exv10w6






Exhibit 10.6




     Execution Version



	 	 	 

	 

	 	April 16, 2010
	 
	 	 
	To:

	 	MGM MIRAGE
	 

	 	3600 Las Vegas Boulevard South
	 

	 	Las Vegas, NV 89109
	 

	 	Attn: Daniel D’Arrigo, Executive Vice President and Chief Financial Officer
	 

	 	Telephone: 702-693-8895
	 

	 	Facsimile: 702-693-7682
	 
	 	 
	From:

	 	Barclays Bank PLC, 5 The North Colonnade
	 

	 	Canary Wharf, London E14 4BB
	 

	 	Facsimile:+44(20)77736461
	 

	 	Telephone: +44 (20) 777 36810
	 

	 	
c/o Barclays Capital Inc.
	 

	 	as Agent for Barclays Bank PLC
	 

	 	745 Seventh Ave
	 

	 	New York, NY 10166
	 

	 	Telephone: +1 212 412 4000
	 
	 	 
	Re:

	 	Additional Capped Call Transaction





Ladies and Gentlemen:




     The purpose of this communication (this “Confirmation”) is to set forth the terms and
conditions of the above-referenced transaction entered into on the Trade Date specified below (the
“Transaction”) between Barclays Bank PLC (“Dealer”), through its agent Barclays Capital Inc. (the
“Agent”), and MGM MIRAGE (“Counterparty”). This communication constitutes a “Confirmation” as
referred to in the ISDA Master Agreement specified below.



     1. This Confirmation is subject to, and incorporates, the definitions and provisions of the
2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA
Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions,
the “Definitions”), in each case as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the
Equity Definitions, the Equity Definitions will govern. Certain defined terms used herein have the
meanings assigned to them in the Offering Memorandum dated April 15, 2010 (the “Offering
Memorandum”) and the Indenture to be dated as of the closing date for the initial issuance of the
Convertible Securities described below between Counterparty, the Guarantors party thereto (the
“Guarantors”) and U.S. Bank National Association as trustee (the “Indenture”) relating to the USD
1,000,000,000 principal amount of 4.25% convertible senior notes due 2015 and the additional USD
150,000,000 principal amount of 4.25% convertible senior notes due 2015 issued pursuant to the
over-allotment option exercised on the date hereof (the “Convertible Securities”). In the event of
any inconsistency between the terms defined in the Indenture and this Confirmation, this
Confirmation shall govern. For the avoidance of doubt, references herein to sections of the
Indenture are based on the description of the Convertible Securities set forth in the Offering
Memorandum. If any relevant sections of the Indenture differ in any material respect from those
described in the Offering Memorandum, the parties will amend this Confirmation in good faith to
preserve the economic intent of the parties based on the description of the Convertible Securities
set forth in the Offering Memorandum. The parties further acknowledge that references to the
Indenture herein are references to the Indenture as in effect on the date of its execution and if
the Indenture is amended following its execution, any such amendment will be disregarded for
purposes of this Confirmation (other than as provided in Section 8(a) below) unless the parties
agree otherwise in writing.



     This Confirmation evidences a complete and binding agreement between Dealer and Counterparty
as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be
subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement (the “ISDA
Form”) as if Dealer and Counterparty had executed an agreement in such form (without any Schedule
but with the elections set forth in this Confirmation). For the avoidance of doubt, the
Transaction shall be the only transaction under the Agreement.




 









 





     All provisions contained in, or incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of any inconsistency between this
Confirmation and either the
Definitions or the Agreement, this Confirmation shall govern.



     2. The Transaction constitutes a Share Option Transaction for purposes of the Equity
Definitions. The terms of the particular Transaction to which this Confirmation relates are as
follows:



	 	 	 

	General Terms:
	 	 
	 
	 	 
	Trade Date:

	 	April 16, 2010
	 
	 	 
	Effective Date:

	 	The closing date of the initial issuance of the
Convertible Securities.
	 
	 	 
	Option Type:

	 	Call
	 
	 	 
	Seller:

	 	Dealer
	 
	 	 
	Buyer:

	 	Counterparty
	 
	 	 
	Shares:

	 	The common stock of
Counterparty, par value
USD0.01 per share (Ticker
Symbol: “MGM”).
	 
	 	 
	Number of Options:

	 	The number of Option Notes (as
defined in the Purchase
Agreement (as defined below))
in denominations of USD1,000
principal amount issued by
Counterparty to the Initial
Purchasers (as defined below),
pursuant to the option under
Section 2(b) of the Purchase
Agreement (as defined below).
	 
	 	 
	Number of Shares:

	 	As of any date, the product of
the Number of Options, the
Conversion Rate and the
Applicable Percentage.
	 
	 	 
	Applicable Percentage:

	 	40%
	 
	 	 
	Conversion Rate:

	 	As of any date, the
“Conversion Rate” (as defined
in the Indenture as described
in the Offering Memorandum
under “Description of Notes —
General”) as of such date but
without regard to any
adjustments to the “Conversion
Rate” pursuant to (i) the
section of the Indenture
containing the provision
described in the Offering
Memorandum under “Description
of Notes — Conversion Rights
— Adjustment to Shares
Delivered upon Conversion upon
Certain Corporate
Transactions” (a “Make-Whole
Fundamental Change
Adjustment”) or (ii) the
section of the Indenture
containing the provisions
described in the first two
sentences of the fifth to last
paragraph in the Offering
Memorandum under “Description
of Notes — Conversion Rights
— Conversion Rate
Adjustments” (i.e., the
paragraph beginning “We are
permitted to increase the
applicable conversion
rate...”) (a “Discretionary
Adjustment” and, together with
Make-Whole Fundamental Change
Adjustments, the “Excluded
Adjustments”).
	 
	 	 
	Strike Price:

	 	The “Conversion Price” (as
defined in the Indenture as
described in the Offering
Memorandum under “Description
of Notes — General”, but
without regard to any
adjustments to the “Conversion
Rate” pursuant to any Excluded
Adjustments).
	 
	 	 
	Cap Price:

	 	USD 21.8550
	 
	 	 
	Premium:

	 	USD 4,251,000
	 
	 	 
	Premium Payment Date:

	 	The Effective Date
















 






	 	 	 

	Exchange:

	 	New York Stock Exchange
	 
	 	 
	Related Exchange:

	 	All Exchanges
	 
	 	 
	Procedures for Exercise:
	 	 
	 
	 	 
	Exercise Dates:

	 	Each Conversion Date.
	 
	 	 
	Conversion Date:

	 	Each “Conversion Date”, as
defined in the Indenture as
described in the Offering
Memorandum under “Description
of Notes — Conversion Rights
— General”, occurring during
the period from and excluding
the Trade Date to and
including the Expiration Date,
for Convertible Securities,
each in denominations of
USD1,000 principal amount,
that are submitted for
conversion on such Conversion
Date in accordance with the
terms of the Indenture
(excluding Convertible
Securities that are Excluded
Convertible Securities
hereunder or “Excluded
Convertible Securities” under
the Base Convertible Capped
Call Transaction Confirmation
(as defined below)) but are
not “Relevant Convertible
Securities” under, and as
defined in, the confirmation
between the parties hereto
regarding the Base Convertible
Capped Call Transaction dated
April 15, 2010 (the “Base
Convertible Capped Call
Transaction Confirmation”)
(such Convertible Securities,
the “Relevant Convertible
Securities” for such
Conversion Date). For the
purposes of determining
whether any Convertible
Securities will be Relevant
Convertible Securities
hereunder or under the Base
Convertible Capped Call
Transaction Confirmation,
Convertible Securities that
are converted pursuant to the
Indenture shall be allocated
first to the Base Convertible
Capped Call Transaction
Confirmation until all Options
thereunder are exercised or
terminated.
	 
	 	 
	Required Exercise on 

Conversion Dates:

	 	On each Conversion Date, a
number of Options equal to the
number of Relevant Convertible
Securities for such Conversion
Date in denominations of
USD1,000 principal amount
shall be automatically
exercised.
	 
