GTECH HOLDINGS CORPORATION
GTECH CORPORATION
$300,000,000
7.75% Series A Guaranteed Senior Notes due 2004
7.87% Series B Guaranteed Senior Notes due 2007
NOTE AND GUARANTEE AGREEMENT
Dated as of May 15, 1997
GTECH HOLDINGS CORPORATION
GTECH CORPORATION
55 Technology Way
West Greenwich, Rhode Island 02817
7.75% Series A Guaranteed Senior Notes due 2004
7.87% Series B Guaranteed Senior Notes due 2007
As of May 15, 1997
TO THE PURCHASERS WHOSE NAMES
APPEAR IN THE ACCEPTANCE
FORM AT END HEREOF:
Ladies and Gentlemen:
GTECH CORPORATION, a Delaware corporation (the "Company"), and
GTECH HOLDINGS CORPORATION, a Delaware corporation (the "Guarantor" and,
together with the Company, the "Obligors"), agree with each of the purchasers
whose names appear in the acceptance form at the end hereof (each, a "Purchaser"
and, collectively, the "Purchasers") as follows:
1. AUTHORIZATION OF NOTES
The Company will authorize the issue and sale, in two series,
of $300,000,000 aggregate principal amount of its guaranteed senior notes, of
which $150,000,000 aggregate principal amount shall be its 7.75% Series A
Guaranteed Senior Notes due 2004 (the "Series A Notes") and $150,000,000
aggregate principal amount shall be its 7.87% Series B Guaranteed Senior Notes
due 2007 (the "Series B Notes"). As used herein, the term "Notes" includes all
notes originally issued pursuant to this Agreement and any notes issued in
substitution therefor pursuant to Section 14. The Series A Notes and the Series
B Notes shall be substantially in the respective forms set out in Exhibits 1-A
and 1-B, with such changes therefrom, if any, as may be approved by each
Purchaser and the Company. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
Payment of the principal of, Make-Whole Amount (if any) and
interest on the Notes and other amounts owing hereunder shall be unconditionally
guaranteed by the Guarantor as provided in Section 13 (and each Note will have
the guarantee (the "Guarantee" and collectively, the "Guarantees") of the
Guarantor endorsed thereon in the form set out in Exhibit 1-C) and by the
Subsidiary Guarantors as provided in the Subsidiary Guarantees.
2. SALE AND PURCHASE OF NOTES
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to each Purchaser and each Purchaser will purchase
from the Company, at the Closing provided for in Section 3, Notes of the
respective series and in the principal amount specified opposite such
Purchaser's name in Schedule A at the purchase price of 100% of the principal
amount thereof. The Purchasers' obligations hereunder are several and not joint
obligations and no Purchaser shall have any liability to any Person for the
performance or non-performance of any obligation by any other Purchaser
hereunder.
3. CLOSING
The sale and purchase of the Notes to be purchased by each
Purchaser shall occur at the offices of Milbank, Tweed, Hadley & McCloy, One
Chase Manhattan Plaza, New York, New York 10005, at 10:00 a.m., New York City
time, at a closing (the "Closing") on May 29, 1997 or on such other Business Day
thereafter on or prior to May 31, 1997 as may be agreed upon by the Obligors and
the Purchasers. At the Closing the Company will deliver to each Purchaser the
Notes to be purchased by such Purchaser in the form of a single Note for each
series to be purchased by such Purchaser (or such greater number of Notes in
denominations of at least $500,000 and integral multiples of $5,000 in excess
thereof as such Purchaser may request) dated the date of the Closing and
registered in such Purchaser's name (or in the name of such Purchaser's
nominee), with the Guarantee of the Guarantor endorsed thereon, against delivery
by such Purchaser to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company to account number 004-269486 at
RI Hospital Trust National Bank, ABA Number 011-500-337, One Hospital Trust
Plaza, Providence, Rhode Island 02903. If at the Closing the Company shall fail
to tender such Notes to any Purchaser as provided above in this Section 3, or
any of the conditions specified in Section 4 shall not have been fulfilled to
such Purchaser's satisfaction, such Purchaser shall, at such Purchaser's
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights such Purchaser may have by reason of such failure or
such nonfulfillment.
4. CONDITIONS TO CLOSING
Each Purchaser's obligation to purchase and pay for the Notes
to be sold to such Purchaser at the Closing is subject to the fulfillment to
such Purchaser's satisfaction, prior to or at the Closing, of the following
conditions:
5. Representations and Warranties
The representations and warranties of the Obligors in this
Agreement shall be correct when made and at the time of the Closing.
6. Performance; No Default
Each Obligor shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by it prior to or at the Closing and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Section 5.14) no Default or Event of Default shall have occurred
and be continuing.
7. Compliance Certificates
8. Officer's Certificate. Each Obligor shall have
delivered to such Purchaser an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9
have been fulfilled.
9. Secretary's Certificate. Each Obligor and each Subsidiary
Guarantor shall have delivered to such Purchaser a certificate certifying as to
the resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of this Agreement, the Notes, the
Guarantees and the Subsidiary Guarantees, as applicable.
10. Opinions of Counsel
Such Purchaser shall have received opinions in form and
substance satisfactory to such Purchaser, dated the date of the Closing (a) from
in-house counsel for the Obligors, covering the matters set forth in Exhibit
4.4(a) and covering such other matters incident to the transactions contemplated
hereby as such Purchaser or the Purchasers' counsel may reasonably request and
(b) from Milbank, Tweed, Hadley & McCloy, the Purchasers' special New York
counsel in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
11. Purchase Permitted By Applicable Law, etc.
On the date of the Closing such Purchaser's purchase of Notes
shall (i) be permitted by the laws and regulations of each jurisdiction to which
such Purchaser is subject, without recourse to provisions (such as Section
1405(a)(8) of the New York Insurance Law) permitting limited investments by
insurance companies without restriction as to the character of the particular
investment, (ii) not violate any applicable law or regulation (including,
without limitation, Regulation G, T or X of the Board of Governors of the
Federal Reserve System) and (iii) not subject such Purchaser to any tax, penalty
or liability under or pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If requested by such Purchaser,
such Purchaser shall have received an Officer's Certificate from the Guarantor
certifying as to such matters of fact as such Purchaser may reasonably specify
to enable such Purchaser to determine whether such purchase is so permitted.
12. Sale of Other Notes
Contemporaneously with the Closing the Company shall sell to
each other Purchaser and each other Purchaser shall purchase the Notes to be
purchased by it at the Closing as specified in Schedule A.
13. Payment of Special Counsel Fees
Without limiting the provisions of Section 16.1, the Obligors
shall have paid on or before the Closing the fees, charges and disbursements of
the Purchasers' special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Obligors at least one
Business Day prior to the Closing.
14. Private Placement Number
A Private Placement number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
each series of the Notes.
15. Changes in Corporate Structure
Except as specified in Schedule 4.9, neither Obligor shall
have changed its jurisdiction of incorporation or been a party to any merger or
consolidation or shall have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
16. Rating
The Notes of each series shall have received a preliminary
rating of at least BBB+ from Duff & Phelps Credit Rating Co.
17. Subsidiary Guarantees
Such Purchaser shall have received a true and complete copy of
a Subsidiary Guarantee duly executed and delivered by each Subsidiary Guarantor
identified on Schedule 5.4, each such Subsidiary Guarantee shall be in full
force and effect, and the representations and warranties of the related
Subsidiary Guarantor in each such Subsidiary Guarantee shall be correct when
made and at the time of the Closing.
18. Proceedings and Documents
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and the Subsidiary Guarantees and
all documents and instruments incident to such transactions shall be
satisfactory to such Purchaser and the Purchasers' special counsel, and such
Purchaser and such special counsel shall have received all such counterpart
originals or certified or other copies of such documents as such Purchaser or
such special counsel may reasonably request.
19. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
The Company and the Guarantor jointly and severally represent
and warrant to each Purchaser that:
20. Organization; Power and Authority
Each Obligor is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each Obligor has the corporate power and authority to
own or hold under lease the properties it purports to own or hold under lease,
to transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and the Notes (in the case of the Company) and this
Agreement and the Guarantees (in the case of the Guarantor), and to perform the
provisions hereof and thereof.
21. Authorization, etc.
This Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each Note will constitute,
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, and this Agreement and the Guarantees have
been duly authorized by all necessary corporate action on the part of the
Guarantor, and this Agreement constitutes and, upon execution and delivery
thereof, each Guarantee will constitute, a legal, valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance with its terms,
except, in each case, as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
22. Disclosure
The Obligors, through their agent, Credit Suisse First Boston
Corporation, have delivered to each Purchaser a copy of a Direct Placement
Memorandum, dated April 1997 (the "Memorandum"), relating to the transactions
contemplated hereby. Except as disclosed in Schedule 5.3, this Agreement, the
Memorandum, the documents, certificates or other writings identified in Schedule
5.3 and the financial statements listed in Schedule 5.5, taken as a whole, do
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made. Except as disclosed in the
Memorandum or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since February 22, 1997, there has
been no change in the financial condition, operations, business or properties of
either Obligor or any Subsidiary except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
23. Organization and Ownership of Shares of Subsidiaries
(a) Schedule 5.4 is (except as noted therein) a complete and
correct list of the Guarantor's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, the percentage
of shares of each class of its capital stock or similar equity interests
outstanding owned by the Guarantor and each other Subsidiary and whether such
Subsidiary will be on the date of the Closing a Subsidiary Guarantor.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Guarantor or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Each such Subsidiary has the corporate or other
power and authority to own or hold under lease the properties it purports to own
or hold under lease and to transact the business it transacts and proposes to
transact.
24. Financial Statements
The Obligors have delivered to each Purchaser copies of the
financial statements listed on Schedule 5.5. All of said financial statements
(including in each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of the Guarantor and its
Subsidiaries as of the respective dates specified in such Schedule and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP consistently
applied throughout the periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements, to normal year-end
adjustments).
25. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Obligors of
this Agreement and the Notes (in the case of the Company) and the Guarantees (in
the case of the Guarantor) will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of either Obligor or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which either Obligor or any
Subsidiary is bound or by which either Obligor or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to either Obligor or any Subsidiary or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to
either Obligor or any Subsidiary.
26. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by either Obligor of this Agreement
or the Notes (in the case of the Company) or the Guarantees (in the case of the
Guarantor).
27. Litigation; Observance of Agreements, Statutes and Orders
(a) Except as disclosed in Part I of Schedule 5.8, there are
no actions, suits or proceedings pending or, to the knowledge of either Obligor,
threatened against or affecting either Obligor or any Subsidiary or any property
of either Obligor or any Subsidiary in any court or before any arbitrator of any
kind or before or by any Governmental Authority that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(b) Except as disclosed in Part II of Schedule 5.8, neither of
the Obligors nor any Subsidiary is in default under any term of any agreement or
instrument to which it is a party or by which it is bound, or any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority or
is in violation of any applicable law, ordinance, rule or regulation (including
without limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
28. Taxes
The Obligors and each Subsidiary have filed all income tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
assessments payable by them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent, except for any
taxes and assessments (i) the amount of which is not individually or in the
aggregate Material or (ii) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the Guarantor or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Federal income tax
liabilities of the Obligors and each Subsidiary have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the
fiscal year ended February 24, 1996.
29. Title to Property; Leases
The Obligors and each Subsidiary have good and sufficient
title to their respective Material properties, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by either Obligor or any Subsidiary after said
date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement,
except for those defects in title and Liens that, individually or in the
aggregate, would not have a Material Adverse Effect. All Material leases that
either Obligor or any Subsidiary is party to as lessee are (as against such
Obligor or Subsidiary and, to the best knowledge of the Obligors, as against the
lessor thereunder) valid and subsisting and are in full force and effect in all
material respects.
30. Licenses, Permits, etc
Except as disclosed in Schedule 5.11, the Obligors and each
Subsidiary own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that are Material, without known conflict with the rights of others,
except for those conflicts that, individually or in the aggregate, would not
have a Material Adverse Effect.
31. Compliance with ERISA
(a) The Obligors and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and could not reasonably be
expected to result in a Material Adverse Effect. Neither of the Obligors nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in section 3 of ERISA), and no event, transaction or condition
has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by either Obligor or any ERISA Affiliate, or in
the imposition of any Lien on any of the rights, properties or assets of either
Obligor or any ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans), determined as of the
end of such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities. The term "benefit liabilities"
has the meaning specified in section 4001 of ERISA and the terms "current value"
and "present value" have the meaning specified in section 3 of ERISA.
(c) The Obligors and each ERISA Affiliate have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined
as of the last day of the Guarantor's most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106, without
regard to liabilities attributable to continuation coverage mandated by section
4980B of the Code) of the Guarantor and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes and Guarantees hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Obligors in the first
sentence of this Section 5.12(e) is made in reliance upon and subject to the
accuracy of the Purchasers' representation in Section 6.2 as to, inter alia, the
sources of the funds to be used to pay the purchase price of the Notes to be
purchased by the Purchasers.
32. Private Offering by the Obligors.
Neither the Obligors nor anyone acting on their behalf has
offered the Notes or the Guarantees or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or
negotiated in respect thereof with, any Person other than the Purchasers and not
more than 45 other Institutional Investors, each of which has been offered the
Notes at a private sale for investment. Neither the Obligors nor anyone acting
on their behalf has taken, or will take, any action that would subject the
issuance or sale of the Notes or the Guarantees to the registration requirements
of Section 5 of the Securities Act.
33. Use of Proceeds; Margin Regulations
The Company will apply the proceeds of the sale of the Notes
for the repayment of existing Indebtedness and for general corporate purposes.
No part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation G of the Board of Governors of the Federal
Reserve System (12 CFR 207), or for the purpose of buying or carrying or trading
in any securities under such circumstances as to involve either Obligor in a
violation of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 5% of the value of the consolidated assets of the
Guarantor and its Subsidiaries and the Guarantor does not have any present
intention that margin stock will constitute more than 5% of the value of such
assets. As used in this Section, the terms "margin stock" and "purpose of buying
or carrying" shall have the meanings assigned to them in said Regulation G.
34. Existing Indebtedness
Except as described therein, Part A of Schedule 5.15 sets
forth a complete and correct list of all outstanding Indebtedness of the
Guarantor and its Subsidiaries as of February 22, 1997, since which date there
has been no Material change in the amounts, interest rates, sinking funds,
instalment payments or maturities of the Indebtedness of the Guarantor or its
Subsidiaries. Neither of the Obligors nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Indebtedness of either Obligor or such Subsidiary and no event
or condition exists with respect to any Indebtedness of either Obligor or any
Subsidiary the outstanding principal amount of which exceeds $5,000,000 that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
35. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder with
the benefit of the Guarantees of the Guarantor nor the Company's use of the
proceeds thereof will violate the Trading with the Enemy Act, as amended, or any
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
36. Status under Certain Statutes
Neither of the Obligors nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as
amended, or the Federal Power Act, as amended.
37. Ranking
All liabilities of the Company under the Notes and of the
Guarantor under the Guarantees constitute direct, unconditional and general
obligations of such Obligor and rank in right of payment either pari passu or
senior to all other Indebtedness of such Obligor, except for such Indebtedness
which is preferred as a result of being secured (but then only to the extent of
such security).
38. Subsidiary Guarantees
The representations and warranties of each Subsidiary
Guarantor contained in the Subsidiary Guarantee of such Subsidiary Guarantor are
true and correct as of the date they are made.
39. REPRESENTATIONS OF THE PURCHASER
40. Purchase for Investment
Each Purchaser represents that such Purchaser (i) is an
"accredited investor" within the meaning of Rule 501 under the Securities Act
and (ii) is purchasing the Notes for its own account or for one or more separate
accounts maintained by it or for the account of one or more pension or trust
funds and not with a view to the distribution thereof, provided that the
disposition of such Purchaser's or their property shall at all times be within
such Purchaser's or their control. Each Purchaser understands that the Notes
have not been registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that neither Obligor
is required to register the Notes.
41. Source of Funds
Each Purchaser represents that at least one of the following
statements is an accurate representation as to each source of funds (a "Source")
to be used by such Purchaser to pay the purchase price of the Notes to be
purchased by such Purchaser hereunder:
(a) the Source is an "insurance company general account" (as
the term is defined in PTE 95-60 (issued July 12, 1995)) in respect of
which the reserves and liabilities (as defined by the annual statement
for life insurance companies approved by the National Association of
Insurance Commissioners (the "NAIC Annual Statement")) for the general
account contract(s) held by or on behalf of any employee benefit plan
together with the amount of the reserves and liabilities for the
general account contract(s) held by or on behalf of any other employee
benefit plans maintained by the same employer (or affiliate thereof as
defined in PTE 95-60) or by the same employee organization in the
general account do not exceed 10% of the total reserves and liabilities
of the general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with such
Purchaser's state of domicile; or
(b) the Source is a separate account that is maintained solely
in connection with such Purchaser's fixed contractual obligations under
which the amounts payable, or credited, to any employee benefit plan
(or its related trust) that has any interest in such separate account
(or to any participant or beneficiary of such plan (including any
annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as disclosed by such
Purchaser to the Company in writing pursuant to this paragraph (c), no
employee benefit plan or group of plans maintained by the same employer
or employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (f); or
(g) the Source does not include assets that are or that are
deemed under Department of Labor regulations issued under ERISA to be
assets of any employee benefit plan, other than a plan exempt from the
coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
Notwithstanding the foregoing, if any Purchaser is an
insurance company organized under the laws of a jurisdiction other than the
United States or any political subdivision thereof, such Purchaser represents
that either (i) at least one of the foregoing statements is an accurate
representation as to each Source to be used by such Purchaser to pay the
purchase price of the Notes to be purchased by such Purchaser hereunder or (ii)
in any event, the execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
42. INFORMATION AS TO THE OBLIGORS
43. Financial and Business Information
The Obligors shall deliver to each holder of Notes that is an
Institutional Investor:
44. Quarterly Statements -- within 50 days after the end of
each quarterly fiscal period in each fiscal year of the Guarantor
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
0.0.0.1. a consolidated balance sheet of the
Guarantor and its Restricted Subsidiaries as at the end of
such quarter, and
0.0.0.2. consolidated statements of income, changes
in shareholders' equity and cash flows of the Guarantor and
its Restricted Subsidiaries, for such quarter and (in the case
of the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer of the Guarantor as fairly presenting, in all material
respects, the financial position of the companies being reported on and
their results of operations and cash flows, subject to changes
resulting from year-end adjustments, provided that delivery within the
time period specified above of copies of the Guarantor's Quarterly
Report on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 7.1(a) (so long as
the financial statements contained in said Report conform to the
requirements of clauses (i) and (ii) above including as to the
companies being reported upon);
0.0.0.2.1 Annual Statements -- within 95 days after the end
of each fiscal year of the Guarantor, duplicate copies of,
0.0.0.3. a consolidated balance sheet of the
Guarantor and its Restricted Subsidiaries, as at the end of
such year, and
0.0.0.4. consolidated statements of income, changes
in shareholders' equity and cash flows of the Guarantor and
its Restricted Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Guarantor's Annual Report on Form 10-K for such
fiscal year (together with the Guarantor's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section (b) (so long as the financial
statements contained in said Report conform to the requirements of
clauses (i) and (ii) above, including as to the companies being
reported upon);
0.0.0.4.1 SEC and Other Reports-- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by either Obligor or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement that shall have become effective (without
exhibits except as expressly requested by such holder and other than on
Form S-8), and each final prospectus and amendments thereto filed by
either Obligor or any Subsidiary with the Securities and Exchange
Commission;
0.0.0.4.2 Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer having
actual knowledge of the existence of any Default or Event of Default, a
written notice specifying the nature and period of existence thereof
and what action the Obligors are taking or propose to take with respect
thereto;
0.0.0.4.3 ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Guarantor or the Company or an ERISA Affiliate
proposes to take with respect thereto:
(i) with respect to any Pension Plan, any reportable
event, as defined in section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
hereof; or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan, or
the receipt by either Obligor or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by either Obligor or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of either Obligor or
any ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, would reasonably be expected to have a Material
Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days after a Responsible Officer has actual
knowledge of receipt thereof, copies of any notice to either Obligor or
any Subsidiary from any Federal or state Governmental Authority
relating to any contract, proceeding, order, ruling, statute or other
law or regulation that would reasonably be expected to have a Material
Adverse Effect;
(g) Litigation, etc. -- promptly, and in any event within 30
days after a Responsible Officer having actual knowledge thereof, a
written notice of any legal or arbitral proceeding (or any order,
decree or judgment relating thereto) affecting either Obligor or any
Subsidiary that would reasonably be expected to have a Material Adverse
Effect; and
(h) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of either Obligor or
any Subsidiary or relating to the ability of the Obligors to perform
their respective obligations hereunder and under the Notes and the
Guarantees as from time to time may be reasonably requested by any such
holder of Notes.
