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Exhibit - 4.1
$150,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 26, 2000
among
HARRAH'S OPERATING COMPANY, INC.
AS BORROWER
HARRAH'S ENTERTAINMENT, INC.
AS GUARANTOR
and
CITIBANK, N.A.
AS LENDER
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 4
SECTION 1.02 Types of Advances............................................. 7
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment; Purpose....................................... 8
SECTION 2.02. Advances...................................................... 8
SECTION 2.03. Termination, Reduction and Extension of the Commitment........ 8
SECTION 2.04. Repayment of Advances......................................... 8
SECTION 2.05. Prepayment of Advances........................................ 9
SECTION 2.06. Fees.......................................................... 9
SECTION 2.07. Interest......................................................10
SECTION 2.08. Alternate Rate of Interest....................................12
SECTION 2.09. Increased Costs...............................................13
SECTION 2.10. Break Funding Payments........................................13
SECTION 2.11. Payments Generally............................................13
ARTICLE III CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advance........................14
SECTION 3.02. Conditions Precedent to Each Advance..........................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties................................15
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Covenants......................................................16
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................17
ARTICLE VII MISCELLANEOUS
SECTION 7.01. Amendments, Etc...............................................18
SECTION 7.02. Notices, Etc..................................................18
SECTION 7.03. No Waiver; Remedies...........................................18
SECTION 7.04. Costs, Expenses and Indemnification...........................19
SECTION 7.05. Assignments and Participations................................19
SECTION 7.06. Governing Law; Submission to Jurisdiction.....................20
SECTION 7.07. Severability..................................................21
SECTION 7.08. Execution in Counterparts.....................................21
SECTION 7.09. Survival......................................................21
SECTION 7.10. Waiver of Jury Trial..........................................21
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SECTION 7.11. No Fiduciary Relationship.....................................21
SECTION 7.12. Gaming Boards.................................................22
SECTION 7.13. Gaming Regulations............................................22
SECTION 7.14. Designated Senior Debt........................................22
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CREDIT AGREEMENT dated as of June 26, 2000 among HARRAH'S OPERATING
COMPANY, INC., a Delaware corporation (the "Borrower"), as Borrower, HARRAH'S
ENTERTAINMENT, INC., a Delaware corporation (the "Parent"), as Guarantor, and
CITIBANK, N.A. (the "Lender").
The Parent and the Borrower have requested that the Lender make
advances to the Borrower in an aggregate principal amount up to but not
exceeding $150,000,000 at any one time outstanding to refinance certain
indebtedness, and the Lender is prepared to make such advances on and subject to
the terms and conditions hereof. Accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. Except as otherwise expressly
provided herein, capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Existing Syndicated Credit
Agreement as hereinafter defined (provided that said defined terms shall be
construed mutatis mutandis and without limiting the foregoing, references in
said defined terms to "any Lender", "the Administrative Agent" and "any
Creditor" or the like shall be deemed to mean the Lender and references to the
"Loan Documents" or the like shall be deemed to mean this Agreement). In
addition:
"Advance" means each advance by the Lender to the Borrower pursuant to
Section 2.01.
"Applicable Lending Office" means the office of the Lender specified on
the signature page hereof, or such other office of the Lender as the Lender may
from time to time specify to the Borrower.
"Arranger" means Salomon Smith Barney, Inc.
"Base Rate" means, for any period, a fluctuating interest rate per
annum in effect from time to time which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New York,
New York from time to time as Citibank's base rate; and
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(b) the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"Base Rate Advance" means, at any time, an Advance which bears interest
computed on the basis of the Base Rate.
"Business Day" means a day on which banks are not required or
authorized to close in New York, New York and, in the case of any borrowing or
payment in respect of or the interest rate on any Eurodollar Rate Advance, on
which dealings in Dollar deposits are carried on in the London interbank market.
"Citibank" means Citibank, N.A.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Termination Date" means the date 364 days after the date
hereof, provided, that if such day is not a Business Day, the Commitment
Termination Date shall be the immediately preceding Business Day.
"Debt Issuance" means any issuance or incurrence by a Borrower or the
Parent or any of their respective Subsidiaries of Indebtedness for Borrowed
Money.
"Default" means an Event of Default or an event that, with notice or
lapse of time or both, would become an Event of Default.