	 	 
	Excluded Convertible Securities:

	 	Convertible Securities
surrendered for conversion on
any date prior to December 12,
2014 that are not “Excluded
Convertible Securities” under,
and as defined in, the Base
Convertible Capped Call
Transaction Confirmation. For
purposes of determining
whether any Convertible
Securities will be Excluded
Convertible Securities
hereunder or under the Base
Convertible Capped Call
Transaction Confirmation,
Convertible Securities that
are converted prior to such
date shall be allocated first
to the Base Convertible Capped
Call Transaction Confirmation
until all Options thereunder
are exercised or terminated.
Counterparty shall, within
three Scheduled Trading Days
of the “Conversion Date”
relating to any Excluded
Convertible Securities,
provide written notice to
Dealer specifying the number
of Excluded Convertible
Securities converted on such
“Conversion Date”.
	 
	 	 
	Expiration Date:

	 	The second Scheduled Trading
Day immediately preceding the
“Maturity Date” (as defined in
the Indenture as described in
the Offering Memorandum under
“Description of Notes —
General”).
	 
	 	 
	Automatic Exercise:

	 	As provided above under
“Required Exercise on
Conversion Dates”.
















 






	 	 	 

	 
	 	 
	Exercise Notice Deadline:

	 	In respect of any exercise of
Options hereunder on any
Conversion Date, the Exchange
Business Day immediately
following such Conversion
Date; provided that, in
respect of any exercise of
Options hereunder on any
Conversion Date occurring on
or after December 12, 2014,
the Exercise Notice Deadline
shall be the Scheduled Trading
Day immediately following the
Expiration Date.
	 
	 	 
	Notice of Exercise:

	 	Notwithstanding anything to
the contrary in the Equity
Definitions, Dealer shall have
no obligation to make any
payment or delivery in respect
of any exercise of Options
hereunder unless Counterparty
notifies Dealer in writing
prior to 4:00 PM (New York
City time) on the Exercise
Notice Deadline in respect of
such exercise of the number of
Options being exercised on the
relevant Exercise Date;
provided that any “Notice of
Exercise” delivered to Dealer
pursuant to the Base
Convertible Capped Call
Transaction Confirmation shall
be deemed to be a Notice of
Exercise pursuant to this
Confirmation and the terms of
such Notice of Exercise shall
apply, mutatis mutandis, to
this Confirmation. For the
avoidance of doubt, if
Counterparty fails to give
such notice when due in
respect of any exercise of
Options hereunder, Dealer’s
obligation to make any payment
or delivery in respect of such
exercise shall be permanently
extinguished, and late notice
shall not cure such failure.
	 
	 	 
	Dealer’s Telephone Number
and Telex and/or Facsimile Number
	 	 
	and Contact Details for purpose of
Giving Notice:

	 	To be provided by Dealer.
	 
	 	 
	Settlement Terms:
	 	 
	 
	 	 
	Settlement Date:

	 	In respect of any Exercise
Date, the date two Clearance
System Business Days following
the Expiration Date.
	 
	 	 
	Delivery Obligation:

	 	In lieu of the obligations set
forth in Sections 8.1 and 9.1
of the Equity Definitions, and
subject to “Notice of
Exercise” above, in respect of
any Exercise Date, Dealer will
deliver to Counterparty, on
the related Settlement Date,
(i) the Net Share Settlement
Amount for such Exercise Date
and (ii) cash in lieu of any
fractional Shares to be
delivered with respect to such
Net Share Settlement Amount
valued at the VWAP Price on
the last Valuation Date.
	 
	 	 
	Net Share Settlement Amount:

	 	For any Exercise Date, a
number of Shares equal to the
product of (i) the Applicable
Percentage, (ii) the sum of
the Daily Settlement Amounts
for all Valuation Dates and
(iii) the Number of Options
exercised on such Exercise
Date; provided that in no
event shall the Net Share
Settlement Amount exceed the
product of the Applicable
Percentage and the excess, if
any, of (A) the aggregate
number of Shares that
Counterparty is obligated to
deliver to the holder(s) of
the Relevant Convertible
Securities for the Conversion
Date occurring on such
Exercise Date (the
“Convertible Obligation”) over
(B) the product of (I) the
Number of Options exercised on
such Exercise Date and (II)
USD1,000 divided by the
opening price of the Shares as
displayed under the heading
“Op” on Bloomberg page MGM.N
<equity> (or any
successor thereto) on the
settlement date for the Shares
to be delivered under the



















 






	 	 	 

	 

	 	
Relevant Convertible
Securities related to such
Exercise Date under the terms
of the Indenture. If such
Exercise Date relates to the
conversion of Relevant
Convertible Securities in
connection with which holders
thereof are entitled to
receive additional Shares
and/or cash pursuant to a
Make-Whole Fundamental Change
Adjustment, then,
notwithstanding the foregoing,
the Net Share Settlement
Amount shall include the
Applicable Percentage of such
additional Shares and/or cash,
except that the Net Share
Settlement Amount shall be
capped so that the value of
the Net Share Settlement
Amount (with the value of the
Shares included in the Net
Share Settlement Amount
determined by the Calculation
Agent using the VWAP Price on
the last Valuation Date) does
not exceed the amount as
determined by the Calculation
Agent that would be payable by
Dealer pursuant to Section 6
of the Agreement if such
Conversion Date were an Early
Termination Date resulting
from an Additional Termination
Event with respect to which
the Transaction (except that,
for purposes of determining
such amount (aa) the Number of
Options shall be deemed to be
equal to the number of Options
exercised on such Exercise
Date and (bb) such amount
payable will be determined as
if the sections of the
Indenture containing the
provisions relating to
Make-Whole Fundamental Change
Adjustments were deleted) was
the sole Affected Transaction
and Counterparty was the sole
Affected Party (determined
without regard to Section 8(b)
of this Confirmation) (this
sentence, as it relates to an
increase in the Net Share
Settlement Amount relating to
a Make-Whole Fundamental Change Adjustment (subject to
the cumulative limitations
herein), the “Limited
Make-Whole Provision”), it
being understood that the cap
described in this sentence is
in addition to, and cumulative
with the proviso in the
preceding sentence.
	 
	 	 
	Valuation Dates:

	 	Each of the 75 consecutive
Exchange Business Days
commencing on and including
December 12, 2014; provided
that if any such day is a
Disrupted Day, then the
Calculation Agent shall
determine if such day is a
Disrupted Day in whole or in
part, and if such day is a
Disrupted Day in whole, such
day shall not be considered an
Exchange Business Day for
purposes of determining the
Valuation Dates, and if such
day is a Disrupted Day in
part, then (i) such day shall
be a Valuation Date and the
Exchange Business Day
immediately following the last
scheduled Valuation Date
(including any additional
Valuation Date added pursuant
to this clause (i)) shall also
be a Valuation Date, (ii) the
VWAP Price for such Disrupted
Day shall be determined by the
Calculation Agent based on
transactions in the Shares on
such Disrupted Day taking into
account the nature and
duration of such Market
Disruption Event on such day
and (iii) the Calculation
Agent shall adjust the Daily
Settlement Amounts as
appropriate to take into
account the nature and
duration of such Market
Disruption Event; and provided
further that, without
limitation of Section 8(h)
below, if the final Valuation
Date has not occurred as of
the Expiration Date, the
Expiration Date shall be the
final Valuation Date, in which
case the VWAP Price for such
Valuation Date shall be the
prevailing market value per
share determined by the
Calculation Agent in a
commercially reasonable manner
and, if the total number of
Valuation Dates that have
occurred prior to the
Expiration Date


















 






	 	 	 

	

	 	
(each such
Valuation Date, a “Past
Valuation Date”) is less than
74, then a number of Valuation
Dates equal to 75 minus the
number of Past Valuation Dates
shall be deemed to occur on
the Expiration Date (subject
to adjustment by the
Calculation Agent if any Past
Valuation Date was a Disrupted
Day in part). Any day on
which the Exchange is
scheduled to close prior to
its normal closing time shall
be considered a Disrupted Day
in whole. Section 6.6 of the
Equity Definitions shall not
apply to any Valuation Date.
	 
