & Flom LLP

  
	
   

  	
  Four Times Square

  
	
   

  	
  New York, New York  10036-6522

  
	
   

  	
  Attention:

  	
  Wallace L.
  Schwartz, Esq. ,

  
	
   

  	
   

  	
  Howard L.
  Ellin, Esq.

  
	
   

  	
  Facsimile No.:  (212) 735-2000

  



 


12

















 


11.3                           Assignment; Successors and Assigns.


 


(a)                                  Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned by
any member of the MGM Group (whether by operation of Law or otherwise) without
the prior written consent of Purchaser, except that the foregoing shall not
prohibit the MGM Group from undertaking one or more internal corporate
reorganizations; provided  that any Person created or whose form
of existence is modified or changed as a result thereof shall be deemed to be a
member of the MGM Group for purposes of this Agreement and its predecessor (if
applicable) shall not be relieved from Liability hereunder without the written
consent of Purchaser, which consent will not be unreasonably withheld or
delayed.  Purchaser and the MGM Acquired
Entities acknowledge that the MGM Group may retain independent contractors to
assist in providing the Transition Services so long as the MGM Group exercises
the same degree of care in their selection and retention as the MGM Group uses
in selecting and retaining its own independent contractors.


 


(b)                                 Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned by
Purchaser, and, from after consummation of the Closing, the MGM Acquired
Entities (whether by operation of Law or otherwise), without the prior written consent
of Parent.


 


(c)                                  Any attempted assignment or
delegation in contravention hereof shall be null and void.  Subject to the provisions of this
Section 11.3, this Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties.


 


11.4                           No Third-Party Beneficiaries. 
Except for (a) Persons entitled to indemnification under Section 7,
(b) the MGM Acquired Entities and (c) the provisions of Section 11.19,
this Agreement is for the sole benefit of the parties and their permitted
successors and assigns and nothing herein expressed or implied shall give or be
construed to give to any Person, other than the parties and such permitted
successors and assigns, any legal or equitable rights hereunder.


 


11.5                           Remedies. 
Nothing contained herein shall be deemed to be a limitation on any
remedies that may be available to any party under the Purchase Agreement.


 


11.6                           Interpretation; Definitions. 
The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.  This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.  When a reference is made in
this Agreement to Sections, subsections, Schedules or Attachments, such
reference shall be to a Section or subsection of, or a
Schedule or Attachment to, this Agreement unless otherwise indicated.  Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.”  The
words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this
Agreement shall refer to this Agreement and not to any particular
Section or subsection in which such words appear.  References to “party” or “parties” are to
the parties to this Agreement and when the context requires “party” or
“parties” shall also refer to members of the MGM Group and the MGM Acquired
Entities.  The use of any forms of
orders, acknowledgments or


 


13

















 


invoices to document transactions under this Agreement shall be for the
convenience of the parties and no such form shall be deemed to amend, supersede,
supplement or waive any of the terms or conditions of this Agreement.  No waiver of any term, provision or
condition of or failure to exercise or delay in exercising any rights or
remedies under this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term,
provision, condition, right or remedy or as a waiver of any other term,
provision, condition, right or remedy of this Agreement.  Any consent given by any party pursuant to
this Agreement shall be valid only if contained in a written instrument signed
by such party.  Nothing in this
Agreement shall be construed as an assignment or license of any intellectual or
other property right of any party.  The
terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa.  Except as
otherwise noted in this Agreement, capitalized terms used but not defined in
this Agreement shall have the meanings ascribed thereto in the Purchase
Agreement.


 


11.7                           Time of the Essence. 
Time is of the essence in performing the obligations under this
Agreement.


 


11.8                           Amendments. 
This Agreement may not be amended or modified by the parties except by
an instrument in writing signed by each of the parties.


 


11.9                           Counterparts. 
This Agreement may be executed in two or more counterparts, including
facsimile counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.


 


11.10                     Severability. 
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not effected in any manner materially adverse to the MGM Group, taken
as a whole, on the one hand, and Purchaser and the MGM Acquired Entities, taken
as a whole, on the other hand.  Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall cooperate and negotiate in good
faith and use Commercially Reasonable Efforts in order to come to an agreement
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest
extent possible.