"Dollars" and "$" mean lawful money of the United States of America.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Advance,
for any Interest Period:
(a) the offered rate for deposits in Dollars with a maturity comparable
to such Interest Period appearing on Page 3750 of the Telerate Service of Bridge
Information Service (or on any successor or substitute page of such Service, or
any successor to such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Lender
from time to time, for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) as of
approximately 11:00 a.m. (London time) on the date two Business Days prior to
the commencement of such Interest Period;
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(b) if such date does not appear on said Page 3750 (or such successor),
the offered rate for deposits in Dollars with a maturity comparable to such
Interest Period appearing on the display designated on page "LIBO" on the Reuter
Monitor Money Rates Service (or on any successor or substitute page of such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Lender from time to time, for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) as of approximately 11:00 a.m. (London time) on
the date two Business Days prior to the commencement of such Interest Period;
and
(c) in the event that neither rate referred to in clauses (a) or (b) is
available at such time for any reason, an interest rate per annum equal to the
rate per annum at which deposits in Dollars are offered by the principal office
of the Lender in London, England to prime banks in the London interbank market
at approximately 11:00 a.m. (London time) on the date two Business Days before
the first day of such Interest Period in the amount of the Advance if such
Advance were to be outstanding for such Interest Period.
"Eurodollar Rate Advance" means, at any time, an Advance which bears
interest at a rate based upon the Eurodollar Rate.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Syndicated Credit Agreement" means the 364-Day Loan Agreement
dated as of April 30, 1999, among the Borrower, Marina Associates, certain
financial institutions and Bank of America National Trust and Savings
Association, as Administrative Agent, as amended to and in effect on the date
hereof, without regard to any amendment or modification or waiver thereunder on
or after the date hereof, and without regard to whether said agreement remains
in effect among the parties thereto on or after the date hereof.
"Guaranty" means a Guaranty in form and substance satisfactory to the
Lender executed by the Parent with respect to the obligations of the Borrower
hereunder, as from time to time amended.
"Indebtedness for Borrowed Money" means Indebtedness arising from the
issuance debt securities in private placement transactions or in the capital
markets (not including refinancings of Indebtedness existing on the date hereof
or the
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assumption or refinancing of Indebtedness of any Subsidiary which Indebtedness
exists on the date of acquisition of by the Borrower or the Parent of such
Subsidiary (and not created in contemplation thereof), and not including
Indebtedness arising under commercial paper transactions).
"Interest Payment Date" means (a) with respect to any Base Rate
Advance, each Quarterly Payment Date and (b) with respect to any Eurodollar Rate
Advance, the last day of each Interest Period therefor and, in the case of any
Interest Period that has a duration of more than three months, each day prior to
the last day of such Interest Period that occurs at intervals of three months
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Rate Advance,
the period beginning on the date such Eurodollar Rate Advance is made, or on the
last day of the immediately preceding Interest Period, and ending on the day 1,
2, 3 or 6 months thereafter, as the Borrower may select as hereinafter provided;
provided, however, that (i) each Interest Period that begins on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month,
(ii) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, except that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day, and (iii) any Interest Period that would
otherwise extend beyond the Commitment Termination Date shall end on the
Commitment Termination Date.
"Net Cash Proceeds" means, in connection with any Debt Issuance by any
Person, the cash proceeds thereof net of reasonable costs and expenses incurred
in connection with such Debt Issuance.
"Parent" means Harrah's Entertainment, Inc., a Delaware corporation.
"Players International" means Players International Inc., a Nevada
corporation.
"Senior Notes" means the $150,000,000 in 10.875% Senior Notes of
Players International due 2005.
SECTION 1.02 Types of Advances. The "Type" of an
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Advance refers to whether it is at the time a Base Rate Advance or a Eurodollar
Rate Advance.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment; Purpose.
(a) The Lender agrees, on the terms and conditions hereinafter set
forth, to make Advances in Dollars to the Borrower at any time and from time to
time on any Business Day during the period from the date hereof until the
Commitment Termination Date in an aggregate principal amount not to exceed at
any one time outstanding $150,000,000 (the "Commitment"). Within the foregoing
limits and subject to the terms and conditions of this Agreement, the Borrower
may borrow, prepay and reborrow the amount of the Commitment. Each Advance shall
be in a minimum amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof.