	 	 
	Settlement Averaging Period:

	 	The period beginning on, and
including, the first Valuation
Date and ending on, and
including, the last Valuation
Date.
	 
	 	 
	Daily Settlement Amount:

	 	For any Valuation Date, (i)
the amount, if any, by which
(x) the Daily Value for such
Valuation Date exceeds (y)
USD1,000 divided by 75,
divided by (ii) the VWAP Price
on such Valuation Date.
	 
	 	 
	Daily Value:

	 	For any Valuation Date, (i)
the product of (x) the
Conversion Rate and (y) the
lesser of (A) the VWAP Price
and (B) the Cap Price, in each
case on such Valuation Date
divided by (ii) 75.
	 
	 	 
	VWAP Price:

	 	For any Valuation Date, the
per Share volume-weighted
average price as displayed
under the heading “Bloomberg
VWAP” on Bloomberg page MGM.N
<equity> VAP (or any
successor thereto) in respect
of the period from 9:30 a.m.
to 4:00 p.m. (New
	 

	 	York City
time) on such Valuation Date
(or if such volume-weighted
average price is unavailable
or is manifestly incorrect,
the market value of one Share
on such Valuation Date, as
determined by the Calculation
Agent using a volume-weighted
method).
	 
	 	 
	Market Disruption Events:

	 	Section 6.3(a) of the Equity
Definitions is hereby amended
(A) by deleting the words
“during the one hour period
that ends at the relevant
Valuation Time, Latest
Exercise Time, Knock-in
Valuation Time or Knock-out
Valuation Time, as the case
may be” in clause (ii)
thereof. Section 6.3(d) of
the Equity Definitions is
hereby amended by deleting the
remainder of the provision
following the term “Scheduled
Closing Time” in the fourth
line thereof.
	 
	 	 
	Other Applicable Provisions:

	 	To the extent Dealer is
obligated to deliver Shares
hereunder, the provisions of
Sections 9.1(c), 9.8, 9.9,
9.10, 9.11 (except that the
Representation and Agreement
contained in Section 9.11 of
the Equity Definitions shall
be modified by excluding any
representations therein
relating to restrictions,
obligations, limitations or
requirements under applicable
securities laws arising as a
result of the fact that
Counterparty is the Issuer of
the Shares) and 9.12 of the
Equity Definitions will be
applicable as if “Physical
Settlement” applied to the
Transaction.
	 
	 	 
	Restricted Certificated Shares:

	 	Notwithstanding anything to
the contrary in the Equity
Definitions, Dealer may, in
whole or in part, deliver
Shares required to be
delivered to Counterparty
hereunder in certificated form
in lieu of delivery through
the Clearance System. With
respect to such certificated
Shares, the Representation and
Agreement contained in

















 






	 	 	 

	

	 	
Section
9.11 of the Equity Definitions
shall be modified by deleting
the remainder of the provision
after the word “encumbrance”
in the fourth line thereof.
	 
	 	 
	Share Adjustments:
	 	 
	 
	 	 
	Method of Adjustment:

	 	Notwithstanding Section 11.2
of the Equity Definitions,
upon the occurrence of any
event or condition set forth
in the section of the
Indenture containing the
provisions described in the
Offering Memorandum under
“Description of Notes —
Conversion Rights —
Conversion Rate Adjustments”
(other than a Merger Event or
an event described in clauses
1 or 2 of the definition of
“Fundamental Change” in the
Indenture as described in the
Offering Memorandum under
“Description of Notes —
Conversion Rights —
Adjustment to Shares Delivered
upon Conversion upon Certain
Corporate Transactions”) that
results in an adjustment under
the Indenture, the Calculation
Agent (i) shall, except in the
case of a Discretionary
Adjustment, make a
corresponding adjustment to
the terms relevant to the
exercise, settlement or
payment of the Transaction and
(ii) may adjust the Cap Price
as appropriate to account for
the economic effect on the
Transaction of such event or
condition; provided that the
Cap Price shall not be
adjusted so that it is less
than the Strike Price.
Promptly upon the occurrence
of any event that Counterparty
reasonably expects to result
in an adjustment to the
“Conversion Rate”,
Counterparty shall notify the
Calculation Agent of such
event; and once the
adjustments to be made to the
terms of the Indenture and the
Convertible Securities
in respect of such event have
been determined, Counterparty
shall promptly notify the
Calculation Agent in writing
of the details of such
adjustments.
	Extraordinary Events:
	 	 
	 
	 	 
	Merger Events:

	 	Notwithstanding Section
12.1(b) of the Equity
Definitions, a “Merger Event”
means the occurrence of any
event or condition set forth
in the section of the
Indenture containing the
provisions described in the
Offering Memorandum under the
seventh-to-last paragraph in
“Description of Notes —
Conversion Rights —
Conversion Rate Adjustments”
(i.e., the paragraph beginning
with “In the event of: any
reclassification...”).
	 
	 	 
	Consequences of Merger Events
or Tender Offers:

	 	Notwithstanding Sections 12.2
and 12.3 of the Equity
Definitions, upon the
occurrence of a Merger Event
that results in an adjustment
under the Indenture or an
event described in clauses 1
or 2 of the definition of
“Fundamental Change” therein,
(i) the Calculation Agent
shall make a corresponding
adjustment to the terms
relevant to the exercise,
settlement or payment of the
Transaction; provided that
such adjustment shall be made
without regard to any Excluded
Adjustments; and provided
further that if, with respect
to a Merger Event, the
consideration for the Shares
includes (or, at the option of
a holder of Shares, may
include) shares (or depositary
receipts with respect to
shares) of an entity or person
not organized under the laws
of the United States, any
State thereof or the District
of Columbia, and the
Calculation Agent determines
that (x) treating such Shares
as “Reference Property” (as
such term is defined in the
Indenture as described in the
Offering Memorandum under the
seventh to last paragraph in




















 






	 	 	 

	


	 	


“Description of Notes —
Conversion Rights —
Conversion Rate Adjustments”)
will have a material adverse
effect on Dealer’s rights or
obligations in respect of the
Transaction, on its Hedging
Activities in respect of the
Transaction or on the costs
(including, without
limitation, due to any
increase in tax liability,
decrease in tax benefit or
other adverse effect on its
tax position) of engaging in
any of the foregoing and (y)
Dealer cannot promptly avoid
the occurrence of each such
material adverse effect by (I)
transferring or assigning its
rights and obligations under
this Confirmation and the
Agreement pursuant to Section
8(f) or (II) amending the
terms of this Confirmation
(whether because amendments
would not avoid such
occurrence or because
Counterparty fails to agree
promptly to such amendments),
no such adjustment shall be
made and Cancellation and
Payment (Calculation Agent
Determination) shall apply;
and (ii) the Calculation Agent
may adjust the Cap Price as
appropriate to account for the
economic effect on the
Transaction of such Merger
Event or other event described
above; provided that the Cap
Price shall not be adjusted so
that it is less than the
Strike Price.
	 
	 	 
	Notice of Merger Consideration:

	 	Upon the occurrence of a
Merger Event that causes the
Shares to be converted into
the right to receive more than
a single type of consideration
(determined based in part upon
any form of stockholder
election), Counterparty shall
reasonably promptly (but, in
any event prior to the
effective date of the relevant
Merger Event) notify the
Calculation Agent of (i) the
weighted average of the types
and amounts of consideration
received by the holders of
Shares entitled to receive
cash, securities or other
property or assets with
respect to or in exchange for
such Shares in any Merger
Event who affirmatively make
such an election and (ii) the
details of the adjustment to
be made under the Indenture in
respect of such Merger Event.
	 