0.0.0.4.4. Officer's Certificate
Each set of financial statements delivered to a holder of
Notes pursuant to Section (a) or Section (b) shall be accompanied by a
certificate of a Senior Financial Officer of the Guarantor setting forth:
0.0.0.4.5 Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Obligors were in compliance with the requirements of Sections 10.3(k),
10.4(c), 10.5(e), 10.6, 10.7 and 10.8 during the quarterly or annual
period covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation of
the amount, ratio or percentage then in existence); and
0.0.0.4.6. Event of Default -- a statement that such officer
has reviewed the relevant terms hereof and has made, or caused to be
made, under his or her supervision, a review of the transactions and
conditions of the Guarantor and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of either
Obligor or any Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action
the Obligors shall have taken or propose to take with respect thereto.
0.0.0.4.7 Inspection
The Obligors shall permit the representatives of each holder
of Notes that is an Institutional Investor:
0.0.0.4.8 No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Obligors, to visit the principal executive office of the
Guarantor and the Company, to discuss the affairs, finances and
accounts of the Guarantor and the Company and their Subsidiaries with
the Guarantor's or the Company's officers, and, with the consent of the
Guarantor or the Company, as the case may be (which consent will not be
unreasonably withheld), to visit the other offices and properties of
the Guarantor and the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in
writing; and
0.0.0.4.9 Default -- if a Default or Event of Default then
exists, at the expense of the Obligors, to visit and inspect any of the
offices or properties of the Guarantor, the Company or any Subsidiary,
to examine all their respective books of account, records, reports and
other papers, to make copies and extracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the
Obligors authorize said accountants to discuss the affairs, finances
and accounts of the Obligors and their Subsidiaries), all at such times
and as often as may be requested.
0.0.0.4.10 PREPAYMENT OF THE NOTES
0.0.0.4.11 Maturity.
As provided therein, the entire unpaid principal amount of the
Series A Notes and Series B Notes shall be due and payable on May 15, 2004 and
May 15, 2007, respectively.
0.0.0.4.12 Optional Prepayments with Make-Whole Amount
The Company may, at its option, upon notice as provided below,
prepay at any time all, or from time to time any part of, the Notes, in an
amount not less than 5% of the aggregate principal amount of the Notes then
outstanding in the case of a partial prepayment, at 100% of the principal amount
so prepaid, together with interest on such principal amount accrued to such date
and the applicable Make-Whole Amounts determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2 not less than
30 days and not more than 60 days prior to the date fixed for such prepayment.
Each such notice shall specify such date (which shall be a Business Day), the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid, and shall be accompanied by
a certificate of a Senior Financial Officer as to the estimated Make-Whole
Amounts due in connection with such prepayment (calculated as if the date of
such notice were the date of the prepayment), setting forth the details of such
computation. Two Business Days prior to such prepayment, the Company shall
deliver to each holder of Notes a certificate of a Senior Financial Officer
specifying the calculation of such Make-Whole Amounts as of the specified
prepayment date.
0.0.0.4.13 Allocation of Partial Prepayments
In the case of each partial prepayment of the Notes, the
Company will prepay the same percentage of the unpaid principal amount of the
Notes of each series and the principal amount of the Notes of each series to be
prepaid shall be allocated among all of the Notes of such series at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
0.0.0.4.14 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
0.0.0.4.15 Purchase of Notes
Neither Obligor will nor will either Obligor permit any
Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement and the
Notes or (b) pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes at the time outstanding upon the
same terms and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision with respect to
such offer, and shall remain open for at least 10 Business Days. If the holders
of more than 50% of the principal amount of the Notes then outstanding accept
such offer, the Company shall promptly notify the remaining holders of such fact
and the expiration date for the acceptance by holders of Notes of such offer
shall be extended by the number of days necessary to give each such remaining
holder at least 5 Business Days from its receipt of such notice to accept such
offer. The Company will promptly cancel all Notes acquired by either Obligor or
any such Affiliate pursuant to any payment, prepayment or purchase of Notes
pursuant to any provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
0.0.0.4.16 Make-Whole Amount
The term "Make-Whole Amount" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 678" on the
Telerate Access Service (or such other display as may replace Page 678
on Telerate Access Service) for actively traded U.S. Treasury
securities having a maturity equal to the remaining term of such Note
as of such Settlement Date, or (ii) if such yields are not reported as
of such time or the yields reported as of such time are not
ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
U.S. Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the remaining term of such Note as
of such Settlement Date. Such implied yield will be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the actively traded U.S.
Treasury security with the duration closest to and greater than the
remaining term of such Note and (2) the actively traded U.S. Treasury
security with the duration closest to and less than the remaining term
of such Note.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
0.0.0.4.17 AFFIRMATIVE COVENANTS
The Company and the Guarantor jointly and severally covenant
that so long as any of the Notes are outstanding:
0.0.0.4.18 Compliance with Law
The Obligors will and will cause each of their Subsidiaries to
comply with all laws, ordinances or governmental rules or regulations to which
each of them is subject, including, without limitation, Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations would not, individually or in the aggregate, have a
Material Adverse Effect.
0.0.0.4.19 Insurance
The Obligors will and will cause each of their Restricted
Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
0.0.0.4.20 Maintenance of Properties
The Obligors will and will cause each of their Restricted
Subsidiaries to maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section shall not
prevent either Obligor or any Restricted Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Guarantor has concluded that
such discontinuance would not, individually or in the aggregate, have a Material
Adverse Effect.
0.0.0.4.21 Payment of Taxes
The Obligors will and will cause each of their Subsidiaries to
file all income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
payable by any of them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, provided that neither of the
Obligors nor any Subsidiary need pay any such tax or assessment if (i) the
amount, applicability or validity thereof is contested by such Obligor or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
such Obligor or such Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of such Obligor or such Subsidiary or (ii) the
nonpayment of all such taxes and assessments in the aggregate would not have a
Material Adverse Effect.
0.0.0.4.22 Corporate Existence, etc.
Subject to Sections 10.2 and 10.8, the Obligors will at all
times preserve and keep in full force and effect their respective corporate
existences, and the Obligors will at all times preserve and keep in full force
and effect the corporate existence of each of their Restricted Subsidiaries and
all rights and franchises of the Obligors and their Restricted Subsidiaries
unless, in the good faith judgment of the Guarantor, the termination of or
failure to preserve and keep in full force and effect the corporate existence of
any Restricted Subsidiary (other than the Company), or any such right or
franchise would not, individually or in the aggregate, have a Material Adverse
Effect.
0.0.0.4.23 Ownership of the Company.
The Guarantor shall at all times own, directly or indirectly,
100% of the capital stock of the Company free and clear of any Lien.
0.0.0.4.24 Ranking
Each Obligor will ensure that, at all times, all liabilities
of such Obligor under the Notes (in the case of the Company) and the Guarantees
(in the case of the Guarantor) will rank in right of payment either pari passu
or senior to all other Indebtedness of such Obligor except for Indebtedness
which is preferred as a result of being secured (but then only to the extent of
such security).
0.0.0.4.25 Subsidiary Guarantors
(a) The Guarantor will ensure that each Subsidiary that has
outstanding a Guaranty with respect to any Indebtedness of the Company or the
Guarantor is a Subsidiary Guarantor.
(b) Upon notice by the Company to each holder of a Note, a
Subsidiary Guarantor shall cease to be a Subsidiary Guarantor and shall be
released from its obligations under its Subsidiary Guarantee if such Subsidiary
Guarantor shall not have outstanding any Guaranty with respect to any
Indebtedness of the Company or the Guarantor.
0.0.0.4.26 NEGATIVE COVENANTS
The Guarantor covenants that so long as any of the Notes are
outstanding:
0.0.0.4.27 Transactions with Affiliates
The Guarantor will not, and will not permit any Restricted
Subsidiary to, enter into directly or indirectly any Material transaction or
Material group of related transactions (including without limitation the
purchase, lease, sale or exchange of properties of any kind or the rendering of
any service) with any Affiliate (other than the Guarantor or another Restricted
Subsidiary), except pursuant to the reasonable requirements of the Guarantor's
or such Restricted Subsidiary's business and upon fair and reasonable terms no
less favorable to the Guarantor or such Restricted Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate.
