Exhibit 99.1
INCREMENTAL FACILITY AMENDMENT TO
CREDIT AGREEMENT
INCREMENTAL FACILITY AMENDMENT,
dated as of September 26, 2009 (this “ Amendment
”), to the Credit Agreement, dated as of January 28,
2008 and amended by that certain Amendment and Waiver dated as of
June 3, 2009 (as amended, amended and restated, modified or
supplemented from time to time, the “ Credit Agreement
”), among Harrah’s Operating Company, Inc., a Delaware
corporation (the “ Borrower ”), Hamlet Merger
Inc., a Delaware corporation (“ Holdings ,”
which was merged on January 28, 2008 with and into
Harrah’s Entertainment, Inc.), the lenders from time to time
party thereto (the “ Lenders ”), Bank of
America, N.A., as administrative agent and collateral agent (in
such capacity, the “ Administrative Agent ”),
and the other parties named therein.
W I T N E S S E T
H:
WHEREAS, the Borrower has requested
that the Incremental Lenders (as defined below) provide Incremental
Term Loans pursuant to Section 2.21 of the Credit Agreement in
the form of Other Term Loans in an aggregate principal amount of
$1,000,000,000.
WHEREAS, the Incremental Lenders are
willing to provide such Incremental Term Loans to the Borrower
pursuant to the terms and subject to the conditions set forth
herein.
WHEREAS, with respect to such
Incremental Term Loans, (x) Banc of America Securities LLC
(“ BAS ”) and Citigroup Global Markets Inc.
(“ CGMI ”) will act as the joint lead arrangers,
(y) BAS, CGMI, Credit Suisse Securities (USA) LLC (“
Credit Suisse ”), Deutsche Bank Securities Inc.
(“ DBSI ”) and J.P. Morgan Securities Inc.
(“ JPMorgan ”) will act as the joint
bookrunners, and (z) Goldman Sachs Credit Partners L.P.
(“ GSCP ”) and Morgan Stanley Senior Funding,
Inc. (“ MSSF ,” and together with BAS, CGMI,
Credit Suisse, DBSI, JPMorgan and GSCP, the “ Incremental
Arranging Parties ”) will act as co-managers.
NOW, THEREFORE, in consideration of
the premises and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
Definitions
Section 1.1. Defined Terms.
Terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement unless otherwise
defined herein or the context otherwise requires. As used in this
Amendment, the following terms have the meanings specified
below.
“ Amendment
Transactions ” shall mean the execution and delivery of
this Amendment and the Reaffirmation Agreement (as defined in
Section 4.1(f) hereof) by each Person party hereto or thereto,
the satisfaction of the conditions to the effectiveness hereof and
thereof and the consummation of the transactions contemplated
hereby and thereby.
“ Fee Letter ”
shall mean the Fee Letter dated September 26, 2009, by and
among the Borrower, the Incremental Arranging Parties and the other
parties party thereto.
“ Incremental Lenders
” shall mean the persons listed on Schedule 1 hereto
(other than any such person that has ceased to be a party hereto
pursuant to an Assignment and Acceptance in
accordance with Section 9.04 of the Credit
Agreement), as well as any person that becomes an
“Incremental Lender” hereunder pursuant to
Section 9.04 of the Credit Agreement.
“ Incremental Effective
Date ” shall mean the date on which all the conditions
set forth or referred to in Section 4.1 hereof shall have been
satisfied (or waived by each of the Incremental
Lenders).
“ Term B-4 Loan
Commitment ” shall mean, with respect to each Incremental
Lender, the commitment of such Incremental Lender to make Term B-4
Loans hereunder on the Incremental Effective Date. The principal
amount of each Incremental Lender’s Term B-4 Loan Commitment
is set forth on Schedule 1 hereto, or in the Assignment and
Acceptance pursuant to which such Incremental Lender shall have
assumed its Term B-4 Loan Commitment, as applicable. The aggregate
amount of the Term B-4 Loan Commitments of all Incremental Lenders
as of the date of this Amendment is $1,000,000,000.
“ Term B-4 Loans
” shall mean the loans made pursuant to Section 2.1 of
this Amendment.
“ Ticking Fee”
shall have the meaning assigned to such term in Section 4.2 of
this Amendment.
ARTICLE II
Commitment
Section 2.1. Commitment.
