EXHIBIT 4.38
HARRAH’S OPERATING COMPANY,
INC.
as Issuer
HARRAH’S ENTERTAINMENT,
INC.
as Parent Guarantor
AND
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
FIRST SUPPLEMENTAL
INDENTURE
Dated as of July 22,
2009
to
Indenture
Dated as of December 24,
2008
10.00% Second-Priority Senior
Secured Notes due 2018
10.00% Second-Priority Senior
Secured Notes due 2015
THIS FIRST SUPPLEMENTAL INDENTURE,
(this “ Supplemental Indenture ”), dated as of
July 22, 2009 , is by and among Harrah’s
Operating Company, Inc., a Delaware corporation (the “
Company ”), Harrah’s Entertainment, Inc., a
Delaware corporation (the “ Parent Guarantor ”),
and U.S. Bank National Association, as trustee under the indenture
referred to below (the “ Trustee ”)
.
W I T N E S S E T
H
WHEREAS, reference is made to that
certain indenture, dated as of December 24, 2008, between the
Company, the Parent Guarantor and the Trustee (the “
Original Indenture ,” and as further amended and
supplemented hereby, the “ Indenture ”), with
respect to the Company’s 10.00% Second-Priority Senior
Secured Notes due 2018 and 10.00% Second-Priority Senior Secured
Notes due 2015 (collectively, the “ Notes
”);
WHEREAS, in accordance with
Section 9.01 of the Original Indenture, the Company and the
Trustee may amend the Original Indenture without the consent of
holders of Notes to add to the covenants of the Company for the
benefit of holders;
WHEREAS, the Parent Guarantor and
the Company desire to amend the Original Indenture in accordance
with Section 9.01 of the Original Indenture; and
WHEREAS, the execution and delivery
of this Supplemental Indenture has been duly authorized by the
parties hereto, and all other acts necessary to make this
Supplemental Indenture a valid and binding supplement to the
Original Indenture effectively amending the Original Indenture as
set forth herein have been duly taken.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company, the Parent Guarantor and the Trustee mutually covenant and
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized
Terms . Capitalized
terms used herein without definition shall have the meanings
ascribed to them in the Indenture. Unless the context otherwise
requires, all references to the Indenture shall mean the Indenture
as supplemented hereby.
ARTICLE II
AMENDMENTS
Section 2.1
Amendments to the Original
Indenture .
(a) Section 1.01 of the
Original Indenture is hereby amended by adding thereto the
following definitions, which shall be inserted in proper
alphabetical order.
1
“ Exchanged
Indebtedness ” means unsecured indebtedness of the Issuer
or any of its Restricted Subsidiaries that has been issued in
exchange for any of the Existing Notes or in exchange for any such
Exchanged Indebtedness.
“ New Second Lien Notes
” means the Issuer’s 10.00% Second-Priority Senior
Secured Notes due 2018 issued pursuant to the New Second Lien Notes
Indenture.
“ New Second Lien Notes
Indenture ” means the indenture dated as of
April 15, 2009, by and among the Issuer, Harrah’s
Entertainment and U.S. Bank National Association as
Trustee.
“ New Second Lien Notes
Issue Date ” means April 15, 2009.
“ Sponsor Indebtedness
” means Indebtedness issued to any of the Sponsors for cash
proceeds by the Issuer or any of its Restricted Subsidiaries after
the Issue Date or any indebtedness issued under the Real Estate
Facility held by any Sponsor.
“ Total Secured Leverage
Ratio ” means, with respect to any Person, at any date
the ratio of (i) Secured Indebtedness (other than Qualified
Non-Recourse Debt and Indebtedness secured by Liens that are junior
in priority to the Liens securing the Notes) of such Person and its
Restricted Subsidiaries as of such date of calculation (determined
on a consolidated basis in accordance with GAAP) less the amount of
cash and Cash Equivalents in excess of any Restricted Cash held by
such Person and its Restricted Subsidiaries as of such date of
determination to (ii) EBITDA of such Person for the four full
fiscal quarters for which internal financial statements are
available immediately preceding such date on which such additional
Indebtedness is Incurred. In the event that the Issuer or any of
its Restricted Subsidiaries Incurs, repays, repurchases or redeems
any Indebtedness subsequent to the commencement of the period for
which the Total Secured Leverage Ratio is being calculated but
prior to the event for which the calculation of the Total Secured
Leverage Ratio is made (the “ Total Secured Leverage
Calculation Date ”), then the Total Secured Leverage
Ratio shall be calculated giving pro forma effect to such
Incurrence, repayment, repurchase or redemption of Indebtedness as
if the same had occurred at the beginning of the applicable
four-quarter period; provided that the Issuer may elect pursuant to
an Officer’s Certificate delivered to the Trustee to treat
all or any portion of the commitment under any Indebtedness as
being Incurred at such time, in which case any subsequent
Incurrence of Indebtedness under such commitment shall not be
deemed, for purposes of this calculation, to be an Incurrence at
such subsequent time.
For purposes of making the
computation referred to above, Investments, acquisitions,
dispositions, mergers, amalgamations, consolidations (including the
Acquisition Transactions) and discontinued operations (as
determined in accordance with GAAP), in each case with respect to
an operating unit of a business, and any operational changes that
the Issuer or any of its Restricted Subsidiaries has determined to
make and/or made during the four-quarter reference period or
subsequent to such reference period and on or prior to or
simultaneously with the Total Secured Leverage Calculation Date
shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, mergers,
amalgamations, consolidations (including the Acquisition
Transactions), discontinued operations and other operational
changes (and the change of any associated Indebtedness and the
change in EBITDA resulting therefrom) had occurred on the first day
of the four-quarter reference period. If since the beginning of
such
2
period any Person that subsequently became a
Restricted Subsidiary or was merged with or into the Issuer or any
Restricted Subsidiary since the beginning of such period shall have
made any Investment, acquisition, disposition, merger,
consolidation, amalgamation, discontinued operation or operational
change, in each case with respect to an operating unit of a
business, that would have required adjustment pursuant to this
definition, then the Total Secured Leverage Ratio shall be
calculated giving pro forma effect thereto for such period
as if such Investment, acquisition, disposition, discontinued
operation, merger, amalgam