0.0.0.4.28 Merger, Consolidation, etc
The Guarantor will not, and will not permit any Restricted
Subsidiary to, consolidate with or merge with any other corporation or convey,
transfer or lease substantially all of its assets in a single transaction or
series of transactions to any Person unless:
0.0.0.4.29 in the case of the Guarantor or the Company, the
successor formed by such consolidation or the survivor of such merger
or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Guarantor or the Company as an
entirety, as the case may be, shall be a solvent corporation organized
and existing under the laws of the United States or any State thereof
(including the District of Columbia), and, if the Guarantor or the
Company, as the case may be, is not such corporation, such corporation
shall have executed and delivered to each holder of any Notes its
assumption of the due and punctual performance and observance of each
covenant and condition of (x) this Agreement and the Notes, in the case
of the Company and (y) this Agreement and the Guarantees, in the case
of the Guarantor;
0.0.0.4.30 in the case of any Restricted Subsidiary (other than
the Company), the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of such Restricted
Subsidiary as an entirety, as the case may be, shall be (i) such
Restricted Subsidiary, either Obligor or another Restricted Subsidiary
or (ii) any other Person so long as the Disposition of all of the
assets of such Restricted Subsidiary would have otherwise been
permitted by Section 10.8 (and is treated as a Disposition of the
assets of such Subsidiary for all purposes of Section 10.8); and
0.0.0.4.31 in any case, immediately after giving effect to such
transaction, (i) no Default or Event of Default shall have occurred and
be continuing and (ii) the Guarantor would be permitted by the
provisions of Section 10.6 to incur at least $1.00 of additional
Indebtedness owing to a Person other than a Restricted Subsidiary.
No such conveyance, transfer or lease of substantially all of the assets of the
Guarantor or the Company shall have the effect of releasing the Guarantor or the
Company, as the case may be, or any successor corporation that shall theretofore
have become such in the manner prescribed in this Section 10.2 from its
liability under (x) this Agreement or the Notes, in the case of the Company or
(y) this Agreement or the Guarantees, in the case of the Guarantor.
0.0.0.4.32 Liens
The Guarantor will not, and will not permit any Restricted
Subsidiary to, create, assume, incur or suffer to exist any Lien upon or with
respect to any property or assets, whether now owned or hereafter acquired, of
the Guarantor or any such Subsidiary, unless the Notes are secured equally and
ratably with any and all other obligations secured by such Lien pursuant to
documentation reasonably satisfactory to the Required Holders (including an
opinion of counsel as to the enforceability of such Lien reasonably satisfactory
to the Required Holders), excluding from the operation of this Section:
(a) Liens existing on the date hereof securing Indebtedness of
the Guarantor or any Restricted Subsidiary outstanding on the date
hereof and specified in Part B of Schedule 5.15;
(b) Liens (including Liens securing Capital Lease Obligations)
(i) existing on property at the time of the acquisition thereof by the
Guarantor or a Restricted Subsidiary or (ii) to secure Indebtedness
incurred in connection with the financing of all or a part of the
purchase price or cost of construction of property acquired by the
Guarantor or a Restricted Subsidiary after the date hereof, provided
that (x) in each case the aggregate principal amount of Indebtedness
secured by such Lien in respect of any such property shall not exceed
the lesser of the cost and the fair market value of such property and
no such Lien shall extend to or cover any other property of the
Guarantor or such Subsidiary and (y) in the case of clause (ii) such
Lien shall be created contemporaneously with, or within 180 days after,
the acquisition of such property;
(c) Liens on property of a Person at the time such Person
becomes a Restricted Subsidiary, or such Person merges into or
consolidates with the Guarantor or any Restricted Subsidiary (and not
incurred in anticipation thereof), provided that the aggregate
principal amount of Indebtedness secured by such Lien in respect of any
such property shall not exceed the fair market value of such property
and no such Lien shall extend to or cover any other property of the
Guarantor or such Subsidiary;
(d) Liens on property or assets of any Restricted Subsidiary
securing Indebtedness owing by such Subsidiary to the Guarantor or to
any Wholly-Owned Restricted Subsidiary;
(e) Liens in favor of the United States government or the
government of any State of the United States or any foreign government,
or of any political subdivision of any of the foregoing, to secure
partial, progress, advance or other payments by such government or
political subdivision pursuant to any contract or statute;
(f) Liens incurred or deposits made to secure the performance
of tenders, statutory obligations, surety bonds, bids, performance
bonds and other similar obligations, and Liens (for sums not yet due)
of carriers, warehousemen, mechanics and other similar Liens, in each
case incurred or made in the ordinary course of business and not in
connection with the incurrence of Indebtedness;
(g) Liens incidental to the normal conduct of the business of
the Guarantor or any Restricted Subsidiary or the ownership of their
properties and that are not incurred in connection with the incurrence
of Indebtedness and that do not in the aggregate materially impair the
use of such property in the operation of the business of the Guarantor
and its Subsidiaries taken as a whole, or the value of such property
for the purpose of such business;
(h) Liens created by or resulting from any litigation or legal
proceeding that is effectively stayed while the underlying claims are
being contested in good faith by appropriate proceedings and with
respect to which the Guarantor or such Subsidiary has established
adequate reserves on its books in accordance with GAAP;
(i) any extension, renewal or replacement of any Lien
described in Subsections (a) through (h) above, provided that the
principal amount (or accreted value) of Indebtedness secured thereby
immediately before giving effect to such extension, renewal or
replacement is not increased and such Lien is not extended to any other
property;
(j) Liens for taxes, assessments or governmental charges or
levies, either not yet due and payable or to the extent that nonpayment
thereof is permitted by the proviso to Section 9.4; and
(k) Liens incurred by the Guarantor or any Restricted
Subsidiary in addition to those described in Subsections (a) through
(j) above, provided that, upon the incurrence thereof and immediately
after giving effect thereto, Priority Debt shall not exceed 15% of
Consolidated Assets.
0.0.0.4.33 Sale and Leaseback Transactions
The Guarantor will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless:
(a) such Sale and Leaseback Transaction is between such
Subsidiary and the Guarantor, between such Subsidiary and any
Wholly-Owned Restricted Subsidiary, or between the Guarantor and any
Wholly-Owned Restricted Subsidiary;
(b) the proceeds received by the Guarantor or such Subsidiary
from such Sale and Leaseback Transaction are applied within 180 days of
the date of such transaction to (x) the prepayment of Funded
Indebtedness (and any associated premium) of the Guarantor or such
Subsidiary or (y) the acquisition of assets (other than current assets)
to be used in the ordinary course of business of the Guarantor or such
Subsidiary, as the case may be; or
(c) at the time of entering into such Sale and Leaseback
Transaction and immediately after giving effect thereto, Priority Debt
shall not exceed 15% of Consolidated Assets.
0.0.0.4.34 Subsidiary Indebtedness
The Guarantor will not permit any Restricted Subsidiary (other
than the Company) to create, assume, incur, guarantee or otherwise become liable
in respect of any Indebtedness, excluding from the operation of this Section:
(a) Indebtedness outstanding on the date hereof and
specified in Part C of Schedule 5.15;
(b) Indebtedness secured by any Lien permitted by Section
10.3(b) (or any extension, renewal or replacement thereof permitted
by Section 10.3(i));
(c) Indebtedness owing to the Guarantor or to any
Wholly-Owned Restricted Subsidiary;
(d) Indebtedness of a Person outstanding at the time such
Person becomes a Restricted Subsidiary or such Person merges into or
consolidates with any Restricted Subsidiary (and not incurred in
anticipation thereof); and
(e) Indebtedness in addition to that described in Subsections
(a) through (d) above, provided that, upon the incurrence thereof and
immediately after giving effect thereto, Priority Debt shall not exceed
15% of Consolidated Assets.
For purposes of this Section 10.5, any Indebtedness of an Unrestricted
Subsidiary existing at the time such Unrestricted Subsidiary is designated as a
Restricted Subsidiary shall be deemed to have been incurred at that time.
0.0.0.4.35 Indebtedness
The Guarantor will not, and will not permit any Restricted
Subsidiary to, create, assume, incur, guarantee or otherwise become liable in
respect of any Indebtedness, unless immediately after giving effect thereto and
to the concurrent retirement of any other Indebtedness the ratio of Consolidated
Indebtedness to Consolidated EBDAIT does not exceed 3.5 to 1. For purposes of
this Section 10.6, any Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary shall be deemed to have been incurred at that
time.
0.0.0.4.36 Shareholders' Equity
The Guarantor will not at any time permit Consolidated
Shareholders' Equity to be less than the sum of (i) $268,000,000 plus (ii) an
amount equal to 50% of Consolidated Net Income for each completed fiscal year of
the Guarantor ending after the date hereof (but only if Consolidated Net Income
for such fiscal year is a positive number).
0.0.0.4.37 Disposition of Assets
The Guarantor will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, sell, lease, transfer or otherwise
dispose of (collectively a "Disposition") any of its properties or assets
unless, after giving effect to such proposed Disposition, the aggregate net book
value of all assets that were the subject of a Disposition during the twelve
calendar months immediately preceding the date of such proposed Disposition (the
"Disposition Date") does not exceed 15% of Consolidated Assets as at the end of
the quarterly fiscal period of the Guarantor ended immediately prior to the
Disposition Date. Any Disposition of shares of stock of any Subsidiary shall,
for purposes of this Section, be considered a sale of assets and be valued at an
amount that bears the same proportion to the total assets of such Subsidiary as
the number of such shares bears to the total number of shares of stock of such
Subsidiary. Notwithstanding the foregoing, the following Dispositions shall not
be taken into account under this Section 10.8:
(a) any Disposition of inventory, equipment, fixtures,
supplies or materials made in the ordinary course of business at fair
value;
(b) any Disposition to the Guarantor or to a Wholly-Owned
Restricted Subsidiary; and
(c) any Disposition the net proceeds of which are applied
within 180 days of the related Disposition Date to (x) the repayment of
Funded Indebtedness which by its terms is not subordinated in right of
payment to the Notes (and any associated premium) of the Guarantor or
such Restricted Subsidiary (including, without limitation and at the
sole option of the Company, the Notes pursuant to Section 8.2) or (y)
the acquisition of assets (other than current assets) to be used in the
ordinary course of business of the Guarantor or such Restricted
Subsidiary.