	 	 
	Nationalization, Insolvency 

or Delisting:

	 	Cancellation and Payment
(Calculation Agent
Determination); provided that,
in addition to the provisions
of Section 12.6(a)(iii) of the
Equity Definitions, it shall
also constitute a Delisting if
the Exchange is located in the
United States and the Shares
are not immediately re-listed,
re-traded or re-quoted on any
of the New York Stock
Exchange, The NASDAQ Global
Select Market or The NASDAQ
Global Market (or their
respective successors); if the
Shares are immediately
re-listed, re-traded or
re-quoted on any such exchange
or quotation system, such
exchange or quotation system
shall thereafter be deemed to
be the Exchange.
	 
	 	 
	Additional Disruption Events:
	 	 
	 
	 	 
	(a)   Change in Law:

	 	Applicable
	 
	 	 
	(b)   Failure to Deliver:

	 	Applicable
	 
	 	 
	(c)   Insolvency Filing:

	 	Applicable
	 
	 	 
	(d)   Hedging Disruption:

	 	Applicable
	 
	 	 
	(e)   Increased Cost of Hedging:

	 	Applicable
	 
	 	 
	Hedging Party:

	 	For all applicable
Extraordinary Events, Dealer
	 
	 	 
	Determining Party:

	 	For all applicable
Extraordinary Events, Dealer
	 
	 	 






8









 






	 	 	 

	Non-Reliance:

	 	Applicable
	 
	 	 
	Agreements
and Acknowledgments

Regarding Hedging Activities:

	 	Applicable
	 
	 	 
	Additional Acknowledgments:

	 	Applicable
	 
	 	 
	3.   Calculation Agent:

	 	Dealer. Following
any determination
or calculation by
the Calculation
Agent hereunder,
upon a written
request by
Counterparty, the
Calculation Agent
will use its
reasonable best
efforts to promptly
(but in any event
within three
Scheduled Trading
Days) provide to
Counterparty, by
e-mail to the
e-mail address
provided by
Counterparty in
such written
request, a report
(in a commonly used
file format for the
storage and
manipulation of
financial data
without disclosing
Dealer’s
proprietary models)
displaying in
reasonable detail
the basis for such
determination or
calculation, as the
case may be.
	 
	 	 
	4.   Account Details:
	 	 
	 
	 	 
	Dealer Payment Instructions:

	 	Barclays Bank plc NY
	 

	 	ABA# 026 00 2574
	 

	 	BIC: BARCUS33
	 

	 	Acct: 50038524
	 

	 	Beneficiary: BARCGB33
	 

	 	Ref: Barclays Bank plc London
Equity Derivatives
	 
	 	 
	Counterparty Payment Instructions:

	 	To be provided by Counterparty.










	5.	 	Offices:
	 
	 	 	The Office of Dealer for the Transaction is: London






	 	 	 	Barclays Bank PLC

5 The North Colonnade

Canary Wharf

London E14 4BB

Facsimile:       +44 (20) 777 36461

Telephone:    +44 (20) 777 36810







	 	 	The Office of Counterparty for the Transaction is: Not applicable
	 
	6.	 	Notices: For purposes of this Confirmation:
	 
	 	 	Address for notices or communications to Counterparty:






	 	To:	 	 MGM MIRAGE

3600 Las Vegas Boulevard South

Las Vegas, NV 89109
	 
	 	Attn:	 	 Daniel D’Arrigo, Executive Vice President and Chief Financial Officer
	 
	 	Telephone:	 	 702-693-8895
	 
	 	Facsimile:	 	 702-693-7682






	 	 	Address for notices or communications to Dealer:






	 	To:	 	 Barclays Bank PLC

c/o Barclays Capital Inc.

745 Seventh Ave.

New York, NY 10019
	 
	 	Attn:	 	 Paul Robinson
	 
	 	Telephone:	 	 (+1) 212-526-0111
	 
	 	Facsimile:	 	 (+1) 917-522-0458















 





 
	7.	 	Representations, Warranties and Agreements:





     (a) In addition to the representations and warranties in the Agreement and those
contained elsewhere herein, Counterparty represents and warrants to and for the benefit of,
and agrees with, Dealer as follows:




     (i) On the Trade Date, and as of the date of any election by Counterparty of the
Share Termination Alternative under (and as defined in) Section 8(b) below, (A)
Counterparty is not aware of any material nonpublic information regarding
Counterparty or the Shares and (B) all reports and other documents filed by
Counterparty with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) when considered as a whole
(with the more recent such reports and documents deemed to amend inconsistent
statements contained in any earlier such reports and documents), do not contain any
untrue statement of a material fact or any omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.




     (ii) (A) On the Trade Date, the Shares or securities that are convertible into,
or exchangeable or exercisable for Shares, are not, and shall not be, subject to a
“restricted period,” as such term is defined in Regulation M under the Exchange Act
(“Regulation M”) and (B) Counterparty shall not engage in any “distribution” as such
term is defined in Regulation M, other than a distribution meeting the requirements
of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M,
until the second Exchange Business Day immediately following the Trade Date.




     (iii) On the Trade Date, neither Counterparty nor any “affiliate” or “affiliated
purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”))
shall directly or indirectly (including, without limitation, by means of any
cash-settled or other derivative instrument) purchase,
offer to purchase, place any
bid or limit order that would effect a purchase of, or commence any tender offer
relating to, any Shares (or an equivalent interest, including a unit of beneficial
interest in a trust or limited partnership or a depository share) or any security
convertible into or exchangeable or exercisable for Shares, except through Dealer.




     (iv) Without limiting the generality of Section 13.1 of the Equity Definitions,
Counterparty acknowledges that Dealer is not making any representations or warranties
with respect to the treatment of the Transaction under any accounting standards
including FASB Statements 128, 133, 149 (each as amended), or 150, EITF Issue No.
00-19, 01-6, 03-6 or 07-5 (or any successor issue statements) or under FASB’s
Liabilities & Equity Project.




     (v) Without limiting the generality of Section 3(a)(iii) of the Agreement, the
Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.




     (vi) On or prior to the Trade Date, Counterparty shall deliver to Dealer a
resolution of Counterparty’s board of directors (or a duly authorized committee
thereof) authorizing the Transaction.




     (vii) Counterparty is not entering into this Confirmation or making any election
hereunder or under the Convertible Securities to create actual or apparent trading
activity in the Shares (or any security convertible into or exchangeable for Shares)
or to raise or depress or otherwise manipulate the price of the Shares (or any
security convertible into or exchangeable for Shares) or otherwise in violation of
the Exchange Act.




     (viii) Counterparty is not, and after giving effect to the transactions
contemplated hereby will not be, required to register as an “investment company” as
such term is defined in the Investment Company Act of 1940, as amended.




     (ix) On each of the Trade Date and the Premium Payment Date, Counterparty is
not, or will not be, “insolvent” (as such term is defined under Section 101(32) of
the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy
Code”)) and Counterparty would be able to














 






purchase the Number of Shares hereunder in
compliance with the laws of the jurisdiction of its incorporation.



     (x) As of the Trade Date, Counterparty is not aware of any applicable gaming
law, rule or regulation in any jurisdiction in which it then operates or is licensed
that imposes or would impose an affirmative obligation on any person (in the absence
of any action taken by any relevant gaming authority with competent jurisdiction over
such person) who, under any relevant definition of ownership, owns less than 5.0% of
any class of securities of Counterparty. Counterparty shall promptly notify Dealer
if it becomes aware of such an affirmative obligation after the Trade Date.




     (xi) Counterparty understands no obligations of Dealer to it hereunder will be
entitled to the benefit of deposit insurance and that such obligations will not be
guaranteed by any affiliate of Dealer or any governmental agency.



     (b) Each of Dealer and Counterparty agrees and represents that it is an “eligible
contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as
amended.



     (c) Each of Dealer and Counterparty acknowledges that the offer and sale of the
Transaction to it is intended to be exempt from registration under the Securities Act of
1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly,
Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear
the economic risk of its investment in the Transaction and is able to bear a total loss of
its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D
as promulgated under the Securities Act, (iii) it is entering into the Transaction for its
own account and without a view to the distribution or resale thereof, and (iv) the
assignment, transfer or other disposition of the Transaction has not
been and will not be
registered under the Securities Act and is restricted under this Confirmation, the
Securities Act and state securities laws.