Subject to the terms and conditions set forth herein, each
Incremental Lender agrees to make Term B-4 Loans to the Borrower on
the Incremental Effective Date in a principal amount not to exceed
such Incremental Lender’s Term B-4 Loan Commitment in
accordance with the applicable procedures set forth in Article II
of the Credit Agreement. The Borrower agrees to pay to each
Incremental Lender on the Incremental Effective Date a closing fee
equal to 2.50% (the “ Closing Fee ”) of such
Incremental Lender’s Term B-4 Loan made on the Incremental
Effective Date. Such Closing Fee will be in all respects fully
earned, due and payable on the Incremental Effective Date and
nonrefundable and non-creditable thereafter. The Borrower
authorizes each such Incremental Lender to satisfy the
Borrower’s obligation to pay such Closing Fee to such
Incremental Lender by such Incremental Lender deducting the amount
of such Closing Fee from the principal amount of the Term B-4 Loan
disbursed on the Incremental Effective Date by such Incremental
Lender and by such Incremental Lender retaining the amount so
deducted for such Incremental Lender’s own account. The
payment of such Closing Fee shall not reduce the principal amount
of the Term B-4 Loan made by such Incremental Lender, and the
disbursement of the proceeds of such Term B-4 Loan, exclusive of
the amount of such Closing Fee, shall satisfy such Incremental
Lender’s Term B-4 Loan Commitment relating thereto in full.
Unless previously terminated, the Term B-4 Loan Commitments shall
terminate at 5:00 p.m., New York City time, on the earlier of
(x) the Incremental Effective Date and
(y) November 13, 2009.
ARTICLE III
Amendments
Effective as of and subject to the
occurrence of the Incremental Effective Date:
Section 3.1. Amendments to
Section 1.01.
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(a) Section 1.1 of the Credit
Agreement is hereby amended by inserting the following definitions
in proper alphabetical order:
“ Incremental Amendment
” shall mean the Incremental Facility Amendment, dated as of
September 26, 2009, among the Borrower, Holdings, the
Incremental Lenders party thereto and the Administrative
Agent.
“ Incremental Effective
Date ” shall have the meaning assigned to such term in
Section 1.1 of the Incremental Amendment.
“ Repaid Term B-4 Loans
” shall have the meaning assigned to such term in
Section 2.11(a)(iv).
“ Term B-4
Applicable Premium ” shall mean, as of any date upon
which a prepayment is payable pursuant to Section 2.11(a)(iv),
the present value at such date, computed using a discount rate
equal to the Term B-4 Treasury Rate plus 50 basis points, of the
sum of (x) the prepayment premium that would be payable on
October 15, 2011 with respect to the applicable Repaid Term
B-4 Loans plus (y) all interest that would accrue (assuming
the Borrower had selected consecutive three-month Interest Periods)
on the applicable Repaid Term B-4 Loans from such date to
October 15, 2011, computed using an interest rate for the
Repaid Term B-4 Loans equal to the sum of (i) the greater of
(x) the Eurocurrency Rate for an Interest Period of three
months commencing on such date and (y) 2.0% plus (ii) the
Applicable Margin in effect on such date for Term B-4 Loans that
are Eurocurrency Term Loans.
“ Term B-4 Borrowing
” shall mean a Borrowing comprised of Term B-4
Loans.
“ Term B-4 Facility
” shall mean the Term B-4 Loan Commitments and the Term B-4
Loans made pursuant to Section 2.1 of the Incremental
Amendment.
“ Term B-4 Facility
Maturity Date ” shall mean October 31,
2016.
“ Term B-4 Loan
Commitment ” shall have the meaning assigned to such term
in Section 1.1 of the Incremental Amendment.
“ Term B-4 Loan Installment
Date ” shall have the meaning assigned to such term in
Section 2.10(a)(iv).
“ Term B-4 Loans
” shall have the meaning assigned to such term in
Section 1.1 of the Incremental Amendment.
“ Term B-4 Treasury
Rate ” shall mean, at any date, the yield to maturity as
of such date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to such date
(or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly
equal to the period from such date to October 15, 2011;
provided, however, that if the period from such date to
October 15, 2011 is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted
to a constant maturity of one year will be used.
(b) The definition of “
Applicable Margin ” in Section 1.1 of the Credit
Agreement is hereby amended by (i) inserting the text
“and (iv) with respect to any Term B-4 Loan,
7.50% per annum in the case of any Eurocurrency Loan and
6.50% per annum in the case of any ABR Loan”
immediately
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following clause (iii) in such definition,
(ii) replacing the text “and” immediately
preceding the text “(iii)” set forth therein with a
comma and (iii) inserting the text “(other than Term B-4
Loans)” immediately after the last occurrence of the word
“Loans” in such definition.
