exv10w1



 





Exhibit 10.1




AMENDMENT NO. 1

TO

THE LIMITED LIABILITY COMPANY AGREEMENT

OF CITYCENTER HOLDINGS, LLC




     This Amendment No.1 (this “Amendment”), dated as of November 15, 2007 (the “Amendment
Effective Date”), to the Limited Liability Company Agreement is entered into by and between PROJECT
CC, LLC, a Nevada limited liability company (“MGM”) and INFINITY WORLD DEVELOPMENT CORP., a Nevada
corporation (“DW”) (MGM and DW are hereinafter referred to individually as a “Member” and
collectively as the “Members”).



RECITALS




     WHEREAS, MGM and DW entered into that certain Limited Liability Company Agreement (the
“Agreement”), dated August 21, 2007, with respect to the subject matters set forth therein; and



     WHEREAS, MGM and DW desire to amend the Agreement as set forth in this Amendment.



     NOW, THEREFORE, in consideration of the above premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:



AGREEMENT




Section 1



Defined Terms. Each capitalized term used and not defined herein shall have the meaning assigned
to it in the Agreement (as amended hereby).




Section 2



Amendment to the Agreement. Effective as of the Amendment Effective Date, the Agreement is hereby
amended:




     (A) PREAMBLE




	 	(i)	 	     by replacing the phrase “a Nevada limited liability company (“Project
LLC”), manage, design, plan,” with the phrase “a Nevada limited liability company,
and to manage, design, plan,” in the second paragraph of the preamble.
	 
	 	(ii)	 	     by replacing the phrase “desire to enter into this Agreement.” with the
phrase “desire to enter into this Agreement;” in the third paragraph of the
preamble.




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	 	(iii)	 	     by removing the word “and” immediately after the phrase “the
membership interests in Project Owner to the Company;” in the fourth paragraph of
the preamble.
	 
	 	(iv)	 	     by replacing the phrase “all as more particularly set forth herein.”
with the phrase “all as more particularly set forth herein;” in the fifth paragraph
of the preamble.
	 
	 	(v)	 	     by adding the paragraph “WHEREAS, the parties entered into the Limited
Liability Company Agreement of CityCenter Holdings, LLC (the “Prior Agreement”) on
August 21, 2007 (the “Signing Date”); and” immediately after the fifth paragraph of
the preamble.
	 
	 	(vi)	 	     by adding the paragraph “WHEREAS, the parties desire to amend and
restate the Prior Agreement pursuant to this Agreement.” immediately after the
sixth paragraph of the preamble.





     (B) ARTICLE 1




	 	(i)	 	     by adding the phrase “, which shall be called CityCenter Holdings,
LLC,” immediately after the phrase “the Members shall form and establish a limited
liability company” in the first sentence of Section 1.1 of the Agreement.
	 
	 	(ii)	 	     by replacing the term “‘Contribution Agreement’.” with the term
““Contribution Agreement.”” in the third sentence of Section 1.1 of the Agreement.
	 
	 	(iii)	 	     by replacing the word “subsidiaries” with the term “Subsidiaries” in
the third sentence of Section 1.4 of the Agreement.
	 
	 	(iv)	 	     by removing the phrase “,or each potential class,” immediately after
the phrase “and operate its business, and own each” in Section 1.10 of the
Agreement.
	 
	 	(v)	 	     by replacing the definitions found in Section 1.11 of the Agreement
with the following list of definitions.





     ““Acceptance Notice” has the meaning set forth in Section 11.6 hereof.



     “Accounted Condo Units” has the meaning set forth in Section 3.2(b)(v)(4)(O) hereof.



     “Act” has the meaning set forth in the preamble hereof.



     “actual knowledge” has the meaning set forth in Section 10.1 or Section 10.2, as applicable.



     “Actual Pre-Closing Development Costs” shall mean the actual amount of aggregate Development
Costs paid by MGM and its Affiliates during the period beginning with the



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inception of the Project and ending on the Closing Date and set forth in the Post-Closing
Statement.



     “Actual Pre-Closing Residential Proceeds” shall mean the actual amount of (A) cash proceeds
received by MGM or its Affiliates, excluding any cash proceeds returned or refunded, from the sale
or a contract to sell any residential units in the Project Components since the inception of the
Project to the Closing Date less (B) the Sales Expenses related to such condominium units.



     “Actual Pre-Opening Costs” shall mean the actual amount of aggregate pre-opening and start-up
expenses paid by MGM and its Affiliates during the period beginning with the inception of the
Project and ending on the Closing Date and set forth in the Updated Pre-Closing Statement.



     “Actual Residential Sales” has the meaning set forth in Section 3.2(b)(v)(4)(I) hereof.



     “Additional Agreements” shall mean the Development Management Agreement, the Operations
Management Agreement, and the Ancillary Agreements.



     “Adjusted Capital Account Deficit” has the meaning set forth in Section 5.6 hereof.



     “Affiliate” means a person which directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the person specified; provided, however,
that a Member, as such, shall not be deemed to be an Affiliate of the other Member. For the
purpose of this definition, “control” (including, with correlative meanings, the terms “controls,”
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.



     “Agreement” has the meaning set forth in the first paragraph of this Agreement.



     “Allocation Statement” has the meaning set forth in Section 3.8(a)(i) hereof.



     “Alternate” has the meaning set forth in Section 9.1(b) hereof.



     “Alternative CVA Distribution” has the meaning set forth in Section 3.2(b)(v)(3) hereof.



     “Ancillary Agreement” shall mean an agreement between MGM or its Affiliate and the Company
providing for a grant of a lease, easement, or permission to use or occupy any real, personal or
intellectual property, including, but not limited to, such matters described in Exhibit B hereto.



     “Annual Budget” means, at any time, the annual budget for the day-to-day operations of a
Project Component most recently Approved by the Board of Directors in accordance with the terms of
this Agreement.



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     “Anticipated Pre-Financing Construction Costs” has the meaning set forth in Section 3.2(b)(iv)
hereof.



     “Appraisal Notice” has the meaning set forth in Section 13.5(a) hereof.



     “Appraised Value” has the meaning set forth in Section 13.5(a) hereof.



     “Approval” or “Approved” shall mean, with the respect to the Board of Directors, the approval
by (i) majority of all of the Representatives on the Board of Directors entitled to vote on the
matter, (ii) as long as MGM or its Affiliate is a Member, at least one Representative designated by
MGM, and (iii) as long as DW or its Affiliate is a Member, at least one Representative designated
by DW.



     “Approved Counsel” means (i) Lionel Sawyer & Collins, (ii) Snell & Wilmer, L.L.P., (iii)
Brownstein Hyatt Farber Schreck, and (iv) any other attorney duly licensed in the State of Nevada
that has been Approved by the Board of Directors or by all Members in writing.



     “Base Initial Contingent Value Adjustment” has the meaning set forth in Section
3.2(b)(v)(4)(B).



     “Base Profit Interest” has the meaning set forth in Section 3.4(b)(i)(1) hereof.



     “Board of Directors” has the meaning set forth in Section 9.1 hereof.



     “Business Day” means each day other than a Saturday, Sunday or any day observed by the
Federal, State of Nevada or local government in Las Vegas, Nevada as a legal holiday.



     “Business Plan” means, at any time, the Initial Business Plan or any subsequent Business Plan
for the Project, prepared by the Managing Member and Approved by the Board of Directors in
accordance with Sections 7.9 and 9.3 hereof, as such Business Plan(s) may be, from time to time,
amended, modified or supplemented in accordance with the terms and provisions of this Agreement.



     “Capital Account” has the meaning set forth in Section 3.6 hereof.



     “Capital Contribution” shall mean Initial Capital Contribution or Subsequent Capital
Contribution.



     “Casino CO Delay Adjustment” has the meaning set forth in Section 3.2(b)(v)(4)(D) hereof.



     “Casino Opening Date” has the meaning set forth in Section 4.2 hereof.