     (d) Counterparty agrees and acknowledges that Dealer is one or more of a “financial
institution,” “swap participant” and “financial participant” within the meaning of Sections
101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and
acknowledge that it is the intent of the parties that (A) this Confirmation is (i) a
“securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code,
with respect to which each payment and delivery hereunder or in connection herewith is a
“termination value,” “payment amount” or “other transfer obligation” within the meaning of
Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section
546 of the Bankruptcy Code and (ii) a “swap agreement,” as such term is defined in Section
101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder
or in connection herewith is a “termination value,” “payment amount” or “other transfer
obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as
such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other
transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, (B)
the Agreement is a “master netting agreement” and each of the parties thereto is a “master
netting agreement participant”, each as defined in the Bankruptcy Code, (C) a party’s right
to liquidate a Transaction and to exercise any other remedies upon the occurrence of any
Event of Default under the Agreement with respect to the other party to constitute a
“contractual right ... to cause the liquidation, termination or acceleration” of the
Transaction as described in the Bankruptcy Code and (D) Dealer is entitled to the
protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27),
362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.



     (e) Counterparty shall deliver to Dealer an opinion of counsel, dated as of the
Effective Date and reasonably acceptable to Dealer in form and substance reasonably
satisfactory to Dealer.




	8.	 	Other Provisions:





     (a) Additional Termination Events. The occurrence of (i) an “Event of Default” with
respect to Counterparty under the terms of the Convertible Securities as set forth in the
section of the Indenture containing the provisions described in the Offering Memorandum
under “Description of Notes — Events of Default” that results in the acceleration of
Counterparty’s payment obligations under the Convertible Securities pursuant to
















 






 
 the
Indenture, (ii) an Amendment Event, (iii) a Regulatory Event, (iv) a Repayment Event or (v)
an Excluded Conversion Event, in each case shall be an Additional Termination Event with
respect to which the Transaction is the sole Affected Transaction and Counterparty is the
sole Affected Party, and Dealer shall be the party entitled to designate an Early
Termination Date pursuant to Section 6(b) of the Agreement; provided that (A) in the case of
a Regulatory Event, (I) if Dealer determines that such Regulatory Event relates solely to an
additional monetary cost of having to comply with applicable gaming laws, rules or
regulations and that Counterparty would be permitted under applicable law, rules and
regulations to pay Dealer for such cost, Dealer shall notify Counterparty of such cost and
Dealer shall be entitled to designate an Early Termination Date with respect to such
Regulatory Event only if Counterparty does not, within two Currency Business Days of receipt
of such notice, agree that it shall (x) promptly pay for any such cost previously incurred
by Dealer and (y) pay from time to time any such cost incurred or to be incurred following
notice of the amount or estimated amount thereof from Dealer (and, if such estimate differs
from the actual amount incurred, Dealer shall promptly notify Counterparty of such
deficiency or excess, and Counterparty shall pay any deficiency or Dealer shall reimburse
any excess, as applicable, promptly following such notice), with such payment due on the
later of the date that is five Scheduled Trading Days prior to the date Dealer would incur
such cost and the second Currency Business Day following notice of such amount from Dealer,
(II) Dealer shall be entitled to designate an Early Termination Date with respect to such
Regulatory Event only if Dealer is unable to effect a transfer or assignment to a third
party in accordance with the requirements set forth in the first three sentences of Section
8(f) after using its commercially reasonable efforts on pricing terms and within a time
period reasonably acceptable to Dealer such that such Regulatory Event would cease to exist,
and (III) Dealer shall, if partial termination would cause such Regulatory Event to cease to
exist, treat only that portion of the Transaction as the Affected Transaction as necessary
so that such Regulatory Event no longer exists and (B) in the case of a Repayment Event or
an Excluded Conversion Event, the Transaction shall be subject to termination only in
respect of a number of Options equal to the number of Convertible Securities that cease to
be outstanding in
connection with or as a result of such Repayment Event or Excluded
Conversion Event, as the case may be (the portion of the Transaction represented by such
number of Options, the “Affected Portion”), and, notwithstanding anything to the contrary in
the Agreement or this Confirmation, Dealer shall designate an Early Termination Date
pursuant to Section 6(b) of the Agreement in respect of such Affected Portion, which Early
Termination Date shall be no earlier than one Scheduled Trading Day following Dealer’s
receipt from Counterparty of notice of the occurrence of such Repayment Event or Excluded
Conversion Event, as the case may be, and no later than five Scheduled Trading Days
following the receipt of such notice. For the avoidance of doubt, in determining the amount
payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement
(which, for the avoidance of doubt, shall take into account the Limited Make-Whole Provision
in the case of an Excluded Conversion Event in connection with which holders thereof are
entitled to receive additional Shares pursuant to a Make-Whole Fundamental Change
Adjustment) in connection with an Excluded Conversion Event, the Calculation Agent shall
assume that (x) the relevant Excluded Convertible Securities shall not have been converted
and remain outstanding and (y) in the case of an Induced Conversion, any adjustments,
agreements, additional payments, deliveries or acquisitions by or on behalf of Counterparty
or any affiliate of Counterparty in connection therewith had not occurred. Counterparty
shall, within three Scheduled Trading Days of the occurrence of any event that constitutes a
Repayment Event, provide written notice to Dealer specifying the details (including, without
limitation, the number of Convertible Securities affected by such Repayment Event or the
amount of any related principal repayment, as applicable) of such Repayment Event.



     “Amendment Event” means that Counterparty amends, modifies, supplements, waives or
obtains a waiver in respect of any term of the Indenture or the Convertible Securities
governing the principal amount, coupon, maturity, repurchase obligation of Counterparty,
redemption right of Counterparty, any term relating to conversion of the Convertible
Securities (including changes to the conversion price, conversion settlement dates or
conversion conditions), or any term that would require consent of the holders of not less
than 100% of the principal amount of the Convertible Securities to amend, in each case
without the consent of Dealer (such
consent not to be unreasonably withheld or delayed).



     “Regulatory Event” means that Dealer determines in its sole good faith reasonable
discretion that in connection with being party to this Transaction or acquiring,
establishing, reestablishing, substituting, maintaining, unwinding or disposing of any Hedge
Position that Dealer or its affiliates deems necessary or appropriate to hedge Dealer’s risk
in respect of this Transaction, Dealer or its affiliates could either (i) be













 






 obligated to
register or make filings with or provide notification or information to any gaming
authority, and that such registration, filings or notification or the provision of such
information would pose an Undue Burden on Dealer or its affiliates or (ii) incur additional
risk, liability or cost as a result of having to comply with any applicable gaming laws,
rules or regulations. An “Undue Burden” means (A) any obligation to disclose information
that Dealer or any of its affiliates is not otherwise required to disclose to the general
public in generally available filings (other than information that is readily and generally
publicly available) or to disclose any information earlier or more frequently than it
otherwise does or would otherwise be obligated to do, (B) any registration of, or provision
of information by or in respect of, any employee, officer or director or agents of Dealer
and/or any of its affiliates, other than that which Dealer and/or any of its affiliates is
otherwise required to disclose to the general public in generally available filings and
other readily and generally publicly available information, or (C) any requirement in
respect of the gaming laws, rules or regulations of any applicable jurisdiction which, in
the sole good faith reasonable discretion of Dealer, would cause (x) undue hardship on, (y)
injury to the business or reputation of, or (z) disclosure of confidential or sensitive
information of, Dealer and/or any of its affiliates or any of their employees, officers,
directors and agents.