For purposes of this Section 10.8, any designation of a
Restricted Subsidiary to an Unrestricted Subsidiary shall be deemed to be a
Disposition of the assets of such Subsidiary at the time of such designation.
0.0.0.4.38 EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) default shall be made in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) default shall be made in the payment of any interest on
any Note for more than five Business Days after the same becomes due
and payable, or any Subsidiary Guarantor defaults in the payment of any
amount due pursuant to its Subsidiary Guarantee; or
(c) the Guarantor defaults in the performance of or
compliance with any term contained in Section 7.1(d) or
Sections 10.2, 10.4, 10.5, 10.6, or 10.8; or
(d) either Obligor defaults in the performance of or
compliance with any term contained herein (other than those referred to
in paragraphs (a), (b) and (c) of this Section 11), and (provided that,
with respect to any default arising under Section 10.1 or 10.7, such
Obligor is proceeding diligently and in good faith to remedy such
default) such default is not remedied within 30 days after the earlier
of (i) a Responsible Officer obtaining actual knowledge of such default
and (ii) an Obligor receiving written notice of such default from any
holder of a Note (any such written notice to be identified as a "notice
of default" and to refer specifically to this paragraph (d) of Section
11); or
(e) any representation or warranty made in writing by or on
behalf of either Obligor or by any officer of either Obligor in this
Agreement, in writing by or on behalf of any Subsidiary Guarantor or by
any officer of any Subsidiary Guarantor in any Subsidiary Guarantee, or
in any writing furnished in connection with the transactions
contemplated hereby or thereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) either Obligor is in default in the payment of any
amounts due under or in the performance of or compliance with any other
term of the Credit Facility beyond any period of grace provided with
respect thereto, or (ii) the Guarantor or any Restricted Subsidiary is
in default (as principal or as guarantor or other surety) in the
payment of any principal of or premium or make-whole amount or interest
on any Indebtedness that is outstanding in an aggregate principal
amount of at least $25,000,000 beyond any period of grace provided with
respect thereto, or (iii) the Guarantor or any Restricted Subsidiary is
in default in the performance of or compliance with any term of any
evidence of any Indebtedness in an aggregate outstanding principal
amount of at least $25,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other condition exists, and as a
consequence of such default or condition such Indebtedness has become,
or has been declared, due and payable before its stated maturity or
before its regularly scheduled dates of payment; or
(g) the Guarantor, the Company or any Significant Subsidiary
(i) is generally not paying, or admits in writing its inability to pay,
its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Guarantor or any Restricted Subsidiary, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect
to any substantial part of its property, or constituting an order for
relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Guarantor or any
Restricted Subsidiary, or any such petition shall be filed against the
Guarantor or any Restricted Subsidiary and such petition shall not be
dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $25,000,000 are rendered against one or more
of the Guarantor and its Restricted Subsidiaries and which judgments
are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) if (i) any Pension Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Code, (ii) a
notice of intent to terminate any Pension Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate or appoint
a trustee to administer any Pension Plan or the PBGC shall have
notified either Obligor or any ERISA Affiliate that a Pension Plan may
become a subject of any such proceedings, (iii) the aggregate "amount
of unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Pension Plans, determined in accordance
with Title IV of ERISA, shall exceed $25,000,000, (iv) either Obligor
or any ERISA Affiliate shall have incurred or is reasonably expected to
incur any liability pursuant to Title I or IV of ERISA or the penalty
or excise tax provisions of the Code relating to employee benefit
plans, (v) either Obligor or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) either Obligor or any Subsidiary
establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the
liability of either Obligor or any Subsidiary thereunder; and any such
event or events described in clauses (i) through (vi) above, either
individually or together with any other such event or events, would
reasonably be expected to have a Material Adverse Effect; or
(k) any Guarantee shall cease to be in full force and effect
or the Guarantor or any Person acting on behalf of the Guarantor shall
contest in any manner the validity, binding nature or enforceability of
any Guarantee, or any Subsidiary Guarantee shall cease to be in full
force and effect (other than pursuant to Section 9.8(b)) or any
Subsidiary Guarantor or any Person acting on behalf thereof shall
contest in any manner the validity, binding nature or enforceability of
any Subsidiary Guarantee.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
0.0.0.4.39 REMEDIES ON DEFAULT, ETC.
0.0.0.4.40 Acceleration
(a) If an Event of Default with respect to an Obligor
described in paragraph (g) or (h) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (g) or described in clause (vi) of
paragraph (g) by virtue of the fact that such clause encompasses clause (i) of
paragraph (g)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, the Required Holders may at any time at their option, by notice or
notices to the Company, declare all the Notes then outstanding to be immediately
due and payable.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing, any holder or holders of Notes at
the time outstanding affected by such Event of Default may at any time, at its
or their option, by notice or notices to the Company, declare all the Notes held
by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section
12.1, whether automatically or by declaration, such Notes will forthwith mature
and the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the applicable Make-Whole Amounts determined in
respect of such principal amount (to the full extent permitted by applicable
law), shall all be immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which are hereby waived.
The Obligors acknowledge, and the parties hereto agree, that each holder of a
Note has the right to maintain its investment in the Notes free from repayment
by the Obligors (except as herein specifically provided for) and that the
provision for payment of a Make-Whole Amount by the Company in the event that
the Notes are prepaid or are accelerated as a result of an Event of Default, is
intended to provide compensation for the deprivation of such right under such
circumstances.
0.0.0.4.41 Other Remedies
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms hereof or
thereof, or in aid of the exercise of any power granted hereby or thereby or by
law or otherwise.
0.0.0.4.42 Rescission
At any time after any Notes have been declared due and payable
pursuant to paragraph (b) or (c) of Section 12.1, the Required Holders, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Obligors have paid all overdue interest on the
Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due
and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 18, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
0.0.0.4.43 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of
any Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by this Agreement or by any Note upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Obligors under Section 16,
the Obligors will pay to the holder of each Note on demand such further amount
as shall be sufficient to cover all reasonable costs and expenses of such holder
incurred in any enforcement or collection under this Section 12, including,
without limitation, reasonable attorneys' fees, expenses and disbursements.
0.0.0.4.44 GUARANTEE, ETC.
0.0.0.4.45 Guarantee
The Guarantor hereby guarantees to each holder of any Note or
Notes at any time outstanding (a) the prompt payment in full when due (whether
at stated maturity, by acceleration, by optional prepayment or otherwise) of the
principal of and Make-Whole Amounts (if any) and interest on the Notes
(including, without limitation, interest on any overdue principal, Make-Whole
Amount and, to the extent permitted by applicable law, on any overdue interest)
and all other amounts from time to time owing by the Company under this
Agreement and under the Notes (including, without limitation, costs and
expenses), and (b) the prompt performance and observance by the Company of all
covenants, agreements and conditions on its part to be performed and observed
hereunder, in each case strictly in accordance with the terms thereof (such
payments and other obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantor hereby further agrees that if the Company shall
default in the payment or performance of any of the Guaranteed Obligations, the
Guarantor will (x) promptly pay or perform the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration, by optional
prepayment or otherwise) in accordance with the terms of such extension or
renewal and (y) pay to the holder of any Note such amounts, to the extent
lawful, as shall be sufficient to pay the reasonable costs and expenses of
collection or of otherwise enforcing any of such holder's rights under this
Agreement, including, without limitation, reasonable counsel fees.
All obligations of the Guarantor under this Section 13 shall
survive the transfer of any Note, and any obligations of the Guarantor under
this Section 13 with respect to which the underlying obligation of the Company
is expressly stated to survive payment of any Note shall also survive payment of
such Note.
0.0.0.4.46 Obligations Unconditional
(a) The obligations of the Guarantor under Section 13.1
constitute a present and continuing guaranty of payment and not collectibility
and are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Company under
this Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 13.2 that the obligations of the Guarantor hereunder shall be absolute
and unconditional, under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantor
hereunder which shall remain absolute and unconditional as described above:
(1) any amendment or modification of any provision of this
Agreement or any of the Notes or any assignment or transfer thereof,
including without limitation the renewal or extension of the time of
payment of any of the Notes or the granting of time in respect of such
payment thereof, or of any furnishing or acceptance of security or any
additional guarantee or any release of any security or guarantee so
furnished or accepted for any of the Notes;
(2) any waiver, consent, extension, granting of time,
forbearance, indulgence or other action or inaction under or in respect
of this Agreement or the Notes, or any exercise or non-exercise of any
right, remedy or power in respect hereof or thereof;
(3) any bankruptcy, receivership, insolvency,
reorganization, arrangement, readjustment, composition, liquidation
or similar proceedings with respect to the Company or any other
Person or the properties or creditors of any of them;
(4) the occurrence of any Default or Event of Default under,
or any invalidity or any unenforceability of, or any misrepresentation,
irregularity or other defect in, this Agreement, the Notes or any other
agreement;
(5) any transfer of any assets to or from the Company,
including without limitation any transfer or purported transfer to the
Company from any Person, any invalidity, illegality of, or inability to
enforce, any such transfer or purported transfer, any consolidation or
merger of the Company with or into any Person, any change in the
ownership of any shares of capital stock of the Company, or any change
whatsoever in the objects, capital structure, constitution or business
of the Company;
(6) any default, failure or delay, willful or otherwise, on
the part of the Company or any other Person to perform or comply with,
or the impossibility or illegality of performance by the Company or any
other Person of, any term of this Agreement, the Notes or any other
agreement;
(7) any suit or other action brought by, or any judgment in
favor of, any beneficiaries or creditors of, the Company or any other
Person for any reason whatsoever, including without limitation any suit
or action in any way attacking or involving any issue, matter or thing
in respect of this Agreement, the Notes or any other agreement;
(8) any lack or limitation of status or of power,
incapacity or disability of the Company or any trustee or agent
thereof; or
(9) any other thing, event, happening, matter,
circumstance or condition whatsoever, not in any way limited to the
foregoing.