     “Closing Date” means the date on which the Initial Capital Contributions are made pursuant to
Section 3.2, which Closing Date shall not be later than March 31, 2008, provided however, that if
approvals that are a condition precedent to either Member’s obligation to make its Initial Capital
Contribution have not been obtained as of March 31, 2008 and the parties are



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using diligent efforts to obtain such approvals, then the Closing Date shall be extended to
June 30, 2008.



     “Code” means the Internal Revenue Code of 1986 (or successor thereto), as amended from time to
time.



     “Company” has the meaning set forth in Section 1.1.



     “Company Accountants” means Deloitte & Touche, LLP.



     “Company Minimum Gain” shall have the meaning as set forth in Regulations Sections
1.704-2(b)(2) and 1.704-2(d).



     “Condition” means the DW Conditions Precedent and the MGM Conditions Precedent.



     “Conditional Transfer Price” shall mean, with respect to the Units to be Transferred pursuant
to Section 4.2(c), 100% of the Appraised Value of such Units.



     “Construction Budget” means, at any time, the budget for the acquisition, development and
construction of the entire Project prepared by, or on behalf of, the Managing Member and Approved
by the Board of Directors, setting forth in detail, by category and line item, all Development
Costs, as such budget shall be amended from time to time in accordance with this Agreement. The
Construction Budget shall incorporate costs incurred in connection with the Project since inception
of the Project by MGM and its Affiliates. Without limiting the foregoing, the Construction Budget
shall allocate and separate all Development Costs among the various Project Components so that the
Construction Budget sets forth a maximum amount of Development Costs for each Project Component and
the sum of the aggregate budgeted Development Costs for each Project Component will equal the
aggregate amount of the Construction Budget. The initial Construction Budget for the Project has
been approved by the Members as of the Signing Date. All future Construction Budgets, including
any amendments, modifications and/or supplements thereof and thereto, will be in the same form as
the Construction Budget. A summary of the Construction Budget is set forth on Exhibit J.



     “Construction Budget Adjustment” has the meaning set forth in Section 3.2(b)(v)(4)(C) hereof.



     “Contingent Value Adjustment Distribution” has the meaning set forth in Section
3.2(b)(v)(4)(R) hereof.



     “County” means Clark County, Nevada.



     “CPI” means the Consumer Price Index for All Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor, Los Angeles-Anaheim-Riverside, All Items
(1982-84 = 100), or any successor index thereto, as such successor index may be appropriately
adjusted to establish substantial equivalence with the CPI, or if the CPI ceases to be published
and there is no successor thereto, such other index as shall be Approved by the Board of Directors.



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     “Current Owners” means Bellagio, LLC, Treasure Island Corp., April Cook Companies, Restaurant
Ventures of Nevada, Project CC, LLC, Boardwalk Casino, LLC, and Victoria Partners, a Limited
Partnership collectively constituting the owners of legal title to the Project as of the date prior
to the date of this Agreement.



     “Deductible” has the meaning set forth in Section 13.3(a)(ii) hereof.



     “Default Interest Rate” means Prime Rate plus five percent (5%).



     “Defaulting Member” has the meaning set forth in Section 13.1 hereof.



     “Delinquent Member” has the meaning set forth in Section 3.4 hereof.



     “Development Agreement” shall mean that certain Development Agreement, recorded with Clark
County Recorders Office on May 23, 2006 as document number 20030523-0005103, by and among the
County of Clark and Project CC, LLC D/B/A Project CityCenter, Bellagio, LLC, The April Cook
Companies, Treasure Island Corp., Restaurant Ventures of Nevada, Inc., Victoria Partners, a Limited
Partnership and Boardwalk Casino, Inc.



     “Development Costs” means, without duplication, all of the following fees, costs and expenses
incurred or to be paid in connection with the Project: (i) all hard construction costs to
construct and complete the entire Project in accordance with the Plans, (ii) whether incurred
before or after completion of any particular Project Component, any costs of fit out of such
Project Component (which shall include, without limitation, any free rent, tenant improvements or
other tenant concessions), (iii) soft costs directly related to the construction of the Project
(such as architect’s fees), incurred since inception of the Project, (iv) other soft costs not
directly related to hard construction costs of the Project (such as real estate taxes and insurance
premiums), in each case, whether paid or unpaid, and (v) all fees, costs and expenses incurred to
acquire the Project Assets (excluding the initial Capital Contribution of DW pursuant to this
Agreement).



     “Development Management Agreement” shall mean the agreement or term sheet between MGM or its
Affiliate and the Company, as approved by the Members, providing for the management by MGM or its
Affiliate of the designing, planning, development, construction, sales and marketing of the
Project, in either case, in the form attached hereto as Exhibit D.



     “Development Manager” shall have the meaning ascribed to it in the Development Management
Agreement.



     “Disposing Member” has the meaning set forth in Section 11.6 hereof.



     “Disposition Notice” has the meaning set forth in Section 11.6 hereof.



     “Distributable Cash” has the meaning set forth in Section 6.3 hereof.



     “DPA” means the Exon-Florio Amendment at Section 721 of the Defense Production Act of 1950.



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     “Dubai World Restricted Affiliates” has the meaning set forth in Section 15.21(b).



     “DW” has the meaning set forth in the first paragraph of this Agreement.



     “DW Conditions Precedent” has the meaning set forth in Section 3.2(b)(ii) hereof.



     “DW Delay Days” has the meaning set forth in Section 3.2(b)(v)(4)(M) hereof.



     “DW Gaming Approval” has the meaning set forth in Section 4.2(b) hereof.



     “DW Indemnitee” has the meaning set forth in Section 13.3(a)(i) of this Agreement.



     “DW Tax Liability” has the meaning set forth in Section 4.10(a) hereof.



     “Early Purchase Procedure” has the meaning set forth in Section 4.2(a)(ii) hereof.



     “Encumbrance” means any monetary mortgage, pledge, Lien, charge, hypothecation, security
interest, or other monetary encumbrances of any nature whatsoever.



     “Escalation” has the meaning set forth in Section 9.3(c) hereof.



     “Event of Bankruptcy” has the meaning set forth in Section 13.1 hereof.



     “Event of Default” has the meaning set forth in Section 13.1 hereof.



     “Excluded Delay Days” has the meaning set forth in Section 3.2(b)(v)(4)(K) hereof.



     “Financing” means debt financing, which may be unsecured or collateralized by one or more
liens on the Project Assets or any portion thereof (including purchase money financing
collateralized by furniture, furnishings, fixtures, machinery or equipment), to be obtained by the
Company from one or more commercial banks or other lenders (including vendors or the Members) for
the purpose of funding the Project.



     “Financing Documents” means all agreements between the Company and any applicable lender
evidencing any Financing.



     “Fiscal Year” has the meaning set forth in Section 7.5 hereof.



     “Force Majeure” shall mean war, terrorism, explosion, bombing, revolution, riots, civil
commotion, strikes, lockout, inability to obtain labour or materials, fire, flood, storm,
earthquake, hurricanes, tornado, drought, tidal waves, settlement of dredged areas or other acts or
elements, accident, government restrictions or appropriation or other causes, whether like or
unlike the foregoing, beyond the Development Manager’s control.



     “Force Majeure Delay Days” has the meaning set forth in Section 3.2(b)(v)(4)(L) hereof.



     “Gaming” means to deal, operate, carry on, conduct, maintain or expose for play any game as
defined in applicable Gaming Laws, or to operate an inter-casino linked system.



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     “Gaming Approvals” means with respect to any action by a particular Person, any consent,
finding of suitability, license, approval or other authorization required for such action by such
Person from a Gaming Authority or under Gaming Laws.



     “Gaming Authority” means those national, state, local and other governmental, regulatory and
administrative authorities, agencies, boards and officials responsible for or regulating gaming or
gaming activities in any jurisdiction and, within the State of Nevada, specifically, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, and the Clark County Liquor and Gaming
Licensing Board.