     “Repayment Event” means that (I) any Convertible Securities are repurchased (whether in
connection with or as a result of a fundamental change, howsoever defined, or for any other
reason) by Counterparty or any of its subsidiaries, (II) any Convertible Securities are
delivered to Counterparty or any of its subsidiaries in exchange for delivery of any
property or assets of Counterparty or any of its subsidiaries (howsoever described), (III)
any principal of any of the Convertible Securities is repaid prior to the final maturity
date of such Convertible Securities (whether following acceleration of such Convertible
Securities or otherwise), or (IV) any Convertible Securities are exchanged by or for the
benefit of the holders thereof for any other securities of Counterparty or any of its
affiliates (or any other property, or any combination thereof) pursuant to any exchange
offer or similar transaction; provided that, in the case of clause (II) and clause (IV),
conversions
of the Convertible Securities pursuant to the terms of the Indenture shall not
be Repayment Events. For the purposes of determining whether a Repayment Event has occurred
hereunder or under the Base Convertible Capped Call Transaction Confirmation with respect to
any Convertible Security, Convertible Securities that are subject to a Repayment Event shall
be allocated first to the Base Convertible Capped Call Transaction Confirmation until all
Options thereunder are exercised, terminated or subject to a Repayment Event.



     “Excluded Conversion Event” means any conversion of any Excluded Convertible
Securities.



     “Induced Conversion” means a conversion of any Excluded Convertible Securities (A) in
connection with (x) an adjustment to the Conversion Rate effected by Counterparty (whether
pursuant to a Discretionary Adjustment or otherwise) that is not required under the terms of
the Indenture or (y) an agreement by Counterparty with the holder(s) of such Convertible
Securities whereby, in the case of either (x) or (y), the holder(s) of such Convertible
Securities receive upon conversion or pursuant to such agreement, as the case may be, a
payment of cash or delivery of Shares or any other property or item of value that was not
required under the terms of the Indenture or (B) after having been acquired from a holder of
Convertible Securities by or on behalf of Counterparty or any of its affiliates other than
pursuant to a conversion by such holder and thereafter converted by or on behalf of
Counterparty or any affiliate of Counterparty.



     (b) Alternative Calculations and Payment on Early Termination and on Certain
Extraordinary Events. If Dealer shall owe Counterparty any amount pursuant to “Consequences
of Merger Events or Tender Offers” above or Sections 12.6, 12.7 or 12.9 of the Equity
Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”),
Counterparty shall have the right, in its sole discretion, to require Dealer to satisfy any
such Payment Obligation by the Share Termination Alternative (as defined below) by giving
irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading
Day, no later than 9:30 A.M. New York City time on the relevant merger date, Announcement
Date, Early Termination Date or date of cancellation or termination in respect of an
Extraordinary Event, as applicable (“Notice of Share Termination”); provided that
Counterparty shall not have the right to so elect in the event of (i) an Insolvency, a
Nationalization or a Merger Event, in each case, in which the consideration or proceeds to
be paid to holders
of Shares consists solely of cash or (ii) an Event of Default in which Counterparty is
the Defaulting Party or a Termination Event in which Counterparty is the Affected Party,
which Event of Default or Termination Event resulted from an event or events within
Counterparty’s control. Upon such Notice of Share Termination, the following provisions
shall apply on the Scheduled Trading Day immediately following the relevant merger date,














 





Announcement Date, Early Termination Date or date of
cancellation or termination in respect
of an Extraordinary Event, as applicable:




	 	 	 

	Share Termination Alternative:

	 	Applicable and means that Dealer
shall deliver to Counterparty the
Share Termination Delivery Property
on the date on which the Payment
Obligation would otherwise be due
pursuant to “Consequences of Merger
Events” above, Section 12.7 or 12.9
of the Equity Definitions or Section
6(d)(ii) of the Agreement, as
applicable, or such later date as
the Calculation Agent may reasonably
determine (the “Share Termination
Payment Date”), in satisfaction of
the Payment Obligation.
	 
	 	 
	Share Termination Delivery 

Property:

	 	A number of Share Termination
Delivery Units, as calculated by the
Calculation Agent, equal to the
Payment Obligation divided by the
Share Termination Unit Price. The
Calculation Agent shall adjust the
Share Termination Delivery Property
by replacing any fractional portion
of the aggregate amount of a
security therein with an amount of
cash equal to the value of such
fractional security based on the
values used to calculate the Share
Termination Unit Price.
	 
	 	 
	Share Termination Unit Price:

	 	The value of property contained in
one Share Termination Delivery Unit
on the date such Share Termination
Delivery Units are to be delivered
as Share Termination Delivery
Property, as determined by the
Calculation Agent in its discretion
by commercially reasonable means and
notified by the Calculation Agent to
Dealer at the time of notification
of the Payment Obligation.
	 
	 	 
	Share Termination Delivery Unit:

	 	In the case of a Termination Event,
Event of Default, Delisting or
Additional Disruption Event, one
Share or, in the case of an
Insolvency, Nationalization or
Merger Event, one Share or a unit
consisting of the number or amount
of each type of property received by
a holder of one Share (without
consideration of any requirement to
pay cash or other consideration in
lieu of fractional amounts of any
securities) in such Insolvency,
Nationalization or Merger Event, as
applicable. If such Insolvency,
Nationalization or Merger Event
involves a choice of consideration
to be received by holders, such
holder shall be deemed to have
elected to receive the maximum
possible amount of cash.








	 	 	 

	Failure to Deliver:

	 	Applicable
	 
	 	 
	Other applicable provisions:

	 	If Share Termination Alternative is
applicable, the provisions of
Sections 9.8, 9.9, 9.10, 9.11
(except that the Representation and
Agreement contained in Section 9.11
of the Equity Definitions shall be
modified by excluding any
representations therein relating to
restrictions, obligations,
limitations or requirements under
applicable securities laws arising
as a result of the fact that
Counterparty is the issuer of the
Shares or any portion of the Share
Termination Delivery Units) and 9.12
of the Equity Definitions will be
applicable as if “Physical
Settlement” applied to the
Transaction, except that all
references to “Shares” shall be read
as references to “Share Termination
Delivery Units.”






     (c) Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith
reasonable judgment of Dealer based on the advice of outside counsel, any Shares (the “Hedge
Shares”) acquired by Dealer or any of its affiliates (collectively for the purposes of this
paragraph (c) only, “Dealer”) for the purpose of hedging its obligations pursuant to the
Transaction cannot be sold in the public market by Dealer without
registration under the Securities Act, Counterparty shall, at its election: (i) in
order to allow Dealer to sell the Hedge Shares in a registered offering, make available to
Dealer an effective registration statement under the Securities Act to cover the resale of
such Hedge Shares and (A) enter into an agreement, in form and substance reasonably
satisfactory to Dealer, substantially in the form of an underwriting agreement for a
registered














 






 offering of a similar size, (B) provide accountant’s “comfort” letters in
customary form for registered offerings of equity securities of a similar size, (C) provide
disclosure opinions of nationally recognized outside counsel to Counterparty reasonably
acceptable to Dealer, (D) provide other customary opinions, certificates and closing
documents customary in form for registered offerings of equity securities of a similar size
and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation
with respect to Counterparty customary in scope for underwritten offerings of equity
securities of a similar size; provided, however, that if Dealer, in its reasonable judgment,
is not satisfied with access to due diligence materials, the results of its due diligence
investigation, or the procedures and documentation for the registered offering referred to
above, then clause (ii) or clause (iii) of this Section 8(c) shall apply at the election of
Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement,
enter into a private placement agreement substantially similar to private placement purchase
agreements customary for private placements of equity securities of a similar size, in form
and substance reasonably satisfactory to Dealer, including customary representations,
covenants, blue sky and other governmental filings and/or registrations, indemnities to
Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from
Dealer), opinions and certificates and such other documentation as is customary for private
placements agreements of a similar size, all reasonably acceptable to Dealer (in which case,
the Calculation Agent shall make any adjustments to the terms of the Transaction that are
necessary, in its reasonable judgment, to compensate Dealer for any discount from the public
market price of the Shares incurred on the sale of Hedge Shares in a private placement); or
(iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business
Days, and in the amounts, requested by Dealer.



     (d) Amendment to Equity Definitions. The following amendment shall be made to the
Equity Definitions:



     Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from
the fourth line thereof the word “or” after the word “official” and inserting a comma
therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting
the following words therefor “or (C) at Dealer’s option, the occurrence of any of the events
specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to
that Issuer.”