(b) The Guarantor hereby unconditionally waives diligence,
presentment, demand of payment, protest and all notices whatsoever and any
requirement that any holder of a Note exhaust any right, power or remedy against
the Company under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
(c) In the event that the Guarantor shall at any time pay any
amount on account of the Guaranteed Obligations or take any other action in
performance of its obligations hereunder, the Guarantor shall not exercise any
subrogation or other rights hereunder or the Notes and the Guarantor hereby
waives all rights it may have to exercise any such subrogation or other rights,
and all other remedies that it may have against the Company, in respect of any
payment made hereunder unless and until the Guaranteed Obligations shall have
been indefeasibly paid in full. If any amount shall be paid to the Guarantor on
account of any such subrogation rights or other remedy, notwithstanding the
waiver thereof, such amount shall be received in trust for the benefit of the
holders of the Notes and shall forthwith be paid to such holders to be credited
and applied upon the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms hereof. The Guarantor agrees that its obligations
under this Section 13 shall be automatically reinstated if and to the extent
that for any reason any payment (including payment in full) by or on behalf of
the Company is rescinded or must be otherwise restored by any holder of a Note,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, all as though such amount had not been paid.
The guarantee in this Section 13 is a continuing guarantee and
shall apply to the Guaranteed Obligations whenever arising. Each default in the
payment or performance of any of the Guaranteed Obligations shall give rise to a
separate claim and cause of action hereunder, and separate claims or suits may
be made and brought, as the case may be, hereunder as each such default occurs.
0.0.0.4.47 Guarantees Endorsed on the Notes
Each Note shall have endorsed thereon a Guarantee of the
Guarantor in the form of Exhibit 1-C.
0.0.0.4.48 REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
0.0.0.4.49 Registration of Notes
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered in
such register. Prior to due presentment for registration of transfer, the Person
in whose name any Note shall be registered shall be deemed and treated as the
owner and holder thereof for all purposes hereof, and neither Obligor shall be
affected by any notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered holders of Notes.
0.0.0.4.50 Transfer and Exchange of Notes
(a) No holder of a Note shall transfer such Note or any
portion thereof to a Competitor.
(b) Subject to clause (a), upon surrender of any Note at the
principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer (in a standard form)
duly executed by the registered holder of such Note or his attorney duly
authorized in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute and deliver,
at the Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) of the same series in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1-A or 1-B,
as the case may be, and shall have the Guarantee of the Guarantor endorsed
thereon. Each such new Note shall be dated and bear interest from the date to
which interest shall have been paid on the surrendered Note or dated the date of
the surrendered Note if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000 and integral multiples of
$5,000 in excess thereof, provided that if necessary to enable the registration
of transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $500,000. Any transferee, by its acceptance of a Note
registered in its name (or the name of its nominee), shall be deemed to have
made the representation set forth in Section 6.2.
0.0.0.4.51 Replacement of Notes
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
0.0.0.4.52 in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the holder of
such Note is, or is a nominee for, an original Purchaser or another
holder of a Note with a minimum net worth of at least $10,000,000 in
excess of the outstanding principal amount of such Note, such Person's
own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
0.0.0.4.53 in the case of mutilation, upon surrender
and cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note of the same series, dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or mutilated Note if no
interest shall have been paid thereon, and having the Guarantee of the Guarantor
endorsed thereon.
0.0.0.4.54 PAYMENTS ON NOTES
0.0.0.4.55 Place of Payment
Subject to Section 15.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made
in New York, New York at the principal office of The Bank of New York in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
0.0.0.4.56 Home Office Payment
So long as any Purchaser or any nominee of such Purchaser
shall be the holder of any Note, and notwithstanding anything contained in
Section 15.1 or in such Note to the contrary, the Company will pay all sums
becoming due on such Note for principal, Make-Whole Amount, if any, and interest
by the method and at the address specified for such purpose below such
Purchaser's name in Schedule A, or by such other method or at such other address
as such Purchaser shall have from time to time specified to the Company in
writing for such purpose, without the presentation or surrender of such Note or
the making of any notation thereon, except that upon written request of the
Company made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office or at the place of payment most recently designated
by the Company pursuant to Section 15.1. Prior to any sale or other disposition
of any Note held by any Purchaser or any nominee of such Purchaser, such
Purchaser will, at its election, either endorse thereon the amount of principal
paid thereon and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new Note or Notes pursuant
to Section 14.2(b). The Company will afford the benefits of this Section 15.2 to
any Institutional Investor that is the direct or indirect transferee of any Note
purchased by any Purchaser under this Agreement and that has made the same
agreement relating to such Note as the Purchasers have made in this Section
15.2.
0.0.0.4.57 EXPENSES, ETC
0.0.0.4.58 Transaction Expenses
Whether or not the transactions contemplated hereby are
consummated, the Obligors will pay all costs and expenses (including reasonable
attorneys' fees of a special counsel and, if reasonably required, local or other
counsel) incurred by the Purchasers and each other holder of a Note in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement, the Notes or any Subsidiary
Guarantee (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in enforcing
or defending any rights against either Obligor or any Subsidiary Guarantor under
this Agreement, the Notes or any Subsidiary Guarantee, or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Notes or any Subsidiary Guarantee, or by
reason of being a holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the insolvency or
bankruptcy of the Guarantor, the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated hereby and by the
Notes. The Obligors will pay, and will save each Purchaser and each other holder
of a Note harmless from, all claims in respect of any fees, costs or expenses if
any, of brokers and finders (other than those retained by such Purchaser or
other holder).
0.0.0.4.59 Survival
The obligations of the Obligors under this Section 16 will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement, any Subsidiary Guarantee or the
Notes, and the termination of this Agreement.
0.0.0.4.60 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes, the purchase
or transfer by each Purchaser of any Note or portion thereof or interest therein
and the payment of any Note, and may be relied upon (as of when made) by any
subsequent holder of a Note, regardless of any investigation made at any time by
or on behalf of any Purchaser or any other holder of a Note. All statements
contained in any certificate or other instrument delivered by or on behalf of
either Obligor pursuant to this Agreement shall be deemed representations and
warranties of such Obligor under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between the Purchasers and the Obligors and supersede all prior
agreements and understandings relating to the subject matter hereof.
0.0.0.4.61 AMENDMENT AND WAIVER
0.0.0.4.62 Requirements
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Obligors and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of Section 1, 2, 3, 4, 5, 6 or 22, or any defined term (as it
is used therein), will be effective as to any Purchaser unless consented to by
such Purchaser in writing, and (b) no such amendment or waiver may, without the
written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 13, 18 or 21.
0.0.0.4.63 Solicitation of Holders of Notes
0.0.0.4.64 Solicitation. The Obligors will provide each holder
of the Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the
provisions hereof or of the Notes. The Obligors will deliver executed or true
and correct copies of each amendment, waiver or consent effected pursuant to the
provisions of this Section 18 to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
0.0.0.4.65 Payment. Neither Obligor will directly or indirectly
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any holder of
Notes as consideration for or as an inducement to the entering into by any
holder of Notes of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such waiver or amendment.
(c) Consent in Contemplation of Transfer. Any consent made
pursuant to this Section 18 by a holder of Notes that has transferred or has
agreed to transfer its Notes to either Obligor, any Subsidiary or any Affiliate
of either Obligor and has provided or has agreed to provide such written consent
as a condition to such transfer shall be void and of no force or effect except
solely as to such holder, and any amendments effected or waivers granted or to
be effected or granted that would not have been or would not be so effected or
granted but for such consent (and the consents of all other holders of Notes
that were acquired under the same or similar conditions) shall be void and of no
force or effect except solely as to such holder.
0.0.0.4.66 Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 18 applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Obligors without regard to
whether such Note has been marked to indicate such amendment or waiver. No such
amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or impair
any right consequent thereon. No course of dealing between either Obligor and
the holder of any Note nor any delay in exercising any rights hereunder or under
any Note shall operate as a waiver of any rights of any holder of such Note. As
used herein, the term "this Agreement" and references thereto shall mean this
Agreement as it may from time to time be amended or supplemented.
0.0.0.4.67 Notes held by Obligor, etc.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by either Obligor or any
Affiliate of either Obligor shall be deemed not to be outstanding.
0.0.0.4.68 NOTICES
All notices and communications provided for hereunder shall be
in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
0.0.0.5. if to any Purchaser or its nominee, to
such Purchaser or nominee at the address specified for such
communications in Schedule A, or at such other address as such
Purchaser or nominee shall have specified to the Company in writing,
0.0.0.6. if to any other holder of any Note, to
such holder at such address as such other holder shall have specified
to the Company in writing,
0.0.0.7. if to the Company, to the Company at its
address set forth at the beginning hereof to the attention of the
Chief Financial Officer, with a copy to the General Counsel, or at
such other address as the Company shall have specified to the holder
of each Note in writing, or
0.0.0.8. if to the Guarantor, to the Guarantor at its address
set forth at the beginning hereof to the attention of the Chief
Financial Officer, with a copy to the General Counsel, or at such other
address as the Guarantor shall have specified to the holder of each
Note in writing.
Notices under this Section 19 will be deemed given only when actually received.