(b) The proceeds of the Advances shall be used solely (i) first, to
refinance in full the Senior Notes, and (ii) thereafter for the general
corporate purposes of the Borrower.
SECTION 2.02. Advances. To request an Advance, the Borrower shall give
the Lender irrevocable, written notice of such Advance (i) in the case of a
Eurodollar Rate Advance, not later than 10:00 a.m. (New York time) on the second
Business Day prior to the date of such Advance or (ii) in the case of a Base
Rate Advance, not later than 10:00 a.m. (New York time) on the day of such
Advance. Each such notice shall be by telecopier and shall specify therein (1)
the requested date of such Advance, (2) the requested Type of Advance, (3) the
requested amount of such Advance and (4) in the case of a Eurodollar Rate
Advance, the initial Interest Period with respect thereto. The Lender will make
the proceeds of each Advance available to the Borrower by crediting the amount
thereof, in immediately available funds, to an account of the Borrower by 11:00
a.m. New York time on the date of such Advance in accordance with standing wire
instructions reasonably satisfactory to the Lender.
SECTION 2.03. Termination, Reduction and Extension of the Commitment.
(a) Unless previously terminated, the Commitment shall automatically
terminate on the Commitment Termination Date.
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(b) The Borrower shall have the right to terminate or reduce the
Commitment at any time or from time to time; provided, that (i) the Borrower
shall give irrevocable, written notice of each such termination or reduction to
the Lender at least three Business Days before such termination or reduction,
(ii) each partial reduction shall be in a minimum amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not
terminate or reduce the Commitment if, after giving effect to any concurrent
prepayment of the Advances pursuant to Section 2.05, at any time, the aggregate
outstanding principal amount of the Advances at such time would exceed the
Commitment.
(c) The Commitment once terminated or reduced pursuant to this Section
2.03 may not be reinstated.
SECTION 2.04. Repayment of Advances. The Borrower agrees to repay to
the Lender the outstanding principal amount of the Advances on the Commitment
Termination Date.
SECTION 2.05. Prepayment of Advances.
(a) The Borrower shall have the right at any time and from time to time
to prepay any Advance in whole or in part, subject to the terms of clause (c)
below.
(b) The Borrower shall, on the date of any Debt Issuance after the date
hereof, prepay the Advances in an aggregate amount equal to the Net Cash
Proceeds of such Debt Issuance. The Borrower will give the Lender at least three
Business Days' prior written notice of each Debt Issuance, specifying the date
thereof and the principal amount thereof.
(c) The Borrower shall notify the Lender in writing of any optional
prepayment hereunder not later than 10:00 a.m. (New York time) (i) in the case
of Eurodollar Rate Advance, three Business Days before the date of prepayment
(ii) in the case of Base Rate Advance, on the date of such prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Advance or portion thereof to be prepaid. Each partial
prepayment of any Advance under Section 2.05(a) shall be in a minimum amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(d) All prepayments under this Section 2.05 shall be accompanied by
accrued interest and all amounts payable in connection therewith pursuant to
Section 2.10.
SECTION 2.06. Fees.
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(a) The Borrower shall pay to the Lender a facility fee on the daily
amount of the Commitment (whether or not utilized) for the period from and
including the date of this Agreement to but not including the earlier of the
date the Commitment is terminated or the Commitment Termination Date, at a rate
per annum equal to the Facility Fee Rate. Accrued facility fee shall be payable
in arrears on each Quarterly Payment Date and on the earlier of the date the
Commitment terminates and the Commitment Termination Date. Facility fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) On the date hereof, the Borrower shall pay to the Lender, for the
sole account of the Arranger, non-refundable fees in the amounts separately
agreed in the fee letter dated as of the date hereof relating hereto.
SECTION 2.07. Interest.
(a) The Borrower agrees to pay interest on each Base Rate Advance at a
rate per annum equal to the Base Rate plus the Base Rate Margin.
(b) The Borrower agrees to pay interest on each Eurodollar Rate Advance
at a rate per annum for each Interest Period equal to the Eurodollar Rate for
such Interest Period plus the Eurodollar Margin.