     “Gaming Components” means all Project Components in which Gaming will take place.



     “Gaming Laws” means those laws pursuant to which any Gaming Authority possesses regulatory,
licensing or permit authority over gaming within any jurisdiction and, within the State of Nevada,
specifically, the Nevada Gaming Control Act, as codified in NRS Chapters 462 – 466, and the
regulations of the Nevada Gaming Commission promulgated thereunder, and the Clark County Code.



     “Gross Asset Value” has the meaning set forth in Section 3.8 hereof.



     “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.



     “Impasse” has the meaning set forth in Section 9.3(c) hereof.



     “Impasse Election Date” has the meaning set forth in Section 9.3(d) hereof.



     “Indemnification Purchase Notice” has the meaning set forth in Section 13.3(a)(iii) hereof.



     “Indemnified Party” and “Indemnified Parties” have the meaning set forth in Section 2.5(a)
hereof.



     “Indemnifying Party” has the meaning set forth in Section 2.5(c) hereof.



     “Individual Adjusted Profit Interest Addition” has the meaning set forth in Section
3.4(b)(i)(2) hereof.



     “Individual Adjusted Profit Interest Subtraction” has the meaning set forth in Section
3.4(b)(i)(4) hereof.



     “Individual Base Profit Interest Addition” has the meaning set forth in Section 3.4(b)(i)(3)
hereof.



     “Individual Base Profit Interest Subtraction” has the meaning set forth in Section
3.4(b)(i)(5) hereof.



     “Initial Adjustment Date” has the meaning set forth in Section 3.2(b)(v)(1) hereof.



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     “Initial Business Plan” has the meaning ascribed to such term in Section 7.9(a), as such
Initial Business Plan may be, from time to time, amended, modified or supplemented in accordance
with the terms and provisions of this Agreement. As of the date hereof, the Members have each
approved the Initial Business Plan.



     “Initial Capital Contribution” has the meaning set forth in Section 3.2 hereof.



     “Initial Contingent Value Adjustment” has the meaning set forth in Section 3.2(b)(v) hereof.



     “Initial Contingent Value Adjustment Distribution” has the meaning set forth in Section
3.2(b)(v)(4)(A) hereof.



     “Initial Pre-Closing Development Cost Estimate” shall mean the amount set forth on Exhibit I
and is the estimated aggregate Development Costs paid by MGM and its Affiliates during the period
beginning with the inception of the Project and ending on the Closing Date.



     “Initial Pre-Closing Residential Proceeds Estimate” shall mean the amount set forth on Exhibit
I and is the estimated amount of (A) the actual cash proceeds received by MGM or its Affiliates,
excluding any cash proceeds returned or refunded, from the sale or a contract to sell any
residential units in the Project Components since the inception of the Project to the Closing Date
less (B) the Sales Expenses related to such condominium units.



     “Initial Pre-Opening Cost Adjustment” has the meaning set forth in Section 3.2(b)(iii)(2)(B)
hereof.



     “Initial Pre-Opening Cost Estimate” shall mean the amount set forth on Exhibit I and is the
estimated aggregate pre-opening and start-up expenses paid by MGM and its Affiliates during the
period beginning with the inception of the Project and ending on the Closing Date.



     “Interest” means, with respect to a Member, the percentage ownership interest in the Company
represented by the Units owned by such Member.



     “Lease Agreement” has the meaning set forth in Section 4.2(b) hereof.



     “Lending Member” has the meaning set forth in Section 3.4 hereof.



     “Lien” or “Liens” means any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind (including, without limitation, any conditional sale or other title retention agreement
or lease in the nature thereof).



     “Liability Limitation Option” has the meaning set forth in Section 13.3(a)(iii) hereof.



     “License Breach” has the meaning set forth in Section 13.1(d) hereof.



     “Loss” means any loss, liability, claim, damage, expense (including reasonable attorneys’
fees), whether or not involving a third party claim and without taking into account any related
insurance payments.



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     “Major Contract” means any contract under which the Company would be required to make payments
or incur liabilities in excess of $50.0 million.



     “Major Decision” has the meaning set forth in Section 9.3(a).



     “Major Lease” means any lease agreement under which the Company would be required to make
payments, receive payments, or incur liabilities, in each case, in excess of $50.0 million.



     “Managing Member” means MGM or its successor as Managing Member.



     “Material Competitor” means the entities identified in Exhibit H.



     “Member” and “Members” has the meaning set forth in the first paragraph of this Agreement.



     “Member Nonrecourse Debt” has the meaning set forth in Regulations Section 1.704-2(b)(4).



     “Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section
1.704-2(i)(3).



     “Member Nonrecourse Deductions” has the meaning set forth in Regulations Sections
1.704-2(i)(1) and 1.704-2(i)(2).



     “MGM” has the meaning set forth in the first paragraph of this Agreement.



     “MGM Additional Contribution” has the meaning set forth in Section 4.10(a) hereof.



     “MGM Conditions Precedent” has the meaning set forth in Section 3.2(a)(ii) hereof.



     “MGM Indemnitee” has the meaning set forth in Section 13.4 of this Agreement.



     “MGM MIRAGE” means MGM MIRAGE, a Delaware corporation.



     “MGM MIRAGE Purchase Note” has the meaning set forth in Section 4.2(a)(ii) hereof.



     “MGM MIRAGE Restricted Affiliates” has the meaning set forth in Section 15.21(a).



     “Net Development Costs” has the meaning set forth in Section 3.2(b)(v)(4)(H) hereof.



     “Net Qualified Residential Sale Proceeds” has the meaning set forth in Section 3.2(b)(v)(4)(Q)
hereof.



     “Net Residential Proceeds” shall mean the actual amount of (A) cash proceeds received by the
Company or its Affiliates from the sale of any residential units in the Project Components less (B)
the Sales Expenses related to such residential units.



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     “Non-Defaulting Member” shall mean a Member who is not a Defaulting Member.



     “Non-Delinquent Member” has the meaning set forth in Section 3.4 hereof.



     “Non-Disposing Member” has the meaning set forth in Section 11.6 hereof.



     “Offer Notice” has the meaning set forth in Section 11.6 hereof.



     “Offer Period” has the meaning set forth in Section 11.6 hereof.



     “Offered Units” has the meaning set forth in Section 11.6 hereof.



     “Operations Management Agreement” shall mean the agreement or term sheet between MGM or its
Affiliate and the Company, as approved by the Members, providing for management of all operations
of the Project by MGM or its Affiliate in the form attached hereto as Exhibit E.



     “Operations Manager” shall have the meaning ascribed to it in the Operations Management
Agreement.



     “Party” or “Parties” means MGM, DW, individually or collectively, as appropriate, and their
respective successors and assigns.



     “Passive Member” has the meaning set forth in Section 11.4 hereof.



     “Permitted Liens” means (a) Liens existing on the Signing Date and disclosed to DW either (i)
in written correspondence delivered to DW on or prior to the Signing Date, or (ii) in Nevada Title
Company report dated September 6, 2006, No. 05-12-0916-MME and Nevada Title Company report dated
July 3, 2006, No. 06-07-0488-DTL, (b) Liens on the any property to secure all or part of the cost
of improvements or construction thereon, (c) Liens resulting from Liens to any governmental entity,
including, but not limited to, pollution control or industrial revenue bond financing, (d) Liens
required by any contract or statute in order to perform any contract or subcontract made with or at
the request of a governmental entity, (e) mechanic’s materialmen’s carrier’s or other like Liens
arising in the ordinary course of business, (f) Liens consisting of zoning or planning
restrictions, easements, rights of way, encroachments, conflicts, discrepancies, overlapping of
improvements, protrusions, permits and other restrictions or limitations on the use of real
property or irregularities in title thereto which do not materially detract from the value of, or
impair the use of, such property in the operation of its business, (g) Liens that are de minimis in
nature or amount, (h) Liens for current taxes, assessments, fees, levies and similar charges
imposed by any federal, state or local taxing authority, including, without limitation, interest,
penalties and additions thereto, and (i) security interests granted by a Delinquent Member pursuant
to Section 3.4(a)(v) hereof.