0.0.0.8.1 REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by any Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such Purchaser
may destroy any original document so reproduced. The Obligors agree and
stipulate that, to the extent permitted by applicable law, any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by such Purchaser in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 20
shall not prohibit an Obligor or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
0.0.0.8.2 CONFIDENTIAL INFORMATION
For the purposes of this Section 21, "Confidential
Information" means information delivered to any Purchaser by or on behalf of
either Obligor or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise adequately identified
when received by such Purchaser as being confidential information of such
Obligor or such Subsidiary, provided that such term does not include information
that (a) was publicly known or otherwise known to such Purchaser prior to the
time of such disclosure, (b) subsequently becomes publicly known through no act
or omission by such Purchaser or any Person acting on such Purchaser's behalf,
(c) otherwise becomes known to such Purchaser other than through disclosure by
an Obligor or any Subsidiary or (d) constitutes financial statements delivered
to such Purchaser under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to such Purchaser, provided
that such Purchaser may deliver or disclose Confidential Information to (i) such
Purchaser's directors, officers and employees (to the extent such disclosure
reasonably relates to the administration of the investment represented by such
Purchaser's Notes), (ii) such Purchaser's affiliates, agents, attorneys,
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information in accordance with the terms of this
Section 21, (iii) any other holder of any Note, (iv) any Institutional Investor
to which such Purchaser sells or offers to sell such Note or any part thereof or
any participation therein (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 21), (v) any Person from which such Purchaser offers to purchase any
security of an Obligor (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 21), (vi) any federal or state regulatory authority having jurisdiction
over such Purchaser, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser's investment portfolio or
(viii) any other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (x) subject to the next succeeding sentence, in
response to any subpoena or other legal process, (y) subject to the next
succeeding sentence, in connection with any litigation to which such Purchaser
is a party or (z) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under such Purchaser's Notes, this Agreement or any
Subsidiary Guarantee. If any Purchaser is required in respect of any subpoena or
other legal process or in connection with any litigation to disclose any
Confidential Information, it is agreed that, to the extent permitted by law,
such Purchaser will use its best efforts to provide the Company with prompt
notice of such requirement so that the Company may seek an appropriate
protective order. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 21 as though it were a party to this Agreement. On reasonable request by
an Obligor in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Obligors
embodying the provisions of this Section 21.
0.0.0.8.3 SUBSTITUTION OF PURCHASER
Each Purchaser shall have the right to substitute any one of
such Purchaser's Affiliates as the purchaser of the Notes that such Purchaser
has agreed to purchase hereunder, by written notice to the Company, which notice
shall be signed by both such Purchaser and such Affiliate, shall contain such
Affiliate's agreement to be bound by this Agreement and shall contain a
confirmation by such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of such notice, any
reference to such Purchaser in this Agreement (other than in this Section 22)
shall be deemed to refer to such Affiliate in lieu of such original Purchaser.
In the event that such Affiliate is so substituted as a purchaser hereunder and
such Affiliate thereafter transfers to such original Purchaser all of the Notes
then held by such Affiliate, upon receipt by the Company of notice of such
transfer, any reference to such Affiliate as a "Purchaser" in this Agreement
(other than in this Section 22) shall no longer be deemed to refer to such
Affiliate, but shall refer to such original Purchaser, and such original
Purchaser shall again have all the rights of an original holder of the Notes
under this Agreement.
0.0.0.8.4 MISCELLANEOUS
0.0.0.8.5 Successors and Assigns
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
0.0.0.8.6 Payments Due on Non-Business Days
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.
0.0.0.8.7 Severability
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
0.0.0.8.8 Construction
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
0.0.0.8.9 Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
0.0.0.8.10 Governing Law
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of New York excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company and the Guarantor.
Very truly yours,
GTECH CORPORATION
By
Title:
GTECH HOLDINGS CORPORATION
By
Title:
The foregoing is hereby
agreed to as of the
date thereof.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By__________________________
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By__________________________
Title:
ALLSTATE LIFE INSURANCE COMPANY
By__________________________
Name:
By__________________________
Name:
Authorized Signatories
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
AMERICAN GENERAL LIFE
INSURANCE COMPANY
By__________________________
Title:
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
By__________________________
Title:
THE GUARDIAN INSURANCE AND
ANNUITY COMPANY, INC.
By__________________________
Title:
FORT DEARBORN LIFE INSURANCE
COMPANY
By__________________________
Title:
HARTFORD LIFE INSURANCE COMPANY
By__________________________
Title:
HARTFORD FIRE INSURANCE COMPANY
By__________________________
Title:
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY
By__________________________
Title:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By__________________________
Title:
FIRST PENN-PACIFIC LIFE
INSURANCE COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By__________________________
Title:
LINCOLN NATIONAL REASSURANCE
COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By__________________________
Title:
LINCOLN NATIONAL REINSURANCE
COMPANY (BARBADOS) LTD.
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By__________________________
Title:
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By__________________________
Title:
LIFE INVESTORS INSURANCE COMPANY
OF AMERICA
By__________________________
Title:
MONUMENTAL LIFE INSURANCE COMPANY
By__________________________
Title:
PFL LIFE INSURANCE COMPANY
By__________________________
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By__________________________
Title:
THE EQUITABLE OF COLORADO, INC.
By__________________________
Title:
RELIASTAR BANKERS SECURITY
LIFE INSURANCE COMPANY
By__________________________
Title:
RELIASTAR LIFE INSURANCE COMPANY
By__________________________
Title:
RELIASTAR UNITED SERVICES
LIFE INSURANCE COMPANY
By__________________________
Title:
NORTHERN LIFE INSURANCE COMPANY
By__________________________
Title:
WASHINGTON SQUARE ADVISORS
PRIVATE PLACEMENT TRUST FUND
By__________________________
Its: Investment Advisor and
Authorized Signatory
KEYPORT LIFE INSURANCE COMPANY
By Stein Roe & Farnham
Incorporated, as Agent
By__________________________
Senior Vice President
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By CIGNA Investments, Inc.
By__________________________
Name:
Title:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on
behalf of one or more
separate accounts
By CIGNA Investments, Inc.
By__________________________
Name:
Title:
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By CIGNA Investments, Inc.
By__________________________
Name:
Title:
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By__________________________
Title:
By__________________________
Title:
AMERICAN LIFE & CASUALTY INSURANCE COMPANY
By__________________________
Title:
By__________________________
Title:
INFORMATION RELATING TO PURCHASERS
Name and Address of Purchaser Series Principal Amount
THE NORTHWESTERN MUTUAL A $10,000,000
LIFE INSURANCE COMPANY B $20,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
16 Wall Street
Insurance Unit, 4th Floor
New York, NY 10005
ABA #021001033
Name: The Northwestern Mutual Life Insurance Company
Account No.: 00-000-027
with sufficient information to identify the source and application of
such funds, including the PPN of the issue.
(2) Address for all notices in respect of payment and written
confirmations of such wire transfers:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Investment Operations
Telecopy: (414) 299-5714
(3) Securities to be delivered to:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Mark C. Boyle, Law Department
Telecopy: (414) 299-7016
(4) Address for all other communications:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Securities Department
Telecopy: (414) 299-7124
(5) The Northwestern Mutual Life Insurance Company
Tax ID No. 39-0509570
Name and Address of Purchaser Series Principal Amount
TEACHERS INSURANCE AND ANNUITY B $30,000,000
ASSOCIATION OF AMERICA
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
ABA No. 021000021
New York, New York
Account of: Teachers Insurance and Annuity
Association of America
Account Number: 910-2-766475
On order of: GTECH Corporation
with sufficient information to identify the source and application of
such funds as "GTECH Corporation 7.87% Series B Guaranteed Senior Notes
due 2007 (principal or interest).
(2) Address for all notices in respect of payments and written
confirmations of such wire transfers:
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Securities Accounting Division
Telephone: (212) 916-4188
Telecopy: (212) 916-6955
(3) Address for all other communications:
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Securities Division, Private Placements
Telephone: (212) 916-4720 (F. Haifen Tao)
(212) 490-9000 (general)
Telecopy: (212) 916-6582
(4) Teachers Insurance and Annuity Association of America Tax ID No.
13-1624203
Name and Address of Purchaser Series Principal Amount
ALLSTATE LIFE INSURANCE COMPANY A $11,000,000
A $5,500,000
A $3,000,000
A $5,500,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account # 168-117-0
ORG = GTECH Corporation
OBI = DPP
with sufficient information to identify the source and application of
such funds, including the PPN preceded by "DPP", payment date, and
principal, premium or interest on the security.
(2) Address for all notices in respect of payments and written
confirmations of such wire transfers:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402- 8709
Telecopy: (847) 402-7331
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
Citicorp Center, 500 West Madison
4th Floor, Zone 6
Chicago, IL 60661-2591
Attention: Misty Gniadek
For Allstate Life Insurance Company/
Safekeeping Account No. 846627
(4) Address for all other communications and notices:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, IL 60062-7127
Telephone: (847) 402-4394
Telecopy: (847) 402-3092
(5) Allstate Life Insurance Company
Tax ID No. 36-2554642
Name and Address of Purchaser Series Principal Amount
THE VARIABLE ANNUITY LIFE B $15,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
ABA #011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: The Variable Annuity Life Insurance Company
AC-0125-821-9
OBI = PPN # and description of payment
Fund Number PA 54
with sufficient information to identify the source and application of
such funds, including the PPN #, interest rate, maturity date, interest
amount, principal amount and premium amount, if applicable.
(2) Address for all notices in respect of payment and all other
communications:
The Variable Annuity Life
Insurance Company and PA 54
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
1776 Heritage Drive
North Quincy, MA 02171
Telecopy: (617) 985-4923
(3) Duplicate payment notices and all other correspondence:
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Overnight Mail Address:
2929 Allen Parkway
Houston, Texas 77019-2155
Telecopy: (713) 831-1366
(4) The Variable Annuity Life Insurance Company
Tax ID No. 74-1625348
Name and Address of Purchaser Series Principal Amount
AMERICAN GENERAL LIFE B $10,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
ABA #011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: American General Life Insurance Company
AC-0125-880-5
OBI = PPN # and description of payment
Fund Number PA 40
with sufficient information to identify the source and application of
such funds, including the PPN #, interest rate, maturity date, interest
amount, principal amount and premium amount, if applicable.