(c) Notwithstanding clauses (a) and (b) above, during any period that
an Event of Default has occurred and is continuing, the Borrower agrees to pay
to the Lender interest at a rate per annum equal to (i) in the case of any
principal of any Advance, 2% per annum plus the rate otherwise applicable to
such Advance or (ii) in the case of any other amount, 2% per annum plus the Base
Rate plus the Base Rate Margin.
(d) Accrued interest on each Advance shall be payable in arrears on
each Interest Payment Date and upon termination of the Commitment; provided,
that (i) interest accrued pursuant to paragraph (c) of this Section 2.07 shall
be payable on demand, and (ii) in the event of any repayment or prepayment of
any Advance, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment.
(e) Each Advance initially shall be of the Type specified in the notice
of such Advance and, in the case of a Eurodollar Rate Advance, shall have an
initial Interest Period as
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specified in such notice. Thereafter, the Borrower may elect to convert such
Advance to a different Type or to continue such Advance as the same Type and,
in the case of a Eurodollar Rate Advance, mayelect Interest Periods therefor,
all as provided in this Section 2.07. The Borrower may elect different
options with respect to different portions of the affected Advance, in which
case each such portion shall be considered a separate Advance (provided, that
each such portion, in the case of a Eurodollar Rate Advance, shall be in a
minimum amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof). To make an election pursuant to this Section 2.07, the Borrower
shall notify the Lender of such election by telephone by the time that a
notice of Advance would be required under Section 2.02 if the Borrower were
requesting an Advance of the Type resulting from such election to be made on
the effective date of such elections. Each such telephonic election shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Lender of a written interest election request in a form approved by the
Lender and signed by the Borrower. Each telephonic and written interest
election request shall specify the following information:
(i) the Advance to which such interest election request applies and, if
different options are being elected with respect to different portions thereof,
the portions thereof to be allocated to each resulting Advance (in which case
the information to be specified pursuant to clauses (iii) and (iv) of this
paragraph shall be specified for each resulting Advance);
(ii) the effective date of the election made pursuant to such interest
election request, which shall be a Business Day;
(iii) whether the resulting Advance is to be a Base Rate Advance or a
Eurodollar Rate Advance, or a specified combination thereof; and
(iv) if the resulting Advance is a Eurodollar Rate Advance, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such interest election request requests a Eurodollar Rate
Advance but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. If the
Borrower fails to deliver a timely and complete interest election request with
respect to a Eurodollar Rate Advance prior to the end of the Interest Period
applicable thereto, then, unless such Advance is repaid as provided herein, at
the end of such Interest Period such Advance shall be converted to a Base Rate
Advance. Notwithstanding any
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contrary provision hereof, if an Event of Default has occurred and is continuing
and the Lender so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Advance may be converted to or continued as a
Eurodollar Rate Advance and (ii) unless repaid, each Eurodollar Rate Advance
shall be converted to a Base Rate Advance at the end of the Interest Period
applicable thereto. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and the Lender so notifies the Borrower, then, so
long as an Event of Default is continuing, (i) no outstanding Advance may be
converted to or continued as a Eurodollar Rate Advance and (ii) unless repaid,
each Eurodollar Rate Advance shall be converted to a Base Rate Advance at the
end of the Interest Period applicable thereto.
(f) The Borrower agrees to pay to the Lender, so long as the Lender
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or the equivalent),
additional interest on the unpaid principal amount of each Advance, from the
date of such Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the relevant Interest Period from (ii) the rate obtained
by dividing such Eurodollar Rate by a percentage equal to 100% minus the Reserve
Percentage, payable on each date on which interest is payable on such Advance. A
certificate of the Lender setting forth the amount to which the Lender is then
entitled under this Section2.07(f) shall be conclusive and binding on the
Borrower in the absence of manifest error.
(g) All computations of interest based on the Base Rate shall be made
on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurodollar Rate and computations of
interest pursuant to Section 2.07(f) shall be made on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
SECTION 2.08. Alternate Rate of Interest. If the Lender determines
(which determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for any
Interest Period, then the Lender shall give notice thereof to the Borrower by
telephone or telecopy as promptly as practicable thereafter and, until the
Lender notifies the Borrower that the circumstances giving rise to such notice
no longer exist, all Advances as shall be made and maintained as (and effective
on the first day of such
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Interest Period all Eurodollar Rate Advances shall be converted to) Base Rate
Advances.