     “Permitted Transfer” has the meaning set forth in Section 11.2 of this Agreement.



     “Permitted Transferee” means, (i) in the case of MGM:  any person or entity, one
hundred percent (100%) of the voting stock or beneficial ownership of which is owned directly or
indirectly, including through subsidiaries, by MGM MIRAGE, and (ii) in the case of DW: 



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any person or entity, one hundred percent (100%) of the voting stock or beneficial ownership
of which is owned directly or indirectly, including through subsidiaries, by DW.




     “Person” means any natural person, corporation, limited liability company, firm, partnership,
joint venture, association, joint-stock company, trust, unincorporated organization, governmental
or quasi-governmental entity or other entity of similar nature.



     “Plans” means, at any time, the plans and specifications for the construction of the Project,
together with all additions, modifications, supplements, addenda, and change orders thereto and
thereof, in each event Approved by the Board of Directors in accordance with Section 7.9 and 9.3
hereof.



     “Post-Closing Adjustment Amount” has the meaning set forth in Section 3.2(b)(iii)(4)(D)
hereof.



     “Post-Closing Development Cost Adjustment” has the meaning set forth in Section
3.2(b)(iii)(4)(A) hereof.



     “Post-Closing Residential Proceeds Adjustment” has the meaning set forth in Section
3.2(b)(iii)(4)(C) hereof.



     “Post-Closing Statement” has the meaning set forth in Section 3.2(b)(iii)(3) hereof.



     “Pre-Closing Adjustment Amount” has the meaning set forth in Section 3.2(b)(iii)(2)(D) hereof.



     “Pre-Closing Development Cost Adjustment” has the meaning set forth in Section
3.2(b)(iii)(2)(A) hereof.



     “Pre-Closing Residential Proceeds Adjustment” has the meaning set forth in Section
3.2(b)(iii)(2)(B) hereof.



     “Pre-Financing Reserve” has the meaning set forth in Section 3.2(b)(iv) hereof.



     “People Mover” has the meaning set forth in Section 4.9 hereof.



     “Prime Rate” means the “U.S. prime rate” published in the “Money Rates” or equivalent section
of the Western Edition of The Wall Street Journal, provided that if a “prime rate” range is
published by The Wall Street Journal, then the highest rate of that range will be used, or if The
Wall Street Journal ceases publishing a prime rate or a prime rate range, then the Managing Member
will select a prime rate, a prime rate range or another substitute interest rate index that is
based upon comparable information.



     “Profit Interest” has the meaning set forth in Section 3.4(b)(i) hereof.



     “Profits” has the meaning set forth in Section 5.1 hereof.



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     “Project” means the development known as CityCenter located in the County of Clark, State of
Nevada, which is to consist of the Project Components.



     “Project Assets” means all real, personal and intangible property related to or used in
connection with any business, operation, enterprise or development that is the Project, but
excluding all real, personal and intangible property related to or used in connection with any
business, operation, enterprise or development that is not the Project. A description of a portion
of the property comprising the Project Assets is set forth in Exhibit C.



     “Project Components” means the elements of the Project described on Exhibit A attached hereto.



     “Project Owner” has the meaning set forth in the Preamble.



     “Projected Construction Budget Cost” has the meaning set forth in Section 3.2(b)(v)(4)(E)
hereof.



     “Projected Net Construction Budget” has the meaning set forth in Section 3.2(b)(v)(4)(F)
hereof.



     “Projected Pre-Opening Costs” has the meaning set forth in Section 3.2(b)(v)(4)(S) hereof.



     “Projected Residential Sales” has the meaning set forth in Section 3.2(b)(v)(4)(G) hereof.



     “Qualified Condo Units” has the meaning set forth in Section 3.2(b)(v)(4)(P) hereof.



     “Quarterly Payment Notice” has the meaning set forth in Section 3.2(b)(v)(2) hereof.



     “Regulations” means the Treasury Regulations promulgated under the Code.



     “Regulatory Allocations” has the meaning set forth in Section 5.5 hereof.



     “Representative” has the meaning set forth in Section 9.1 hereof.



     “Reserve Distribution” has the meaning set forth in Section 3.2(b)(iv) hereof.



     “Sales Expenses” with respect to any residential units within the Project Components, shall
mean the sales commission and marketing expense related to the sale of such unit.



     “Scope Change Cost” has the meaning set forth in Section 3.2(b)(v)(4)(J) hereof.



     “Scope Delay Days” has the meaning set forth in Section 3.2(b)(v)(4)(N) hereof.



     “Selling Member” has the meaning set forth in Section 11.8(a) hereof.



     “Signing Date” has the meaning set forth in the Recitals.



13









 





     “Subsequent Capital Contribution” has the meaning set forth in Section 3.3 hereof.



     “Subsidiary” has the meaning set forth in Section 1.10 hereof.



     “Tag-Along Notice” has the meaning set forth in Section 11.8(b) hereof.



     “Tagging Member” has the meaning set forth in Section 11.8(b) hereof.



     “Tax Matters Partner” has the meaning set forth in Section 7.4 hereof.



     “Title Policy” has the meaning set forth in Section 3.2(b) hereof.



     “Transfer” means, with respect to a Unit, to directly or indirectly sell, assign, transfer,
give, donate, pledge, hypothecate, deposit, alienate, bequeath, devise or otherwise dispose of or
encumber such Unit. Notwithstanding the foregoing definition of Transfer, the following are not
considered Transfers:




     (a) the transfer of interests (in one or more transactions) of an entity that owns,
directly or indirectly, any Units if:  (A) the value of the Units held, directly or
indirectly, by such entity does not exceed 50% of the fair market value of the total assets
of such entity; and (B) the transferor continues to consolidate with the entity for
financial reporting purposes; and




     (b) an offering of securities by, or a change of control of, MGM MIRAGE.



     “Transfer Breach” has the meaning set forth in Section 13.1(a) hereof.



     “Transferee” means a Person to whom a Transfer is made.



     “True Proceeds” has the meaning set forth in Section 4.10(a) hereof.



     “Unauthorized Action” has the meaning set forth in Section 9.1 hereof.



     “Unit” has the meaning set forth in Section 3.1 hereof.



     “Unreturned Investment” for a Member at any given time shall mean the aggregate amount of such
Member’s Capital Contribution made up to that time less the aggregate amount of
distributions made to such Member by the Company up to that time.



     “Updated Pre-Closing Development Cost Estimate” shall mean the update of the estimated
aggregate Development Costs paid by MGM and its Affiliates during the period beginning with the
inception of the Project and ending on the Closing Date and set forth in the Updated Pre-Closing
Statement.



     “Updated Pre-Closing Residential Proceeds Estimate” shall mean the update of the estimated
amount of (A) the actual cash proceeds received by MGM or its Affiliates, excluding any cash
proceeds returned or refunded, from the sale or a contract to sell any residential units in the
Project Components since the inception of the Project to the Closing Date less (B) the Sales
Expenses related to such condominium units.



14









 





     “Updated Pre-Closing Statement” has the meaning set forth in Section 3.2(b)(iii)(1) hereof.



     “Updated Pre-Opening Cost Estimate” shall mean the update of the estimated aggregate
pre-opening and start-up expenses paid by MGM and its Affiliates during the period beginning with
the inception of the Project and ending on the Closing Date and set forth in the Updated
Pre-Closing Statement.”



     (C) ARTICLE 2




	 	(i)	 	     by replacing the phrase “Members on behalf of the Company
(collectively, the “Indemnified Parties”) with the phrase “Members on behalf of the
Company (each, an “Indemnified Party” and collectively, the “Indemnified Parties”)”
in Section 2.5(a) of the Agreement.