     (e) Repurchase and Conversion Rate Adjustment Notices. Counterparty shall, at least
five Scheduled Trading Days prior to effecting any repurchase of Shares or consummating or
otherwise executing or engaging in any transaction or event (other than a stock split,
reverse stock split or stock dividend) (a “Conversion Rate Adjustment Event”) that would
lead to an increase in the “Conversion Rate”, give Dealer a written notice of such
repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) if, following such
repurchase or Conversion Rate Adjustment Event, the Notice Percentage as determined on the
date of such Repurchase Notice is (i) greater than 4.0% and (ii) greater by 0.5% than the
Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case
of the first such Repurchase Notice, greater than the Notice Percentage as of the date
hereof), and, if such repurchase or Conversion Rate Adjustment Event, or the intention to
effect the same, would constitute material non-public information with respect to
Counterparty or the Shares, Counterparty shall make public disclosure thereof at or prior to
delivery of such Repurchase Notice. The “Notice Percentage” as of any day is the fraction,
expressed as a percentage, the numerator of which is the sum of (x) Number of Shares for the
Transaction and (y) the “Number of Shares” as defined in the Base Convertible Capped Call
Transaction Confirmation and the denominator of which is the number of Shares outstanding on
such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice
on the day and in the manner specified in this Section 8(e) then Counterparty agrees to
indemnify and hold harmless Dealer, its affiliates and their respective directors, officers,
employees, agents and controlling persons (Dealer and each such person being an “Indemnified
Party”) from and against any and all losses (including losses relating to the Dealer’s
hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16
“insider”, including without limitation, any forbearance from hedging activities or
cessation of hedging activities and any losses in connection therewith with respect to this
Transaction), claims, damages and liabilities (or actions in respect thereof), joint or
several, to which such Indemnified Party may become subject under applicable securities
laws, including without limitation, Section 16 of the Exchange Act or under any federal,
state or local
(including non-U.S.) law, regulation or regulatory order, relating to or arising out of
such failure. If for any reason the foregoing indemnification is unavailable to any
Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty
shall contribute, to the maximum extent permitted by law, to the amount paid or payable by
the Indemnified Party as a result of such loss, claim, damage or liability. In addition,














 






Counterparty will reimburse any Indemnified Party for all expenses (including reasonable
counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection
with the investigation of, preparation for or defense or settlement of any pending or
threatened claim or any action, suit or proceeding arising therefrom, whether or not such
Indemnified Party is a party thereto and whether or not such claim, action, suit or
proceeding is initiated or brought by or on behalf of Counterparty. This indemnity shall
survive the completion of the Transaction contemplated by this Confirmation and any
assignment and delegation of the Transaction made pursuant to this Confirmation or the
Agreement shall inure to the benefit of any permitted assignee of Dealer.



     (f) Transfer and Assignment. Either party may transfer any of its rights or
obligations under the Transaction only with the prior written consent of the
non-transferring party, such consent not to be unreasonably withheld or delayed. For the
avoidance of doubt, (A) Dealer may condition its consent on any of the following, without
limitation: (i) the receipt by Dealer of opinions and documents reasonably satisfactory to
Dealer in connection with such assignment, (ii) such assignment being effected on terms
reasonably satisfactory to Dealer with respect to any legal and regulatory requirements
relevant to Dealer, and (iii) Counterparty continuing to be obligated to provide notices
hereunder relating to the Convertible Securities and continuing to be obligated with respect
to “Disposition of Hedge Shares” and “Repurchase and Conversion Rate Adjustment Notices”
above and (B) Counterparty may condition its consent on, without limitation, whether such
transfer or assignment would, in the sole discretion of the Counterparty, result in the
termination of the Transaction, or otherwise result in adverse consequences to Counterparty,
for U.S. federal income tax purposes. In addition, Dealer may transfer or assign without
any consent of Counterparty its rights and obligations hereunder and under the Agreement, in
whole or in part, to any of its affiliates which has (or whose guarantor has) credit quality
equivalent to Dealer; provided that Dealer shall provide Counterparty with five Scheduled
Trading Days’ prior notice of such assignment; and provided further that such transfer and
assignment would not, in the reasonable judgment of Counterparty, result in a termination of
the Transaction for U.S. federal income tax purposes. At any time at which any Excess
Ownership Position exists, if Dealer is unable to effect a transfer or assignment to a third
party in accordance with the requirements set forth above after using its commercially
reasonable efforts on pricing terms and within a time period reasonably acceptable to Dealer
such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled
Trading Day as an Early
Termination Date with respect to a portion (the “Terminated
Portion”) of the Transaction, such that such Excess Ownership Position no longer exists. In
the event that Dealer so designates an Early Termination Date with respect to a portion of
the Transaction, a payment or delivery shall be made pursuant to Section 6 of the Agreement
and Section 8(b) of this Confirmation as if (i) an Early Termination Date had been
designated in respect of a Transaction having terms identical to the Terminated Portion of
the Transaction, (ii) Counterparty shall be the sole Affected Party with respect to such
partial termination and (iii) such portion of the Transaction shall be the only Terminated
Transaction. “Excess Ownership Position” means any of the following: (i) the Equity
Percentage exceeds 4.5%, or (ii) Dealer or any “affiliate” or “associate” of Dealer would
own in excess of 13% of the outstanding Shares for purposes of Section 203 of the Delaware
General Corporation Law or (iii) Dealer, Dealer Group (as defined below) or any person whose
ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer
Group or any such person, a “Dealer Person”) under any federal, state or local (including
non-U.S.) laws, regulations or regulatory orders applicable to ownership of Shares
(“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power
to vote or otherwise meets a relevant definition of ownership in excess of a number of
Shares equal to (x) the number of Shares that would give rise to reporting or registration
obligations or other requirements (including obtaining prior approval by a state or federal
regulator) of a Dealer Person under Applicable Laws and with respect to which such
requirements have not been met or the relevant approval has not been received or that would
give rise to any adverse consequences for a Dealer Person under the constitutive documents
of Counterparty, in each case minus (y) 0.5% of the number of Shares outstanding on the date
of determination. The “Equity Percentage” as of any day is the fraction, expressed as a
percentage, (A) the numerator of which is the number of Shares that Dealer and any of its
affiliates or any other person subject to aggregation with Dealer, for purposes of the
“beneficial ownership” test under Section 13 of the Exchange Act, or of any “group” (within
the
meaning of Section 13) of which Dealer is or may be deemed to be a part (Dealer and any
such affiliates, persons and groups, collectively, “Dealer Group”), beneficially owns
(within the meaning of Section 13 of the Exchange Act), without duplication, on such day
(or, to the extent that, as a result of a change in law, regulation or interpretation after
the date hereof, the equivalent calculation under Section 16 of the Exchange Act and the


















 






rules and regulations thereunder results in a higher number, such number) and (B) the
denominator of which is the number of Shares outstanding on such day.



     (g) Staggered Settlement. If upon the advice of outside counsel with respect to
applicable legal and regulatory requirements, including any requirements relating to
Dealer’s Hedging Activities with respect to the Transaction, Dealer determines, in its
reasonable discretion, that it would not be practicable to deliver, or to acquire Shares to
deliver, any or all of the Shares to be delivered by Dealer on a Settlement Date, Dealer
may, by notice to Counterparty on or prior to such Settlement Date (a “Nominal Settlement
Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement
Date”) or at two or more times on the Nominal Settlement Date as follows:




     (i) in such notice, Dealer will specify to Counterparty the related Staggered
Settlement Dates (each of which will be on or prior to such Nominal Settlement Date,
but not prior to the beginning of the related Settlement Averaging Period) or
delivery times and how it will allocate the Shares it is required to deliver under
“Delivery Obligation” (above) among the Staggered Settlement Dates or delivery times;
and




     (ii) the aggregate number of Shares that Dealer will deliver to Counterparty
hereunder on all such Staggered Settlement Dates and delivery times will equal the
number of Shares that Dealer would otherwise be required to deliver on such Nominal
Settlement Date.