 


11.11                     Governing Law. 
This Agreement shall be governed and construed in accordance with the
Laws applicable to contracts made and to be performed entirely in the State of
Nevada, without regard to any applicable conflicts of Law, except to the extent
the mandatory provisions of the Gaming Laws apply.


 


11.12                     Consent to Jurisdiction and Venue. 
The parties irrevocably submit to the exclusive jurisdiction of the
United States District Court for the District of Nevada or any court of the
State of Nevada located in Clark County in any action, suit or proceeding
arising out of or relating to this Agreement or any of the transactions
contemplated hereby, and agrees that any such action, suit or proceeding shall
be brought only in such a Nevada court; provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 11.12 and


 


14

















 


shall not be deemed to be a general submission to the jurisdiction of
said courts or in the State of Nevada other than for such purpose.  Each of the parties hereby irrevocably
waives, to the fullest extent permitted by Law, any objection that it may now
or hereafter have to the laying of the venue of any such action, suit or
proceeding brought in such a Nevada court. 
Each of the parties further irrevocably waives and agrees not to plead
or claim that any such action, suit or proceeding brought in such a Nevada
court has been brought in an inconvenient forum.


 


11.13                     Confidentiality Covenants.


 


(a)                                  Obligations. 
The MGM Group, on the one hand, and Purchaser and from and after
consummation of the Closing, the MGM Acquired Entities, on the other hand,
shall keep confidential and shall not cause or permit the disclosure to any
third party of any confidential information disclosed by any of such Persons
pursuant to this Agreement.  The MGM
Group shall disclose Purchaser’s and from and after consummation of the
Closing, the MGM Acquired Entities’ confidential information only to those
Persons who require such information for the purpose of performing the
Transition Services (and who agree to keep such information confidential and
not to disclose or permit the disclosure to any third party of any confidential
information with such agreement made to and for the benefit of Purchaser and
the MGM Acquired Entities) and shall use such information solely for the
purpose of performing their respective obligations under this Agreement.  The parties are not required to mark or
otherwise designate information as “confidential information” or “confidential”
in order to receive the benefits of this Section 11.13(a).  Confidential information may include
business plans, financial information, operational information, formulas,
production processes, Lists, research, marketing and sales information.  Said confidentiality requirement shall not
apply to any information that (i) has entered into the public domain through no
wrongful act or breach of any obligation of confidentiality on the receiving
party’s or any third party’s part, (ii) was in the lawful knowledge and
possession of, or was independently developed by, the receiving party prior to
the time it was disclosed to, or learned by, the receiving party as evidenced
by written records kept in the ordinary course of business by the receiving
party, (iii) was rightfully received from a third party not in violation of any
contractual, legal or fiduciary obligation of such third party or (iv) was
approved for release by written authorization by the party having the sole
right to publicly disseminate such information.


 


(b)                                 Compelled Disclosure. 
In the event that a party is required by Law, court order or stock
exchange or quotation rules to disclose any confidential information of the
other party, that party shall (i) notify the other party in writing as soon as
possible, unless it is otherwise affirmatively prohibited by Law, court order
or stock exchange or quotation rules from notifying the other party, (ii)
cooperate with the other party to preserve the confidentiality of such
confidential information consistent with applicable Law, court order or stock
exchange or quotation rules and (iii) use its Commercially Reasonable Efforts
to limit any such disclosure to the minimum disclosure necessary to comply with
such Law, court order or stock exchange or quotation rules.


 


(c)                                  Confidential Treatment Request. 
The parties agree to cooperate and use their respective Commercially
Reasonable Efforts in obtaining “confidential treatment” for any filings
(including exhibits thereto) to be made under the rules and regulations of the
Securities and Exchange Commission, including under the Securities Act of 1933,
as amended,


 


15

















 


and the Securities Exchange Act of 1934, as amended, that would
otherwise contain or reference information describing the detailed services making
up each Transition Service and associated pricing, service level and service
credit information contained in this Agreement.  The scope of the “confidential treatment” request would be
limited to information describing the detailed services making up each
Transition Service and associated pricing, service level and service credit
information contained in this Agreement.