     (D) ARTICLE 3




	 	(i)	 	     by replacing the phrase “insuring fee simple title or leasehold, as
applicable, to all real property of the Project” with the phrase “insuring fee
simple or leasehold title, as applicable, to all real property of the Project” in
Section 3.2(b)(ii)(7) of the Agreement.
	 
	 	(ii)	 	     by replacing the phrase “showing the location of all buildings,
easements, encroachments and the property lines;” with the phrase “showing the
location of all buildings, easements, encroachments and property lines;” in Section
3.2(b)(ii)(8) of the Agreement.
	 
	 	(iii)	 	     by replacing the phrase “all real property of the Project Assets” with
the phrase “all real property comprising the Project Assets” in Section
3.2(b)(ii)(11) of the Agreement.
	 
	 	(iv)	 	     by replacing the phrase “Initial Cash Distribution” with the phrase
“initial distribution described in Section 6.1” in the third sentence of Section
3.2(b)(iv) of the Agreement.
	 
	 	(v)	 	     by replacing Section 3.2(b)(v) of the Agreement with the following:





               “(v) Contingent Value Adjustment.



                    (1) Promptly following the date of determination of the actual Development Costs (the “Initial
Adjustment Date”), DW shall make an additional Capital Contribution, and the Company shall
distribute to MGM (“Initial Contingent Value Adjustment Distribution”), in such amount of
immediately available cash equal to fifty percent (50%) of the Initial Contingent Value
Adjustment.”



                    (2) To the extent that the Initial Contingent Value Adjustment Distribution is less than one
hundred million dollars ($100,000,000) and the Company actually



15









 




receives Net Qualified Residential Sales Proceeds after the Initial Adjustment Date, the Company
shall (i) if the Base Initial Contingent Value Adjustment is less than zero, first retain the Net
Qualified Residential Sale Proceeds up to the amount by which the Base Initial Contingent Value
Adjustment is less than zero, and (ii) then, subject to Section 3.2(b)(v)(3) hereof, distribute to
MGM no later than ten (10) Business Days following the delivery of the applicable Quarterly Payment
Notice (as defined below) all of the Net Qualified Residential Sale Proceeds in excess of the Net
Qualified Residential Sale Proceeds retained by the Company pursuant to Section 3.2(b)(v)(2)(i), if
any, received during the corresponding calendar quarter. In the event that Net Qualified
Residential Sale Proceeds are distributable to MGM under this Section 3.2(b)(v) hereof during any
calendar quarter, the Managing Member shall deliver to each Member a report setting forth the
calculation of the Net Qualified Residential Sale Proceeds payable to MGM for such quarter no later
than fifteen (15) days following the end of such calendar quarter (a “Quarterly Payment Notice”).




                    (3) (A) In the event that Net Qualified Residential Sale Proceeds are distributable to MGM
during any calendar quarter under Section 3.2(b)(v)(2) above, DW may elect to make an additional
Capital Contribution, and the Company shall distribute to MGM in lieu of distribution to
MGM of the Net Qualified Residential Sale Proceeds otherwise required to be distributed to MGM
pursuant to Section 3.2(v)(2) hereof for such calendar quarter, each in such amount of immediately
available cash equal to fifty percent (50%) of the Net Qualified Residential Sale Proceeds received
by the Company during such calendar quarter (the “Alternative CVA Distribution”); provided,
however, that, such election shall be deemed made by DW only if DW provides a written notice of
such election to the Managing Member no later than ten (10) Business Days following the delivery of
the applicable Quarterly Payment Notice and makes such additional Capital Contribution no later
than five (5) Business Days following the delivery of such Notice from DW.



                         (B) Notwithstanding anything in this Agreement to the contrary, the distributions to MGM in
respect of the sum of (i) the Initial Contingent Value Adjustment Distribution, (ii) fifty percent
(50%) of the aggregate Net Qualified Residential Sale Proceeds actually distributed to MGM by the
Company pursuant to Section 3.2(b)(v)(2) hereof, and (iii) the Alternative CVA Distribution
actually distributed to MGM pursuant to Section 3.2(b)(v)(3)(A) hereof, shall not exceed one
hundred million dollars ($100,000,000). The initial Gross Asset Value of MGM’s Initial Capital
Contribution shall be increased by (i) two hundred percent (200%) of the Initial Contingent Value
Adjustment Distribution, (ii) one hundred percent (100%) of the Net Qualified Residential Sale
Proceeds actually distributed to MGM pursuant to Section 3.2(b)(v)(2) hereof, and (iii) two hundred
percent (200%) of the Alternative CVA Distribution actually distributed to MGM pursuant to Section
3.2(b)(v)(3)(A) hereof.



                    (4) For the purposes of this Agreement,



                              (A) “Accounted Condo Units” shall mean residential units, in each case, within the
Project Components, sold or subject to an executed purchase agreement on or prior to the Initial
Adjustment Date,



                              (B) “Actual Pre-Opening Costs” shall mean the actual aggregate pre-opening and
start-up expenses to be paid during the period beginning with the



16









 







inception of the Project and ending on the date of the opening of the Project, provided,
however the definition of “Actual Pre-Opening Costs” set forth in this Section 3.2(b)(v)(4)(T)
shall only apply to such term as used in Sections 3.2(b)(iii) and 3.2(b)(v),



                              (C) “Actual Residential Sales” shall mean (A) the aggregate sales price, whether paid
or payable, from Accounted Condo Units less (B) the Sales Expenses related to such condominium
units,



                              (D) “Base Initial Contingent Value Adjustment” shall mean such amount equal to two
hundred million dollars ($200,000,000) less the Construction Budget Adjustment less the Casino CO
Delay Adjustment.



                              (E) “Casino CO Delay Adjustment” shall mean the amount equal to the multiple of (A)
one million dollars ($1,000,000) and (B) the greater of (1) zero and (2) the number equal to (x)
the number of days, if any, after December 31, 2009 on which the temporary certificate of occupancy
is filed for the Cesar Pelli-designed resort casino within the Project less (y) the Excluded Delay
Days,



                              (F) “Construction Budget Adjustment” shall mean the amount, if any, by which the Net
Development Costs exceeds the Projected Net Construction Budget,



                              (G) “Contingent Value Adjustment Distribution” shall mean the sum of the Initial
Contingent Value Adjustment Distribution, all Net Qualified Residential Sale Proceeds actually
distributed to MGM pursuant to Section 3.2(b)(v)(2) herof, and all Alternative CVA Distribution
actually distributed to MGM pursuant to Section 3.2(b)(v)(3)(A) hereof,



                              (H) “DW Delay Days” shall mean the number of days that the construction or development
of the Cesar Pelli-designed resort casino within the Project was delayed as a result of (A) the
Representatives of DW failing to approve or consider proposals, to the extent that approval of such
proposals is reasonably necessary for the development or construction of such resort casino and to
the extent that such proposals are subject to approval by the Board of Directors or (B) a breach by
DW of the Agreement,



                              (I) “Excluded Delay Days” shall mean the sum of the Force Majeure Delay Days, the DW
Delay days and the Scope Delay Days,



                              (J) “Force Majeure Delay Days” shall mean the number of days that the construction or
development of the Cesar Pelli-designed resort casino within the Project was delayed as a result of
Force Majeure,



                              (K) “Initial Contingent Value Adjustment” shall mean an amount equal to the greater of
(A) Zero Dollars ($0.00) and (B) the Base Initial Contingent Value Adjustment,



17









 





                              (L) “Net Development Costs” shall mean the actual Development Costs plus Actual
Pre-Opening Costs less Actual Residential Sales less Scope Change Cost,



                              (M) “Net Qualified Residential Sale Proceeds” shall mean the sales price for sale of
Qualified Condo Units less the Sales Expenses related to such Qualified Condo Units,



                              (N) “Projected Construction Budget Cost” shall mean the amount indicated in Exhibit I
and as set forth in the Construction Budget provided to DW prior to the Signing Date and agreed to
by the Members upon the Signing Date,