SECTION 2.09. Increased Costs. The Borrower agrees to pay to the Lender
the amounts provided for in Section 3.7 and 3.8 of the Existing Syndicated
Credit Agreement as if the references therein to any "Eurodollar Rate Loans" or
"Eurodollar Rate Advances" referred to the Advances, each reference therein to
"each Lender" or the "Administrative Agent" or the like referred to the Lender
and said Sections were otherwise set forth herein in full mutatis mutandis. A
certificate of the Lender setting forth any amount or amounts that the Lender is
entitled to receive pursuant to this Section 2.09 shall be delivered to the
Borrower and shall be conclusive absent manifest error.
SECTION 2.10. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Rate Advance other than on the last day of an
Interest Period therefor (including without limitation as a result of an Event
of Default), or (b) the failure to borrow or prepay any Eurodollar Rate Advance
on the date specified in any notice delivered pursuant hereto, then, in any such
event, the Borrower shall reimburse the Lender on demand for the loss, cost and
expense attributable to such event, which shall be the amount, as reasonably
determined by the Lender, equal to the sum of (1) principal amount paid, not
borrowed or not prepaid, as the case may be, times the quotient of (A) the
number of days between the date of prepayment or failure to borrow, as
applicable, and the last day in the applicable Interest Period, divided by (B)
360, times the applicable Interest Differential (provided that the product of
the foregoing formula must be a positive number); plus (2) all out-of-pocket
expenses incurred by the Lender reasonably attributable to such payment,
prepayment or failure to borrow. A certificate of the Lender setting forth any
amount or amounts that the Lender is entitled to receive pursuant to this
Section 2.10 shall be delivered to the Borrower and shall be conclusive absent
manifest error.
SECTION 2.11. Payments Generally.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or under Section 2.09 or
2.10, or otherwise) prior to 2:00 p.m. (New York time) on the date when due, in
Dollars and immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Lender, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the
Lender at such place as the Lender may direct. If any payment hereunder shall
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be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension.
(b) If at any time insufficient funds are received by and available to
the Lender to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be applied first, to pay interest then due
hereunder, then to pay fees and other amounts (other than principal) hereunder,
then to pay principal due hereunder.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advance. The obligation of
the Lender to make its initial Advance is subject to the condition precedent
that the Lender shall have received, on or before June 30, 2000:
(1) The Guaranty, duly executed by the Parent.
(2) Certified copies of (x) the charter and by-laws of the Borrower (or
equivalent documents) and the Parent and (y) evidence of the taking of all
necessary corporate action required for the making and performance by the
Borrower and the Parent of this Agreement and the Guaranty.
(3) A certificate of the Borrower and the Parent certifying the names
and true signatures of the officers of the Borrower and the Parent
authorized to sign this Agreement (in the case of the Borrower) and the
Guaranty (in the case of the Parent) and any other documents to be
delivered hereunder.
(4) A certificate from each of the Secretary of the relevant states of
incorporation dated a date reasonably close to the date hereof as to the
good standing of and charter documents filed by the Borrower and the
Parent.
(5) Favorable written opinions of the Associate General Counsel or
General Counsel of the Parent and the Borrower, covering such matters
relating to this Agreement and the Guaranty as the Lender may require.
(6) A certificate signed on Parent's and the Borrower's behalf by a
Senior Officer setting forth the
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Total Debt Ratio as of March 31, 2000 and the Debt Rating as of the date
hereof.
(7) A copy of the Parent's audited consolidated annual financial
statements for the Fiscal Year ended December 31, 1999.
(8) Such other assurances, certificates, documents, consents or
opinions as the Lender reasonably may require.
In addition, it shall be a condition precedent to the obligation of the Lender
to make any Advance that the Borrower shall have paid all fees then due and
payable and the reasonable costs and expenses of the Lender in connection with
the preparation of this Agreement and the Guaranty.