(c) The definition of “
Class ” in Section 1.1 of the Credit Agreement is
hereby amended by inserting the text “Term B-4 Loans,”
immediately following the occurrence of the text “Term B-3
Loans,” set forth therein and is hereby further amended by
inserting the text “a Term B-4 Loan Commitment,”
immediately following the occurrence of the text “a Term B-3
Loan Commitment,” set forth therein.
(d) The definition of “
Commitments ” in Section 1.1 of the Credit
Agreement is hereby amended by inserting the text
“(including, without limitation, any Term B-4 Loan
Commitment)” immediately following the occurrence of the text
“Incremental Term Loan Commitment” set forth
therein.
(e) The definition of “
Facility ” in Section 1.1 of the Credit Agreement
is hereby amended by inserting the text “including, without
limitation, the Term B-4 Facility” immediately at the end of
such definition.
(f) The definition of “
First Lien Net Proceeds Prepayment Offer ” in
Section 1.1 of the Credit Agreement is hereby amended by
(x) inserting the text “and/or Term B-4 Loans”
immediately after the occurrence of the phrase “Term B-3
Loans” set forth therein and (y) replacing the text
“(ii) through (iv)” set forth therein with the text
“(ii), (iii), (iv) and (vi)”.
(g) The definition of “
Incremental Term Loan Installment Date ” is hereby
amended by replacing the text “(iv)” set forth therein
with the text “(v)”.
(h) The definition of “
Incremental Term Loans ” in Section 1.1 of the
Credit Agreement is hereby amended by deleting the text
“and” immediately preceding the text “Term B-3
Loans” set forth therein and inserting the text “and
Term B-4 Loans” immediately following the occurrence of the
text “Term B-3 Loans” set forth therein.
(i) The definition of “
Loans ” in Section 1.1 of the Credit Agreement is
hereby amended by replacing the phrase “(if any)” with
“(including, without limitation, Term B-4
Loans)”.
(j) The definition of “
Term Borrowing ” in Section 1.1 of the Credit
Agreement is hereby amended by inserting the text “(including
any Term B-4 Borrowing)” immediately following the occurrence
of the text “Incremental Term Borrowing” set forth
therein.
(k) The definition of “
Term Facility ” in Section 1.1 of the Credit
Agreement is hereby amended by inserting the text “, Term B-4
Facility” immediately following the occurrence of the text
“Term B-3 Facility” set forth therein.
(l) The definition of “
Term Loan Installment Date ” in Section 1.1 of
the Credit Agreement is hereby amended by inserting the text
“, Term B-4 Loan Installment Date” immediately
following the occurrence of the text “Term B-3 Loan
Installment Date” set forth therein and inserting the word
“other” immediately prior to the text
“Incremental Term Loan Installment Date” set forth
therein.
(m) The definition of “
Term Loans ” in Section 1.1 of the Credit
Agreement is hereby amended by inserting the text
“(including, without limitation, the Term B-4 Loans)”
immediately following the occurrence of the text “Incremental
Term Loans” set forth therein.
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Section 3.2. Amendments to
Section 2.03. Section 2.03(i) of the Credit Agreement
is hereby amended by inserting the text “, Term B-4
Loans” immediately following the occurrence of the text
“Term B-3 Loans” set forth therein.
Section 3.3. Amendments to
Section 2.10.
(a) Section 2.10(a) of the
Credit Agreement is hereby amended by (i) renumbering the
existing clause “(iv)” as clause “(v)”,
(ii) renumbering the existing clause “(v)” as
clause “(vi)” and (iii) inserting the following
new clause as clause (iv) in such Section:
“(iv) the Borrower shall repay
Term B-4 Borrowings on each date set forth below or, if such date
is not a Business Day, the next preceding Business Day (each such
date being referred to as a “ Term B-4 Loan Installment
Date ”), in the aggregate principal amount equal to the
amount set forth opposite such Term B-4 Loan Installment
Date:
|
|
|
|
Date
|
|
Amount of Term B-4 Borrowings
to Be Repaid
|
|
March 31, 2010
|
|
$2,500,000
|
|
June 30, 2010
|
|
$2,500,000
|
|
September 30, 2010
|
|
$2,500,000
|
|
December 31, 2010
|
|
$2,500,000
|
|
March 31, 2011
|
|
$2,500,000
|
|
June 30, 2011
|
|
$2,500,000
|
|
September 30, 2011
|
|
$2,500,000
|
|
December 31, 2011
|
|
$2,500,000
|
|
March 31, 2012
|
|
$2,500,000
|
|
June 30, 2012
|
|
$2,500,000
|
|
September 30, 2012
|
|
$2,500,000
|
|
December 31, 2012
|
|
$2,500,000
|
|
March 31, 2013
|
|
$2,500,000
|
|
June 30, 2013
|
|
$2,500,000
|
|
September 30, 2013
|
|
$2,500,000
|
|
December 31, 2013
|
|
$2,500,000
|
|
March 31, 2014
|
|
$2,500,000
|
|
June 30, 2014
|
|
$2,500,000
|
|
September 30, 2014
|
|
$2,500,000
|
|
December 31, 2014
|
|
$2,500,000
|
|
March 31, 2015
|
|
$2,500,000
|
|
June 30, 2015
|
|
$2,500,000
|
|
September 30, 2015
|
|
$2,500,000
|
|
December 31, 2015
|
|
$2,500,000
|
|
March 31, 2016
|
|
$2,500,000
|
|
June 30, 2016
|
|
$2,500,000
|
|
September 30, 2016
|
|
$2,500,000
|
|
Term B-4 Facility Maturity
Date
|
|
$932,500,000
|
5
(b) Section 2.10(a) of the
Credit Agreement is hereby further amended by (x) deleting the
text “and” at the end of clause (v), (y) replacing
the period at the end of clause (vi) with the text “;
and” and (z) inserting the following clause as a new
clause (vii):
“(vii) to the extent not
previously paid, outstanding Term B-4 Loans shall be due and
payable on the Term B-4 Facility Maturity Date.”