                              (O) “Projected Net Construction Budget” shall mean the Projected Construction Budget
Cost plus the Projected Pre-Opening Costs less the Projected Residential Sales, and agreed to by
the Members upon the Signing Date,



                              (P) “Projected Pre-Opening Costs” shall mean the amount indicated in Exhibit I and is
the estimated aggregate pre-opening and start-up expenses to be paid during the period beginning
with the inception of the Project and ending on the date of the opening of the Project,



                              (Q) “Projected Residential Sales” shall mean the amount indicated in Exhibit I and is
the aggregate sales proceeds estimated from the projected sale of all of the residential units
within the Project Components since the beginning of the inception of the Project less aggregate
Sales Expenses as agreed to by the Members upon the Signing Date,



                              (R) “Qualified Condo Units” shall mean all residential units, other than Accounted
Condo Units, within the Project Components,



                              (S) “Scope Change Cost” shall mean the Development Cost resulting from any change in
the scope of the Project approved by the Board of Directors,



                              (T) “Scope Delay Days” shall mean the number of days that the construction or
development of the Cesar Pelli-designed resort casino within the Project was delayed as a result of
a scope change in the Project approved by the Board of Directors,




	 	(vi)	 	by replacing the phrase “(the “Lending Member”, whether one or more)”
with the phrase “(the “Lending Member,” whether one or more)” in Section 3.4(a) of
the Agreement.
	 
	 	(vii)	 	by replacing the phrase “(the “Non-Delinquent Member”, whether one or
more)” with the phrase “(the “Non-Delinquent Member,” whether one or more)” in
Section 3.4(b) of the Agreement.
	 
	 	(viii)	 	by replacing the second sentence of Section 3.4(b)(i) of the Agreement with the
sentence: “The resulting Profit Interest of the Non-Delinquent Member






18












 






	 	 	 	shall be the number of percentage points (rounded to the nearest one hundredth of a
percentage point) determined in accordance with the following formula:“ 
	 
	 	(ix)	 	     by replacing the last sentence of Section 3.4(b)(i) of the Agreement
with the sentence: “The initial “Profit Interest” of MGM and DW immediately
following the Closing Date shall each be 50%. The Company shall not issue Units to
any Member solely to reflect any increase in any Member’s Profit Interest, and a
Member’s Interest shall not be deemed to increase or decrease solely as a result of
an increase or decrease in the Member’s Profit Interest.”
	 
	 	(x)	 	     by replacing the word “a” with the word “an” in the third sentence of
Section 3.8(a)(i) of the Agreement.
	 
	 	(xi)	 	     by adding the phrase “Profit Interests or” immediately after the phrase
“the acquisition of additional” in Section 3.8(a)(ii)(i) of the Agreement.
	 
	 	(xii)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(g)” with the term
“Section 1.704-1(b)(2)(ii)(g)” in Section 3.8(a)(ii)(iii) of the Agreement.
	 
	 	(xiii)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(g)” with the term “Section
1.704-1(b)(2)(ii)(g)” in Section 3.8(a)(iv) of the Agreement.
	 
	 	(xiv)	 	     by replacing the term “Depreciation” with the word “depreciation” in
Section 3.8(a)(v) of the Agreement.
	 
	 	(xv)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(g)” with the term
“Section 1.704-1(b)(2)(ii)(g)” in Section 3.8(c) of the Agreement.





     (E) ARTICLE 4




	 	(i)	 	     by adding the word “be” immediately after the phrase “The terms of such
Lease Agreement shall” in the second sentence of Section 4.2(b) of the Agreement.
	 
	 	(ii)	 	     by replacing the term “Section 4.2I” with the term “Section 4.2(c)(ii)”
in the second sentence of Section 4.2(c)(ii) of the Agreement.
	 
	 	(iii)	 	     by replacing the section heading “Development Agreement:” with
the section heading “Development Agreement.” in Section 4.6 of the
Agreement.
	 
	 	(iv)	 	     by removing the phrase “and which will not be included in determining
Development Costs” immediately following the phrase “which will not be included in
the Construction Budget” in Section 4.9 of the Agreement.
	 
	 	(v)	 	     by renumbering the subsections “(a)”, “(b)” and “(c)” in Section 4.10
of the Agreement.





19









 






	 	(vi)	 	     by replacing the phrase “the Condo Sales” with the phrase “sales of
residential units, in each case, within the Project Components” in the first
sentence of Section 4.10 of the Agreement.
	 
	 	(vii)	 	     by adding the phrase “in the amount” immediately after the phrase “the
distribution of the MGM Additional Contribution” in third sentence of Section
4.10(c) of the Agreement.





     (F) ARTICLE 5




	 	(i)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(d)(4)” with the term
“Section 1.704-1(b)(2)(ii)(d)(4)” in the first sentence of Section 5.3 of the
Agreement.
	 
	 	(ii)	 	     by replacing the phrase “Section 1.704 2(g)(1) and 1.704 2(i)(5)” with
the phrase “Section 1.704-2(g)(1) and 1.704-2(i)(5)” in Section 5.6(a)(i) of the
Agreement.
	 
	 	(iii)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(d) with the term
“Section 1.704-1(b)(2)(ii)(d)” in Section 5.6(a)(ii) of the Agreement.
	 
	 	(iv)	 	     by replacing the term “Section 1.704 1(b)(2)(ii)(d) with the term
“Section 1.704-1(b)(2)(ii)(d)” in the second paragraph of Section 5.6(a)(ii) of the
Agreement.
	 
	 	(v)	 	by replacing the section heading “Section 704I Tax
Allocations.” with the section heading “Section 704(c) Tax
Allocations.” in Section 5.7 of the Agreement.
	 
	 	(vi)	 	     by replacing the term “Code Section 704I” with the term “Code Section
704(c)” in the first sentence of Section 5.7 of the Agreement.
	 
	 	(vii)	 	     by replacing the term “Regulations Section 1.706-1I(2)(ii)” with the
term “Regulations Section 1.706-1(c)(2)(ii)” in the first sentence of Section 5.8
of the Agreement.
	 
	 	(viii)	 	     by replacing the phrase “for the term “Partnership”,” with the phrase “for the
term “Partnership,”” in Section 5.9 of the Agreement.





     (G) ARTICLE 6




	 	(i)	 	     by replacing the phrase “interest payments on the Construction
Financing and other Company indebtedness” with the phrase “interest payments on the
Financing of the construction of the Project and other Company indebtedness” in
Section 6.3(i) of the Agreement
	 
	 	(ii)	 	     by revising Section 6.4 of the Agreement to read as follows:





20









 





     “Distribution of Distributable Cash. Distributable Cash with respect to the Company
for each fiscal quarter shall be distributed:



          (a) First, to the extent that (i) the Members made Subsequent Capital Contribution to fund
Development Costs, (ii) the Net Qualified Residential Sale Proceeds required to be distributed to
MGM under Section 3.2(b)(v)(2) for the applicable fiscal quarter have been distributed to MGM, and
(iii) such distribution will not result in a default or a breach of any Financing Document, to the
Members, pro rata in proportion to their respective Profit Interests until each Member has received
distribution pursuant to this Section 6.4(a) in an amount equal to the amount of such Subsequent
Capital Contribution made by such Member;




          (b) Then, in accordance with the Business Plan or as Approved by the Board of Directors, in
the following order of priority:



(A) first, to the Members to repay amounts, if any, lent by them to the Company, to the extent
permissible, including any payments made by such Member to any lender in connection with any
liability assumed on behalf of the Company, any such payments to be made on a pro rata basis
according to the then outstanding balances of such loans or payments on account of credit
enhancements, with such payments applied first against accrued interest; and



(B) the balance, if any, to the Members, pro rata in proportion to their respective Profit
Interests.”




     (H) ARTICLE 7




	 	(i)	 	     by replacing the word “‘tax matters partner’” with the term “‘Tax
Matters
Partner’” in the first sentence of Section 7.4 of the Agreement.
	 
