exv10w2






Exhibit 10.2




Execution Version




	 	 	 

	 

	 	April 15, 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:

	 	Base 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
USD1,000,000,000 principal amount of 4.25% convertible senior notes due 2015 (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



1









 







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 15, 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 Convertible Securities, other than
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) on
the closing date for the initial issuance of the
Convertible Securities.
	 
	 	 
	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:

	 	USD21.8550
	 
	 	 
	Premium:

	 	USD28,340,000
	 
	 	 
	Premium Payment Date:

	 	The Effective Date
	 
	 	 
	Exchange:

	 	New York Stock Exchange






2









 






	 	 	 
	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 (such
Convertible Securities, other than those excluded
as set forth above, the “Relevant Convertible
Securities” for such Conversion Date).
	 
	 	 
	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.
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. 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.






3









 






	 	 	 
	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






4









 






	 	 	 
	 

	 	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






5









 






	 	 	 
	 

	 	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






6









 






	 	 	 
	 

	 	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






7









 






	 	 	 
	 

	 	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
	 
	 	 
	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.






8









 







	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,



9









 







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



10









 







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



11









 







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



12









 







of the Convertible Securities pursuant to the terms of the Indenture shall not
be Repayment Events.



     “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






13









 






	 	 	 

	 

	 	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.”



14









 





     (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 Number of Shares 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



15









 







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



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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.



     (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 Initial 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 April 20, 2010 (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) (April 20, 2010 or such later date being the “Early Unwind Date”), the



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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.



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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 	 	 
	 




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