 


11.14                     Entire Agreement. 
This Agreement together with the Schedules and Attachments annexed
hereto contain the entire agreement and understanding among the parties with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written or oral, among the parties with respect to the
subject matter hereof.  All the
Schedules and Attachments annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein.  All references to this
Agreement shall be construed to mean the Agreement together with the Schedules
and Attachments annexed hereto.  In the
event of any conflict or inconsistency between the provisions of this Agreement
(without considering the Schedules and Attachments annexed hereto solely for
purposes of this sentence) and the provisions of the Schedules and Attachments
annexed hereto, the provisions of the Schedules and Attachments annexed hereto
shall govern and control.  In the event
of any conflict or inconsistency between the provisions of this Agreement and
the provisions of the Purchase Agreement (including Schedule 5.17 to the Purchase
Agreement), the provisions of this Agreement shall govern and control.


 


11.15                     Relationship of the Parties. 
In carrying out its obligations under this Agreement, each member of the
MGM Group is acting independently and as an independent contractor with full
power, authority and responsibility to select the means, methods and manner of
performance of the Transition Services. 
The member of the MGM Group providing Transition Services to the MGM
Acquired Entities shall make all staffing decisions and be solely responsible
for the payment of compensation and benefits to its employees and independent
contractors and payments or withholdings to Governmental Authorities relating
to its employees and independent contractors. 
The immediately preceding sentence shall not affect the obligations of
GNLV and GNL to reimburse the MGM Group for MGM Group employee-related expenses
relating to Transition Services as specifically provided for in this
Agreement.  Nothing in this Agreement is
intended or shall be deemed to constitute a partnership or joint venture
relationship among the parties.  No
party shall have the authority to contract for or assume obligations of any
kind in the name of any other party without that other party’s prior written
consent.


 


11.16                     Further Assurances. 
In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties will use its Commercially Reasonable Efforts to
(a) execute and deliver, or cause the execution and delivery of, such further
instruments and documents and take, or cause to be taken, such other actions as
any other party may reasonably request in order to effectuate the purposes of
this Agreement and to carry out the terms hereof and (b) take, or cause to be
taken, all actions, and do, or cause to be done, all things, reasonably
necessary, proper or advisable under applicable Laws and agreements or
otherwise to provide the Transition Services.


 


16

















 


11.17                     Specific Performance. 
The parties agree that if any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached,
irreparable damage would occur, no adequate remedy at Law would exist, and
damages would be difficult to determine, and that the parties shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at
Law or equity, without the requirement of the posting of any bond or security.


 


11.18                     Property Rights. 
Except as otherwise contemplated by this Agreement, any books, records,
data, files, software, input materials or other information owned by any member
of the MGM Group, on the one hand, or Purchaser or any of the MGM Acquired
Entities, on the other hand, that is provided to another Person pursuant to
this Agreement shall be deemed to remain the property of the Person providing
the same.


 


11.19                     Limitation of Liability. 
The parties acknowledge that neither Kirk Kerkorian nor Tracinda
Corporation, individually or collectively, is a party to this Agreement.  The parties further acknowledge that neither
Mr. Kerkorian nor Tracinda Corporation shall have any Liability whatsoever with
respect to this Agreement.  Accordingly,
the parties hereby agree that in the event (a) there is any alleged breach or default
or breach or default by any party under this Agreement or (b) any party has or
may have any claim arising from or relating to the terms of this Agreement, no
party shall commence any proceedings or otherwise seek to impose any Liability
whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such
alleged breach, default or claim.


 


(The remainder of this page is
intentionally left blank.)


 


17

















 


IN WITNESS WHEREOF, an authorized representative of each of the parties
has duly executed this Agreement as of the date first written above.


 


	
   

  	
  MGM MIRAGE

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ BRYAN L. WRIGHT

  	
   

  	 

	
   

  	
   

  	
  Name:

  	
  Bryan L. Wright

  	 

	
   

  	
   

  	
  Title: 

  	
  Vice President – Assistant General Counsel

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  POSTER FINANCIAL GROUP, INC.

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ TIMOTHY POSTER

  
	
   

  	
   

  	
  Name: 

  	
  Timothy Poster

  	 

	
   

  	
   

  	
  Title: 

  	
  Chairman and Chief Executive Officer

  	 

						



 


[Signature Page to Transition Services Agreement]


 


 


18