Exhibit 10.1
AMENDMENT AND WAIVER TO INTERIM
LOAN AGREEMENT
AMENDMENT AND WAIVER, dated as of
March 26, 2009 (this “ Amendment and Waiver
”), to the Senior Unsecured Interim Loan Agreement, dated as
of January 28, 2008 (as amended, amended and restated,
modified or supplemented from time to time, the “ Interim
Loan Agreement ”), among Harrah’s Operating
Company, Inc., a Delaware corporation (the “ Borrower
”), the lenders from time to time party thereto (the “
Lenders ”), Citibank, N.A., as administrative agent
(in such capacity, the “ Administrative Agent ”)
and the other parties named therein.
WITNESSETH:
WHEREAS, pursuant to the Interim
Loan Agreement, the Lenders have extended credit to the Borrower on
the terms and conditions set forth in the Interim Loan
Agreement;
WHEREAS, the Borrower is considering
negotiating transactions with individual Lenders from time to time
to buy back Loans at prices below par (which offers may not be made
to all Lenders on a pro rata basis or may not be made to Lenders at
the same offer prices or with the same consideration), such
buybacks to be in the form of voluntary prepayments of the Loans
held by specific Lenders by the Borrower on a non-pro rata basis
(“ Buybacks ”);
WHEREAS, the Required Lenders have
consented to waive or amend certain provisions of the Interim Loan
Agreement on the terms and conditions contained herein in order to
permit Buybacks;
WHEREAS, Section 9.08 of the
Interim Loan Agreement provides that the Interim Loan Agreement may
be amended, in the case of any amendment that is also obtained with
respect to the corresponding provision in the Senior Unsecured
Notes Indenture, with the consent of Lenders having Loans and
holders of Senior Unsecured Notes representing more than 50% of the
sum of all Loans and Senior Unsecured Notes outstanding;
and
WHEREAS, the Borrower desires to
amend the Interim Loan Agreement in certain respects as permitted
by Section 9.08 of the Interim Loan Agreement.
NOW, THEREFORE, the parties hereto
hereby agree as follows:
ARTICLE I
Definitions
Section 1.1 Defined
Terms. Terms defined in the Interim Loan Agreement and used
herein shall have the meanings given to them in the Interim Loan
Agreement unless otherwise defined herein or the context otherwise
requires.
1
ARTICLE II
Amendment and
Waiver
Section 2.1 Waiver
.
(a) The Borrower shall conduct all
Buybacks on an arms’ length basis and (i) the amount of
the consideration paid for the Loans in any Buyback shall be a
percentage of the par principal amount (the “ Discount
”) to be individually negotiated and agreed with the
counterparty in such Buyback (the “ Counterparty
”) and (ii) the form of consideration paid for the Loans
in any Buyback shall be a form (which may be cash or non-cash) to
be individually negotiated and agreed with the
Counterparty.
(b) As a condition precedent to the
consummation of each Buyback, the Borrower shall have delivered to
the Administrative Agent at the consummation of each Buyback a
certificate of a Responsible Officer of the Borrower stating
(x) that no Default or Event of Default has occurred and is
continuing under the Interim Loan Agreement and (y) the
aggregate principal amount of Loans so prepaid pursuant to such
Buyback.
(c) Each Buyback shall be
consummated pursuant to procedures agreed to by the Borrower and
the Counterparty; provided that the Administrative Agent may
establish procedures with respect to mechanical provisions relating
to such Buyback, including, without limitation, timing, rounding
and minimum amounts.
(d) Each Buyback shall constitute a
voluntary prepayment of Loans for all purposes under the Interim
Loan Agreement (it being understood at no time shall the Borrower
be able to exercise voting rights in respect of Loans subject to a
Buyback).
(e) The Required Lenders hereby
consent to the transactions described in this
Section 2.1 notwithstanding anything to the contrary in
the Interim Loan Agreement and hereby waive the requirements of any
provision of the Interim Loan Agreement (including, without
limitation, Sections 2.11 or 2.18 ) that might
otherwise prohibit any Buyback, result in a Default or an Event of
Default as a result of the Buyback or require the ratable sharing
of proceeds received by Lenders from any Buyback. The Required
Lenders further acknowledge and agree that following a Buyback,
(i) interest in respect of Loans may be made on a non- pro
rata basis among the applicable Lenders to reflect the payment
of accrued interest to certain Lenders in a Buyback and
(ii) all subsequent prepayments and repayments of Loans (other
than a Buyback) shall be made on a pro rata basis among the
Lenders holding Loans (based upon the then outstanding principal
amounts of the Loans of such Lenders after giving effect to any
Buyback as if made at the applicable prepayment premium otherwise
set forth in the Interim Loan Agreement).
(f) This Amendment and Waiver shall
neither (i) require the Borrower to undertake any Buyback nor
(ii) limit or restrict the Borrower from making voluntary
prepayments of the Loans in accordance with the provisions of the
Interim Loan Agreement as in effect prior to the Buyback Amendment
and Waiver Effective Date (as defined below).
Section 2.2 Amendments
.
(a) Section 2.18(c) of the
Interim Loan Agreement is hereby amended by deleting from clause
(ii) of the proviso thereto “other than to the Borrower
or any Subsidiary or Affiliate thereof (as