(c) Section 2.10(c)(iii) of the
Credit Agreement is hereby amended by inserting the text “or
Term B-4 Loans” immediately after the first occurrence of
“Term B-3 Loans” set forth therein and by inserting the
text “or Term B-4 Loans, respectively,” after the
second occurrence of “Term B-3 Loans” set forth
therein.
Section 3.4. Amendments to
Section 2.11.
(a) Section 2.11(a)(i) of the
Credit Agreement is hereby amended by deleting the text
“(except as provided in clauses (ii) and (iii) of
this Section 2.11(a)” and replacing it with the
following text:
“(except as provided in
clauses (ii), (iii) and (iv) of this
Section 2.11(a)”
(b) Section 2.11(a) of the
Credit Agreement is hereby amended by inserting the following new
clause as clause (iv) at the end of such Section:
“(iv) In the event that any
Term B-4 Loans are repaid (other than pursuant to
Section 2.11(g) or (h) or pursuant to a Permitted Loan
Purchase) or any Term B-4 Loans are assigned pursuant to
Section 2.19(c) in connection with an amendment to this
Section 2.11(a)(iv) or the definition of Term B-4 Applicable
Premium (the “ Repaid Term B-4 Loans ”) prior to
October 15, 2013 in whole or in part (other than pursuant to
Section 2.10(a) or Section 2.11(c)), the Borrower shall
pay to the Lenders having such Repaid Term B-4 Loans a prepayment
premium equal to:
(A) if the date of such prepayment
or assignment occurs after the Incremental Effective Date but prior
to October 15, 2011, the Term B-4 Applicable Premium as of the
date of such prepayment or assignment, provided that prior
to October 15, 2011, the Borrower may, at its option, on one
or more occasions, repay up to 35% of the aggregate principal
amount of the Term B-4 Loans subject to a prepayment premium on the
principal amount of Term B-4 Loans being prepaid equal to the sum
of (i) the greater of (x) the Eurocurrency Rate for an
interest period of three months commencing on such date and
(y) 2.0% plus (ii) the Applicable Margin for Term B-4
Loans that are Eurocurrency Term Loans in effect on such date, plus
accrued and unpaid interest thereon to the date of such repayment,
with the net cash proceeds of one or more offerings of Qualified
Equity Interests, provided that (x) at least 50% of the
original aggregate principal amount of Term B-4 Loans remains
outstanding immediately after the occurrence of each such repayment
and (y) each such repayment occurs within 90 days of the date
of receipt of the equity proceeds so utilized,
(B) 5.0%, if the date of such
prepayment or assignment occurs after October 15, 2011 but
prior to October 15, 2012, and
(C) 3.0%, if the date of such
prepayment or assignment occurs after October 15, 2012 but
prior to October 15, 2013.
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(c) Section 2.11(h)(i) of the
Credit Agreement is hereby amended by (i) deleting the text
“(other than Term B-3 Loans)” from clause (y) of
such Section and replacing it with the text “(other than Term
B-3 Loans and Term B-4 Loans)” and (ii) inserting the
text “and, subject to clause (vi) of this
Section 2.11(h), Term B-4 Loans” immediately after the
text “Term B-3 Loans” in clause (z) of such
Section.
(d) Section 2.11(h)(ii) of the
Credit Agreement is hereby amended by inserting the text “and
the Applicable Facility Percentage for the Te