	 	(ii)	 	     by replacing the phrase “‘Initial Business Plan’.” with the phrase
“‘Initial Business Plan.’” in the second sentence of Section 7.9 of the Agreement.
	 
	 	(iii)	 	     by replacing the term “‘Board of Directions’” with the term “‘Board of
Directors’” in the last sentence of Section 7.9 of the Agreement.





     (I) ARTICLE 8




	 	(i)	 	     by replacing the section heading “Intellectual property.” with
the section heading “Intellectual Property.” in Section 8.2 of the
Agreement.





     (J) ARTICLE 9




	 	(i)	 	     by adding the words “of Directors” immediately following the phrase
“Either Member may call a meeting of the Board” in the second sentence of Section
9.1(c) of the Agreement.
	 
	 	(ii)	 	     by adding a semicolon to the end of Section 9.3(a)(xix).





21









 




     (K) ARTICLE 10





	 	(i)	 	     by adding the word “Capital” immediately after the phrase “or otherwise
encumber the Initial” in Section 10.1(q) of the Agreement.
	 
	 	(ii)	 	     by adding the word “Capital” immediately after the phrase “”including
any equity interest of an entity that would be included in the Initial”, in Section
10.1(q) of the Agreement.
	 
	 	(iii)	 	     by removing the word “and” immediately after the phrase “any of its
Affiliates respecting the Project;” in Section 10.1(v) of the Agreement.
	 
	 	(iv)	 	     by replacing the period with a semicolon at the end of Section 10.1(w).
	 
	 	(v)	 	     by replacing the phrase “by any applicable labor union.” with the
phrase “by any applicable labor union; and” in Section 10.1(x) of the Agreement.
	 
	 	(vi)	 	     by removing the section heading “Section 10.3” in Article 10 of the
Agreement.
	 
	 	(vii)	 	     by removing the phrase “which representations and warranties,”
immediately after the phrase “DW hereby represents and warrants,” in the second
paragraph of Section 10.2 of the Agreement.
	 
	 	(viii)	 	     by replacing the word “The” with the word “the” in Section 10.2(b) of the
Agreement.
	 
	 	(ix)	 	     by removing the word “and” immediately after the phrase “of this
Agreement as to DW;” in Section 10.2(f) of the Agreement.
	 
	 	(x)	 	     by replacing the period with a semicolon at the end of Section 10.2(g)
of the Agreement.
	 
	 	(xi)	 	     by replacing the period with a semicolon at the end of Section 10.2(i)
of the Agreement.
	 
	 	(xii)	 	     by replacing section heading “Section 10.4” with section heading
“Section 10.3” in Article 10 of the Agreement.





     (L) ARTICLE 11




	 	(i)	 	     by replacing the term “Transferor” with the word “transferor” in the
third sentence of Section 11.5 of the Agreement.





     (M) ARTICLE 13




	 	(i)	 	     by replacing the term “Non Defaulting Member” with the term
“Non-Defaulting Member” in Section 13.2(a) of the Agreement.
	 
	 	(ii)	 	     by replacing the phrase “Sections 4.2(c)(ii) or 13.5” with the phrase
“Section 4.2(c)(ii) or Section 13.5” in Section 13.2(b) of the Agreement.





22









 






	 	(iii)	 	     by adding the term “Business Days” immediately after the phrase
“Within fifteen (15) in the third sentence of Section 13.3(a)(iii) of the
Agreement.
	 
	 	(iv)	 	     by replacing the term “Non Defaulting Member” with the term
“Non-Defaulting Member” in the first sentence of Section 13.5(a) of the Agreement.
	 
	 	(v)	 	     by replacing the term “Party” with the term “Member” in the second
sentence of Section 13.5(a) of the Agreement.
	 
	 	(vi)	 	     by replacing the term “non defaulting Member” with the term
“Non-Defaulting Member in the ninth sentence of Section 13.5(a) of the Agreement.
	 
	 	(vii)	 	     by replacing the term “non defaulting Member” with the term
“Non-Defaulting Member in the twelfth sentence of Section 13.5(a) of the Agreement.





     (N) ARTICLE 15




	 	(i)	 	     by replacing the term “Infinity” with the term “DW” in the first
sentence of Section 15.21(b) of the Agreement.
	 
	 	(ii)	 	     by revising Section 15.22 of the Agreement to read as follows:






     WAIVER OF TRIAL BY JURY. THE MEMBERS TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED
WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE MEMBERS HERETO WITH RESPECT
TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE.



     (O) EXHIBITS




	 	(i)	 	     by increasing the size of the heading numbers from 10 point font to 12
point font in Exhibit C to the Agreement.
	 
	 	(ii)	 	     by revising Exhibit G to the Agreement to read as follows:





“Representatives Appointed by MGM:





	-	 	J. Terrence Lanni
	 
	-	 	James J. Murren
	 
	-	 	Robert H. Baldwin




23









 











Representatives Appointed by DW:





	-	 	Chris O’Donnell
	 
	-	 	Kar Tung Quek
	 
	-	 	Lai Boon Yu”





     (P) TABLE OF CONTENTS




	 	(i)	 	by adding a table of contents immediately following Exhibit J to the
Agreement. The table of contents shall read as follows:





	 	 	 	 	 
	“ARTICLE 1 THE COMPANY
	 	 	2	 
	 
	Section 1.1 Organization
	 	 	2	 
	Section 1.2 Name
	 	 	2	 
	Section 1.3 Place of Business
	 	 	2	 
	Section 1.4 Business of the Company
	 	 	2	 
	Section 1.5 Purposes Limited
	 	 	2	 
	Section 1.6 No Payments of Individual Obligations
	 	 	2	 
	Section 1.7 Statutory Compliance
	 	 	2	 
	Section 1.8 Title to Property
	 	 	3	 
	Section 1.9 Duration
	 	 	3	 
	Section 1.10 Conduct of Business Through Single Purpose Entities
	 	 	3	 
	Section 1.11 Definitions
	 	 	3	 
	 
	ARTICLE 2 THE MEMBERS
	 	 	16	 
	 
	Section 2.1 Identification
	 	 	16	 
	Section 2.2 Services of Members
	 	 	16	 
	Section 2.3 Reimbursement and Fees
	 	 	16	 
	Section 2.4 Transactions with Affiliates
	 	 	16	 
	Section 2.5 Liability of the Members; Indemnification
	 	 	16	 
	 
	ARTICLE 3 CAPITAL CONTRIBUTIONS; LOANS; CAPITAL ACCOUNTS
	 	 	18	 
	 
	Section 3.1 Issuance of Units
	 	 	18	 
	Section 3.2 Initial Capital Contributions by the Members
	 	 	18	 
	Section 3.3 No Further Capital Contributions
	 	 	25	 
	Section 3.4 Failure to Make a Capital Contribution
	 	 	25	 
	Section 3.5 Additional Remedies for Failure to Make a Capital Contribution
	 	 	29	 
	Section 3.6 Capital Accounts
	 	 	29	 
	Section 3.7 Return of Capital
	 	 	30	 
	Section 3.8 Gross Asset Value
	 	 	31	 
	 
	ARTICLE 4 COVENANTS
	 	 	32	 
	 
	Section 4.1 Financing
	 	 	32	 
	Section 4.2 Licensing
	 	 	32	 






24









 






	 	 	 	 	 
	Section 4.3 Maintenance of the Project
	 	 	35	 
	Section 4.4 Ancillary Agreements
	 	 	36	 
	Section 4.5 FAA Determination Letters
	 	 	36	 
	Section 4.6 Development Agreement
	 	 	36	 
	Section 4.7 HSR Act
	 	 	36	 
	Section 4.8 DW Notification Obligation
	 	 	36	 
	Section 4.9 People Mover Construction Obligation
	 	 	36	 
	Section 4.10 Income Tax on Condominiums
	 	 	37	 
	Section 4.11 Closing Date Balance Sheet
	 	 	37	 
	 