     (h) Right to Extend. Dealer may postpone any Settlement Date, in whole or in part, or
extend the Settlement Averaging Period, such postponement or extension not to exceed 20
Scheduled Trading Days in the aggregate, in each case if the Calculation Agent determines
that such postponement or extension is reasonably necessary or appropriate to (i) preserve
Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity
conditions in the cash market, the stock loan market or any other relevant market (but only
if there is a material decrease in such liquidity conditions relative to the Trade Date) or
(ii) to enable Dealer to effect purchases of Shares in connection with its hedging, hedge
unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty
or an affiliated purchaser of Counterparty, be in compliance with
applicable legal,
regulatory or self-regulatory requirements, or with related policies and procedures
applicable to Dealer. In connection with any Settlement Date that is postponed or any
Settlement Averaging Period that is extended pursuant to the immediately preceding sentence,
if Shares are to be delivered by Dealer to Counterparty on such postponed Settlement Date or
on the Settlement Date related to such extension to the Settlement Averaging Period and the
record date for any dividend or distribution on the Shares occurs during the period from,
and including, the original Settlement Date to, but excluding, such postponed or extended
Settlement Date, then on such postponed or extended Settlement Date, in addition to
delivering such Shares, Dealer shall pay or deliver, as the case may be, to Counterparty,
the per Share amount of such dividend or distribution multiplied by the number of postponed
Shares to be delivered.



     (i) Disclosure. Effective from the date of commencement of discussions concerning the
Transaction, Counterparty and each of its employees, representatives, or other agents may
disclose to any and all persons, without limitation of any kind, the tax treatment and tax
structure of the Transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to Counterparty relating to such tax treatment and tax
structure.



     (j) Designation by Dealer. Notwithstanding any other provision in this Confirmation to
the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares
or other securities to or from Counterparty, Dealer may designate any of its affiliates to
purchase, sell, receive or deliver such Shares or other securities and otherwise to perform
Dealer’s obligations in respect of the Transaction and any such designee may assume such
obligations. Dealer shall be discharged of its obligations to Counterparty only to the
extent of any such performance.



     (k) No Netting and Set-off. Each party waives any and all rights it may have to set
off obligations arising under the Agreement and the Transaction against other obligations
between the parties, whether arising under any other agreement, applicable law or otherwise.



17









 





     (l) Equity Rights. Dealer acknowledges and agrees that this Confirmation is not
intended to convey to it rights with respect to the Transaction that are senior to the
claims of common stockholders in the event of Counterparty’s bankruptcy. For the avoidance
of doubt, the parties agree that the preceding sentence shall not apply at any time other
than during Counterparty’s bankruptcy to any claim arising as a result of a breach by
Counterparty of any of its obligations under this Confirmation or the Agreement. For the
avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any
collateral that would otherwise secure the obligations of Counterparty herein under or
pursuant to any other agreement.



     (m) Counterparty’s Obligation to Pay Cancellation Amounts and Early Termination
Amounts. Dealer and Counterparty hereby agree that, notwithstanding anything to the
contrary herein or in the Agreement, following Dealer’s receipt of the Premium from
Counterparty on the Premium Payment Date, in the event that (a) an Early Termination Date
(whether as a result of an Event of Default or a Termination Event) occurs or is designated
with respect to such Transaction and, as a result, Counterparty owes to Dealer an Early
Termination Amount or (b) Counterparty owes to Dealer, pursuant to Section 12.7 or Section
12.9 of the Equity Definitions, a Cancellation Amount, in each case, such amount shall be
deemed to be zero. If Counterparty pays the Premium on the Premium Payment Date, then under
no circumstances shall Counterparty be required to pay any amount in addition to the Premium
with respect to the Transaction. For the avoidance of doubt, the preceding sentence shall
not be construed as limiting any damages that may be payable by Counterparty as a result of
a breach of or an indemnity under this Confirmation or the Agreement or any amount that may
be payable by Counterparty pursuant to clause (A)(I) of Section 8(a) of this Confirmation.



     (n) Early Unwind. In the event the sale by Counterparty of the Option Notes (as
defined in the Purchase Agreement) is not consummated with the Initial Purchasers pursuant
to the Purchase Agreement dated as of April 15, 2010, among the Counterparty, the Guarantors
and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representative of the Initial
Purchasers party thereto (the “Initial Purchasers” and such agreement, the “Purchase
Agreement”) for any reason by the close of business in New York on the relevant Date of
Delivery (as defined in the Purchase Agreement) (or such later date as agreed upon by the
parties, which in no event shall be later than the date that is ten business days following
such date) (such Date of Delivery or such later date being the “Early Unwind Date”), the
Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and
(i) the Transaction and all of the respective rights and obligations of Dealer and
Counterparty thereunder shall be cancelled and terminated and (ii) if such Early Unwind is
the result of a breach by Counterparty under the Purchase Agreement, Counterparty shall pay
to Dealer an amount in cash equal to the aggregate amount of all reasonable costs and
expenses incurred by Dealer in connection with the unwinding of Dealer’s hedging activities
in respect of the Transaction (including market losses incurred in reselling any Shares
purchased by Dealer or its affiliates in connection with such hedging activities).
Following such termination, cancellation and payment, each party shall be released and
discharged by the other party from and agrees not to make any claim against the other party
with respect to any obligations or liabilities of either party arising out of and to be
performed in connection with the Transaction either prior to or after the Early Unwind Date.
Dealer and Counterparty represent and acknowledge to the other that upon an Early Unwind
and following the payment referred to above, if applicable, all obligations with respect to
the Transaction shall be deemed fully and finally discharged.



     (o) Role of Agent. Each of Dealer and Counterparty acknowledges to and agrees with the
other party hereto and with the Agent that (i) the Agent is acting as agent for Dealer under
the Transaction pursuant to instructions from such party, (ii) the Agent is not a principal
or party to the Transaction, and may transfer its rights and obligations with respect to the
Transaction, (iii) the Agent shall have no responsibility, obligation or liability, by way
of issuance, guaranty, endorsement or otherwise in any manner with respect to the
performance of either party under the Transaction, (iv) Dealer and the Agent have not given,
and Counterparty is not relying (for purposes of making any investment decision or
otherwise) upon, any statements, opinions or representations (whether written or oral) of
Dealer or the Agent, other than the representations expressly set forth in this Confirmation
or the Agreement, and (v) each party agrees to proceed solely against the other party,
and not the Agent, to collect or recover any money or securities owed to it in
connection with the Transaction. Each party hereto acknowledges and agrees that the Agent is
an intended third party beneficiary hereunder. Counterparty acknowledges that the Agent is
an affiliate of Dealer. Dealer will be acting for its own account in respect of this
Confirmation and the Transaction contemplated hereunder.















 







     (p) Regulatory Provisions. Dealer is regulated by the Financial Services Authority.
Dealer is not a member of the Securities Investor Protection Corporation. The time of
dealing for the Transaction will be confirmed by Dealer upon written request by
Counterparty. The Agent will furnish to Counterparty upon written request a statement as to
the source and amount of any remuneration received or to be received by the Agent in
connection with the Transaction.



     (q) Waiver of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES
(ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE
ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.



     (r) Governing Law; Jurisdiction. THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE
LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.

















 



Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly
sets forth the terms of the Transaction by signing in the space provided below and returning to
Dealer a facsimile of the fully-executed Confirmation to Dealer at (+1) 917-522-0458. Originals
shall be provided for your execution upon your request.




	 	 	 	 	 
	 	BARCLAYS CAPITAL INC.


acting solely as Agent in connection with this
Transaction

 	 
	 	By:  	/s/ Paul Robinson	 
	 	 	Name:  	Paul Robinson	 
	 	 	Title:  	Managing Director	 
	 


Agreed and Accepted By:




	 	 	 	 	 
	MGM MIRAGE

 	 	 
	By:  	/s/ William M. Scott IV	 	 
	 	Name:  	William M. Scott IV	 	 
	 	Title:  	Senior VP, Deputy General Counsel	 	 
	 



Additional Capped Call Confirmation