SECTION 3.02. Conditions Precedent to Each Advance. The obligation of
the Lender to make each Advance (including, without limitation, the initial
Advance) shall be subject to the further conditions precedent that on the date
of such Advance (a) the representations and warranties set forth in Article IV
are true and correct on and as of the date of such Advance, before and after
giving effect to such Advance and to the application of the proceeds thereof, as
though made on and as of such date and (b) no Default has occurred and is
continuing, or would result from such Advance or from the application of the
proceeds thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower and the
Parent represent and warrant to the Lender that (1) except to the extent
otherwise disclosed to the Lender in writing prior to the date of this
Agreement, each of the representations and warranties of the Parent and the
Borrower in Article 4 of the Existing Syndicated Credit Agreement is true on and
as of the date of this Agreement as if made on and as of the date of this
Agreement, and as if (i) each reference therein and in the defined terms used
therein to the "Loan Documents" referred to this Agreement and the Guaranty;
(ii) each reference therein to the "Closing Date" referred to the date of this
Agreement; (iii) each reference therein to "any Loan hereunder" or the like
referred to the Advances; (iv) the reference in Section 4.5 thereof to the
financial statements of the Parent and its Subsidiaries for the Fiscal Year
ended December 31, 1998 referred to the financial statements thereof for the
Fiscal Year ended December 31, 1999; and (v) references therein to Schedules
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thereto referred to such Schedules as updated in writing and heretofore
delivered to the Lender; 2) no filings (whether by the Borrower, the Parent or
the Lender) with or licenses or approvals of any Gaming Board are required for
the Borrower and/or the Parent to make and perform this Agreement and the
Guaranty except as provided in Section 5.01(3); (3) Players International is a
direct or indirect wholly-owned Subsidiary of the Borrower; (4) none of the
proceeds of the Senior Notes were used for the purpose, whether immediate,
incidental or ultimate, of buying or carrying margin stock within the meaning of
Regulations U or X of the Board of Governors of the Federal Reserve System; and
(5) the financing contemplated hereby is necessary to pursue the transactions
contemplated by the Merger Agreement relating to Players International.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Covenants. So long as any principal of or interest on any
Advance or any other amount payable hereunder remains outstanding or the
Commitment remains in effect, (1) the Borrower and the Parent covenant and agree
that they will perform and observe the covenants and agreements set forth in
Section 3.7, Section 3.8, Articles 5 (other than Sections 5.7, 5.8 and 5.9), 6
(other than Section 6.4 thereof) and 7 of the Existing Syndicated Credit
Agreement, and agree that said Sections 5 (other than said Sections 5.7, 5.8 and
5.9), 6 (other than Section 6.4 hereof) and 7, together with all related
definitions and ancillary provisions, are hereby incorporated by reference into
this Agreement mutatis mutandis and shall be deemed to continue in effect for
the benefit of the Lender as in effect on the date hereof irrespective of
whether the Existing Syndicated Credit Agreement remains in effect among the
parties thereto or is modified or amended or whether any provision thereof is
waived; and without limiting the foregoing, (i) each reference in said Articles
5, 6 and 7 and in the defined terms used therein to the "Loan Documents" shall
be deemed to refer to this Agreement and the Guaranty; (ii) each reference
therein to the "Closing Date" shall be deemed to refer to the date of this
Agreement; (iii) each reference therein to "any Loan hereunder", "any Advance"
or the like shall be deemed to refer to the Advances; (iv) each reference to the
"Lenders", "the Administrative Agent and the Lenders", the "Requisite Lenders",
any "Creditor" and the like shall be deemed to refer to the Lender; and (v) each
reference to any "Default" referred to any Default as defined herein; (2) if the
Borrower at any time provides collateral security for the obligations under the
Existing Syndicated Credit Agreement or any amendment, replacement or
refinancing thereof, the Borrower will assure that the obligations of the
Borrower
<PAGE>
hereunder are equally and ratably secured thereby; and (3) the Borrower will
within 30 days after the date of this Agreement provide evidence satisfactory to
the Lender that it has made such filings relating hereto with the Nevada Gaming
Board as are required by applicable law and regulation.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower fails to pay any principal of any Advance when the
same becomes due and payable; or the Borrower or the Parent fails to pay any
interest on any Advance or any facility fee payable hereunder within five
Business Days after the date when due; or the Borrower or the Parent fails to
pay any other fee or other amount payable hereunder (other than as specified
above in this clause (a)) within five Business Days after demand therefor; or
(b) Any representation or warranty made by the Borrower or the Parent
herein or by any thereof in any certificate or other document delivered in