	ARTICLE 5 ALLOCATION OF PROFITS AND LOSSES
	 	 	38	 
	 
	Section 5.1 Allocation of Profits and Losses
	 	 	38	 
	Section 5.2 Minimum Gain Chargeback Allocation Provisions
	 	 	38	 
	Section 5.3 Qualified Income Offset
	 	 	39	 
	Section 5.4 Nonrecourse Deductions
	 	 	39	 
	Section 5.5 Curative Allocations
	 	 	39	 
	Section 5.6 Limitation on Losses
	 	 	40	 
	Section 5.7 Section 704 Tax Allocations
	 	 	40	 
	Section 5.8 Allocations Between Transferor and Transferee
	 	 	41	 
	Section 5.9 Regulations Interpretation
	 	 	41	 
	 
	ARTICLE 6 NON LIQUIDATING DISTRIBUTIONS
	 	 	41	 
	 
	Section 6.1 Initial Distribution
	 	 	41	 
	Section 6.2 Tax Distribution
	 	 	41	 
	Section 6.3 Distributable Cash
	 	 	42	 
	Section 6.4 Distribution of Distributable Cash
	 	 	42	 
	 
	ARTICLE 7 ACCOUNTING AND RECORDS; CAPITAL BUDGETS
	 	 	42	 
	 
	Section 7.1 Books and Records
	 	 	42	 
	Section 7.2 Reports
	 	 	43	 
	Section 7.3 Tax Returns
	 	 	44	 
	Section 7.4 Tax Matters Partner
	 	 	44	 
	Section 7.5 Fiscal Year
	 	 	44	 
	Section 7.6 Bank Accounts
	 	 	44	 
	Section 7.7 Tax Elections
	 	 	45	 
	Section 7.8 [Reserved.]
	 	 	45	 
	Section 7.9 Business Plan and Budgets
	 	 	45	 
	Section 7.10 Ownership Ledger
	 	 	47	 
	 
	ARTICLE 8 CONFIDENTIALITY; INTELLECTUAL PROPERTY
	 	 	47	 
	 
	Section 8.1 Confidential Treatment of Information
	 	 	47	 
	Section 8.2 Intellectual Property
	 	 	48	 
	 
	ARTICLE 9 MANAGEMENT
	 	 	48	 
	 
	Section 9.1 General
	 	 	48	 
	Section 9.2 Management by Managing Member
	 	 	50	 
	Section 9.3 Exclusive Powers of the Board of Directors
	 	 	50	 






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	Section 9.4 Replacement of Managing Member
	 	 	53	 
	 
	ARTICLE 10 REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	 
	Section 10.1 MGM
	 	 	53	 
	Section 10.2 DW
	 	 	57	 
	Section 10.3 Brokers
	 	 	58	 
	 
	ARTICLE 11 TRANSFER OF UNITS
	 	 	59	 
	 
	Section 11.1 Restrictions on Transfers
	 	 	59	 
	Section 11.2 Permitted Transfers
	 	 	59	 
	Section 11.3 Conditions to Transfers
	 	 	59	 
	Section 11.4 Prohibited Transfers
	 	 	60	 
	Section 11.5 Distributions and Allocations in Respect of Transferred Units
	 	 	61	 
	Section 11.6 Right of First Offer
	 	 	62	 
	Section 11.7 Indirect Transfers
	 	 	62	 
	Section 11.8 Tag-Along Rights
	 	 	63	 
	 
	ARTICLE 12 GAMING LAWS
	 	 	63	 
	 
	Section 12.1 Qualifications
	 	 	63	 
	 
	ARTICLE 13 EVENTS OF DEFAULT
	 	 	64	 
	 
	Section 13.1 Events of Default
	 	 	64	 
	Section 13.2 Remedies upon Default
	 	 	65	 
	Section 13.3 Indemnification
	 	 	65	 
	Section 13.4 Indemnification by DW
	 	 	66	 
	Section 13.5 Buy Out on Default
	 	 	66	 
	 
	ARTICLE 14 DISSOLUTION AND LIQUIDATION
	 	 	67	 
	 
	Section 14.1 Events of Dissolution
	 	 	67	 
	Section 14.2 Members’ Consent to Continue Business
	 	 	68	 
	Section 14.3 Dissolution and Liquidation
	 	 	68	 
	Section 14.4 Notice of Dissolution
	 	 	69	 
	 
	ARTICLE 15 MISCELLANEOUS PROVISIONS
	 	 	69	 
	 
	Section 15.1 Waiver of Partition and Covenant Not to Withdraw
	 	 	69	 
	Section 15.2 Additional Agreements
	 	 	70	 
	Section 15.3 Notices
	 	 	70	 
	Section 15.4 Amendments
	 	 	72	 
	Section 15.5 Successors and Assigns
	 	 	72	 
	Section 15.6 Time
	 	 	72	 
	Section 15.7 Severability
	 	 	72	 
	Section 15.8 Counterparts
	 	 	72	 
	Section 15.9 Attorneys’ Fees
	 	 	72	 
	Section 15.10 Entire Agreement
	 	 	73	 
	Section 15.11 Further Assurances
	 	 	73	 
	Section 15.12 Headings; Interpretation
	 	 	73	 
	Section 15.13 Exhibits
	 	 	73	 






26









 






	 	 	 	 	 
	Section 15.14 Approvals and Consents
	 	 	73	 
	Section 15.15 Estoppels
	 	 	73	 
	Section 15.16 Compliance with Laws and Contractual Obligations
	 	 	73	 
	Section 15.17 Remedies Cumulative
	 	 	74	 
	Section 15.18 Waiver
	 	 	74	 
	Section 15.19 Governing Law and Choice of Forum
	 	 	74	 
	Section 15.20 Survival of Indemnification Obligations
	 	 	74	 
	Section 15.21 Limited Liability
	 	 	74	 
	Section 15.22 WAIVER OF TRIAL BY JURY
	 	 	75	 






LIST OF EXHIBITS



Exhibit A            Project Components



Exhibit B            Ancillary Agreements



Exhibit C            Partial Description of Project Assets



Exhibit D            Development Management Agreement



Exhibit E            Operations Management Agreement



Exhibit F            Gross Asset Value/Initial Capital Contributions



Exhibit G            Representatives to the Board of Directors



Exhibit H            Material Competitors



Exhibit I            Initial Estimates and Projections



Exhibit J            Construction Budget Summary”




Section 3




     Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the parties under the Agreement. This Amendment shall apply and be effective only with
respect to the provisions of the Agreement specifically referred to herein. On and after the
Amendment Effective Date, each reference in the Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import, shall be deemed a reference to the Agreement as amended
hereby.



Section 4




     Governing Law. This Amendment shall be governed by the laws of the State of Delaware, without
regard to conflict of laws principles.



Section 5




     Counterparts. This Amendment may be executed in two or more counterparts (including



27









 







by facsimile or similar means of electronic communication), each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.



[signature pages follow]




28









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the Limited
Liability Company Agreement as of the date first written above.



	 	 	 	 	 
	 

	 	PROJECT CC, LLC,
	 	 
	 

	 	a Nevada limited liability company	 	 
	 
	 	 	 	 
	 

	 	/s/ Bryan L. Wright	 	 
	 

	 	 	 	 
	 

	 	Name: Bryan L. Wright	 	 
	 

	 	Title: Assistant Secretary	 	 
	 
	 	 	 	 
	 

	 	INFINITY WORLD DEVELOPMENT CORP.,	 	 
	 

	 	a Nevada corporation	 	 
	 
	 	 	 	 
	 

	 	/s/ Chris O’Donnell	 	 
	 

	 	 	 	 
	 

	 	Name: Chris O’Donnell	 	 
	 

	 	Title: President and CEO	 	 
	 
	 	 	 	 
	 

	 	/s/ Abdul Wahid A. Rahim Al Ulama	 	 
	 

	 	 	 	 
	 

	 	Name: Abdul Wahid A. Rahim Al Ulama	 	 
	 

	 	Title: Assistant Secretary	 	 







29