connection herewith shall prove to have been incorrect when made or deemed made;
or
(c) The Borrower or the Parent shall fail to perform or observe any
term, covenant or agreement contained in Article 6 (other than Section 6.3 and
Section 6.4) of the Existing Syndicated Credit Agreement as incorporated herein
by reference; or the Borrower or the Parent shall fail to perform the covenant
in Section 7.1(h) of the Existing Syndicated Credit Agreement as so incorporated
herein in any respect that is materially adverse to the interests of the Lender;
or the Borrower or the Parent shall fail to perform or observe any other term or
covenant in this Agreement on its part to be performed or observed and such
failure remains unremedied for thirty days after notice thereof shall have been
given to the Borrower by the Lender; or
(d) Any Event of Default as defined in the Existing Syndicated
Credit Agreement shall occur (without regard to any waiver thereunder);
then, and in any such event, the Lender may, by notice to the Borrower, (i)
declare the obligation of the Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and/or (ii) declare the Advances,
all interest thereon
<PAGE>
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Advances, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an entry of an order for
relief with respect to the Parent or the Borrower described in any bankruptcy,
insolvency, reorganization or similar proceedings in respect of the Parent or
the Borrower, (A) the obligation of the Lender to make Advances shall
automatically be terminated and (B) the Advances, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Parent or the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Lender and the Borrower, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. This Agreement and the Guaranty and the documents referred to
herein and therein constitute the entire agreement of the parties with respect
to the subject matter hereof and thereof.
SECTION 7.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier communication)
and mailed, telecopied or delivered, to the respective addresses set forth on
the signature pages hereof or at such other address as shall be designated by
any party in a written notice to the other party. All such notices and
communications shall, when mailed or telecopied, be effective on the earlier of
receipt or the third calendar day after deposit in the mails or telecopied,
respectively, except that notices and communications to the Lender pursuant to
Article II shall not be effective until received by the Lender.
SECTION 7.03. No Waiver; Remedies. No failure on the part of the Lender
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
<PAGE>
SECTION 7.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay and reimburse the Lender upon demand for
all reasonable costs and expenses incurred by the Lender in connection with the
preparation, negotiation, execution and delivery, administration, modification,
amendment or enforcement of this Agreement, the Guaranty and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Lender with respect thereto and
with respect to advising the Lender as to its rights and responsibilities under
or in connection with this Agreement or the Guaranty.
(b) The Borrower hereby indemnify the Lender and each of its affiliates
and their respective officers, directors, employees, agents, advisors and
representatives (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel), joint or several,
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement or the
transactions contemplated hereby or any use made or proposed to be made with the
proceeds of the Advances, whether or not such investigation, litigation or
proceeding is brought by the Borrower, any of its shareholders or creditors, an
Indemnified Party or any other Person, or an Indemnified Party is otherwise a
party thereto, and whether or not any of the conditions precedent set forth in
Article III are satisfied or the other transactions contemplated by this
Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
SECTION 7.05. Assignments and Participations.
(a) The Lender may, with the consent of the Parent and the Borrower,
which consent may be held at the sole discretion of the Parent and the Borrower,
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Commitment or the Advances); provided, however, that no such
consent by the Parent or the Borrower shall be required in the case of any
assignment to an affiliate of the Lender; and provided, further, that any such
partial assignment shall be in an amount at least equal to $5,000,000 or in an
integral multiple of $1,000,000 in excess thereof.
<PAGE>
(b) The Lender may, with the consent of the Parent and the Borrower,
which consent may be held at the sole discretion of the Parent and the Borrower,
sell participations to one or more banks or other entities in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or the Advances); provided,
however, that the Lender's obligations under this Agreement (including, without
limitation, the Commitment) shall remain unchanged.
(c) The Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 7.05, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or any of their Subsidiaries or affiliates
furnished to the Lender by or on behalf of the Borrower.
(d) Notwithstanding any other provision set forth in this Agreement,
the Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances) in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board
of Governors of the Federal Reserve System.
(e) All amounts payable by the Borrower to the Lender under Sections
2.07(f), 2.09, 2.10 and 7.05(b) shall be determined as if the Lender had not
sold or agreed to sell any participations in the Advances or its Commitment and
as if the Lender were funding each of such Advances and Commitment in the same
way that it is funding the portion of such Advances and Commitment in which no
participations have been sold.
(f) Neither the Parent nor the Borrower may assign any of its rights or
obligations hereunder without the prior written consent of the Lender.
(g) Notwithstanding anything in this Section to the contrary, the
rights of the Lender to make assignment of, and grant participations in, its
Commitment shall be subject to the approval of any Gaming Board, to the extent
required by applicable Gaming Laws.
SECTION 7.06. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. The Borrower and the Parent hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York County for the
purposes of all legal proceedings arising
<PAGE>
out of or relating to this Agreement or the transactions contemplated hereby.
The Borrower and the Parent irrevocably appoint Corporate Service Company,
having an office on the date hereof at 80 State Street, Albany, NY 12207-2543,
as their agent for service of process in connection with any action or
proceeding arising under this Agreement. The Borrower and the Parent irrevocably
waive, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
SECTION 7.07. Severability. In case any provision in this Agreement
shall be held to be invalid, illegal or unenforceable, such provision shall be
severable from the rest of this Agreement , as the case may be, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 7.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 7.09. Survival. The obligations of the Borrower under Sections
2.07(f), 2.09, 2.10 and 7.05 shall survive for ninety days following the
repayment of the Advances and the termination of the Commitment. Each
representation and warranty made or deemed to be made herein or pursuant hereto
shall survive the making of such representation and warranty, and the Lender
shall not be deemed to have waived, by reason of making any Advance, any Default
or Event of Default that may arise by reason of such representation or warranty
proving to have been false or misleading.
SECTION 7.10. Waiver of Jury Trial. EACH OF THE BORROWER AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7.11. No Fiduciary Relationship. The Borrower acknowledges that
the Lender has no fiduciary relationship with, or fiduciary duty to, the Parent
or the Borrower arising out of or in connection with this Agreement or the Note,
and the relationship between the Lender and the Borrower is solely that of
creditor and debtor. This Agreement does not create a joint venture among the
parties.
<PAGE>
SECTION 7.12. Gaming Boards. The Lender agrees to cooperate with all
Gaming Boards in connection with the administration of their regulatory
jurisdiction over the Parent and its Subsidiaries, including the provision of
such documents or other information as may be requested by any such Gaming Board
relating to the Borrower or the Parent or any of their Subsidiaries or to this
Agreement.
SECTION 7.13. Gaming Regulations. Each party to this Agreement hereby
acknowledges that the consummation of the transactions contemplated hereby is
subject to applicable Gaming Laws (and the Borrower represents and warrants that
all requisite approvals necessary thereunder to enter into the transactions
contemplated hereby have been duly obtained).
SECTION 7.14. Designated Senior Debt. The Parent and the
Borrower hereby irrevocably designate this Agreement as "Designated Senior
Indebtedness" and "Senior Indebtedness" within the meanings given to those terms
in Section 1.1 of the Supplemental Indenture dated December 9, 1998 entered into
with respect to the Existing Subordinated Debt among the Borrower, Parent and
IBJ Schroeder Bank & Trust Company.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HARRAH'S OPERATING COMPANY, INC.,
as Borrower
By: /s/ CHARLES L. ATWOOD
---------------------------
HARRAH'S ENTERTAINMENT, INC.,
as Guarantor
By: /s/ CHARLES L. ATWOOD
---------------------------
Address for notices to the
Borrower:
5100 West Sahara Boulevard
Suite 200
Las Vegas, Nevada 89146
Attention: General Counsel
Telecopier: 702-579-2671
Telephone: 702-579-2610
with a copy to
Harrah's Entertainment, Inc.
1023 Cherry Road
Memphis, Tennessee 38117
Attention: Assistant Treasurer
Telecopier: 901-537-3443
Telephone: 901-537-3439
<PAGE>
CITIBANK, N.A.
By: /s/ MARK K. WILSON
-------------------------
Title: Managing Director
Global Media &
Communication
Applicable Lending Office:
399 Park Avenue
New York, NY 10043
Attention: Mark K. Wilson
Telephone: (212) 559-7241
Facsimile: (212) 793-6873