(2) Address for all notices in respect of payment and all other
communications:
American General Life
Insurance Company and PA 40
c/o State Street Bank and Trust Company
Insurance Services Custody (AH2)
1776 Heritage Drive
North Quincy, MA 02171
Telecopy: (617) 985-4923
(3) Duplicate payment notices and all other correspondence:
American General Life Insurance Company
c/o American General Corporation
Attn: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Overnight Mail Address:
2929 Allen Parkway
Houston, Texas 77019-2155
Telecopy: (713) 831-1366
(4) American General Life Insurance Company
Tax ID No. 25-0598210
Name and Address of Purchaser Series Principal Amount
THE GUARDIAN LIFE INSURANCE B $5,000,000
COMPANY OF AMERICA B $5,000,000
B $5,000,000
B $5,000,000
(Note registered in the name of Cudd & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
The Chase Manhattan Bank FED ABA #021000021 CHASE/NYC/CTR/BNF A/C
900-9-000200 The Guardian A/C #G05978
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
The Guardian Life Insurance Company of America
Attn: Investment Accounting M-IA
201 Park Avenue South
New York, NY 10003
Telecopy: (212) 677-9023
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza
Ground Floor/Receive Window
New York, NY 10081
Re: The Guardian Account #G05978
Attention: Frank Taylor (212-623-8125)
(4) Address for all other communications and notices:
The Guardian Life Insurance Company of America
201 Park Avenue South
New York, NY 10003
Attn: Raymond J. Henry
Investment Department 7B
Telecopy: (212) 777-6715
(5) Cudd & Co. Tax ID No. 13-6022143
Name and Address of Purchaser Series Principal Amount
THE GUARDIAN INSURANCE AND A $3,000,000
ANNUITY COMPANY, INC.
(Note registered in the name of Sigler & Company)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
ABA #021000021
For account #544755102
Reference #MR9228419
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
The Guardian Life Insurance Company of America
Attn: Investment Accounting MIA
201 Park Avenue South
New York, NY 10003
Telecopy: (212) 677-9023
(3) Securities to be delivered to:
Chase Manhattan Bank
Attn: Frank Taylor
4 New York Plaza
Ground Floor/Receive Window
New York, NY 10004
Re: Account # at Chase: MR9228419
(4) Address for all other communications and notices:
The Guardian Life Insurance Company of America
201 Park Avenue South
New York, NY 10003
Attn: Raymond J. Henry
Investment Department 7B
Telecopy: (212) 777-6715
Portfolio Manager: Raymond Henry (212) 598-7995
Inquires concerning confirmations:
Dorene Smith (212) 598-8234
(5) Sigler & Company Tax ID No. 13-3641527
Name and Address of Purchaser Series Principal Amount
FORT DEARBORN LIFE A $2,000,000
INSURANCE COMPANY
(Note registered in the name of Var & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
First Bank Minneapolis
ABA #091000022
For further credit to First Trust Illinois
Account 1-801-21167365
Wire Clearing Account 47300098
Attn: A/C #78693302 Fort Dearborn Life
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and all other
communications:
Fort Dearborn Life Insurance Company
c/o Guardian Asset Management Corp.
Fixed Income Securities
201 Park Avenue South - 8B
New York, NY 10003
Direct inquires concerning confirmations:
Helaine Linder (212) 598-8239
(3) Securities to be delivered to:
First Trust N.A.
Attn: Physical Unit
Asset Settlement Services
Fourth Floor
180 East 5th Street
St. Paul, MN 55101
(5) Var & Co. Tax ID No.
41-6026203
Name and Address of Purchaser Series Principal Amount
HARTFORD LIFE INSURANCE COMPANY A $4,000,000
B $3,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
4 New York Plaza
New York, NY 10004
Bank ABA #021000021
Chase NYC/Cust
A/C #900-9-000200 for F/C/T G 06641 - CRC
Attn: Bond Interest/Principal -
GTECH Corporation Guaranteed Senior Notes
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-3857
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
New York, NY 10004
Custody Account Number: G-06641*
Account Name: Hartford Life
Insurance Company - CRC
*Account number must appear on outside of envelope enclosing physical
securities.
(4) Address for all other communications and notices:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-4906
(5) Hartford Life Insurance Company
Tax ID No. 06-0974148
Name and Address of Purchaser Series Principal Amount
HARTFORD FIRE INSURANCE COMPANY A $6,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
4 New York Plaza
New York, NY 10004
Bank ABA #021000021
Chase NYC/Cust
A/C #900-9-000200 for F/C/T G 06244 - FHO
Attn: Bond Interest/Principal -
GTECH Corporation Guaranteed Senior Notes
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-3857
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
New York, NY 10004
Custody Account Number: G-06244*
Account Name: Hartford Fire
Insurance Company - FHO
*Account number must appear on outside of envelope enclosing physical
securities.
(4) Address for all other communications and notices:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-4906
(5) Hartford Fire Insurance Company
Tax ID No. 06-0383750
Name and Address of Purchaser Series Principal Amount
HARTFORD LIFE INSURANCE COMPANY B $6,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
4 New York Plaza
New York, NY 10004
Bank ABA #021000021
Chase NYC/Cust
A/C #900-9-000200 for F/C/T G 06612 - HVA
Attn: Bond Interest/Principal -
GTECH Corporation Guaranteed Senior Notes
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-3857
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
New York, NY 10004
Custody Account Number: G-06612*
Account Name: Hartford Life
Insurance Company - HVA
*Account number must appear on outside of envelope enclosing physical
securities.
(4) Address for all other communications and notices:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-4906
(5) Hartford Life Insurance Company
Tax ID No. 06-0974148
Name and Address of Purchaser Series Principal Amount
HARTFORD LIFE AND ACCIDENT B $6,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
4 New York Plaza
New York, NY 10004
Bank ABA #021000021
Chase NYC/Cust
A/C #900-9-000200 for F/C/T G 06956 - EBD
Attn: Bond Interest/Principal -
GTECH Corporation Guaranteed Senior Notes
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-3857
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
New York, NY 10004
Custody Account Number: G-06956*
Account Name: Hartford Life and Accident
Insurance Company - EBD
*Account number must appear on outside of envelope enclosing physical
securities.
(4) Address for all other communications and notices:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744
Hartford, CT 06114-1744
Telecopy: (860) 843-4906
(5) Hartford Life Insurance Company
Tax ID No. 06-0838648
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $4,500,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (UIN)
Custody Account Number: 98127
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $2,500,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (IAD)
Custody Account Number: 98195
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $2,500,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (IDP)
Custody Account Number: 98131
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $2,500,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (CRP)
Custody Account Number: 98231
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $5,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (IAL)
Custody Account Number: 98194
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $1,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (REO)
Custody Account Number: 98149
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
THE LINCOLN NATIONAL LIFE B $1,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY: ABA #021001033
Private Placement Processing
A/C #99-911-145
The Lincoln National Life Insurance Company (FRA)
Custody Account Number: 98187
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Bankers Trust Company
Attn: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
(3) Securities to be delivered to:
Bankers Trust Company
14 Wall Street
4th Floor, Window #44
New York, NY 10005
Attn: Lorraine Squires
Mail Stop 4049
Telephone: (212) 618-2200
(4) Address for all other communications and notices:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investments/Private Placements
(5) The Lincoln National Life Insurance Company
Tax ID No. 35-0472300
Name and Address of Purchaser Series Principal Amount
FIRST PENN-PACIFIC LIFE B $4,500,000
INSURANCE COMPANY
(Note registered in the name of CUDD & CO.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
New York, NY
ABA #021000021
A/C #900-9-000200
Further Credit to A/C: G-05996 First Penn-Pacific
Life Insurance Company
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investment/Private Placements
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza, 11th Floor
New York, NY 10004
Attn: Larry Zimmer
For Account: G-05996 First Penn-Pacific Life Insurance Company
(4) CUDD & CO. Tax ID No.
23-2044248
Name and Address of Purchaser Series Principal Amount
LINCOLN NATIONAL REASSURANCE B $1,000,000
COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
New York, NY
ABA #021000021
Chase NYC/CTR/BNF
A/C #900-9-000200
Further Credit to: G-06322 Lincoln National Reassurance
Company
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investment/Private Placements
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza, 11th Floor
New York, NY 10004
Attn: Larry Zimmer
For Account: G-06322 Lincoln National
Reassurance Company
(4) Lincoln National Reassurance Company
Tax ID No. 06-1067046
Name and Address of Purchaser Series Principal Amount
LINCOLN NATIONAL REINSURANCE B $500,000
COMPANY (BARBADOS) LTD.
(in Trust for Magna
Insurance Company)
(Note Registered in the name of Lincoln National Reinsurance Company
(Barbados) Ltd.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase Manhattan Bank
New York, NY
ABA #021000021
Chase NYC/CTR/BNF
A/C #900-9-000200
Further Credit to: G-06910 Lincoln National Reins Co
(Barbados) Ltd. (in Trust for Magna Ins Co)
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, IN 46802
Attn: Investment/Private Placements
(3) Securities to be delivered to:
Chase Manhattan Bank
4 New York Plaza, 11th Floor
New York, NY 10004
Attn: Larry Zimmer
For Account: G-06910 Lincoln National Reins Co (Barbados) Ltd.
(in Trust for Magna Ins Co)
(4) Lincoln National
Reinsurance
Company
(Barbados) Ltd.
Tax ID No.
35-1716060
Name and Address of Purchaser Series Principal Amount
PACIFIC MUTUAL LIFE A $2,000,000
INSURANCE COMPANY A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
A $2,000,000
(Notes registered in the name of Atwell & Co)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
BBK = Chase Manhattan Bank/SSTO
ABA #021000021
A/C #900-9-002206
A/C Name: Pacific Mutual General Account
Sub A/C #47363300
Regarding: Security Description & PPN
with sufficient information to identify the source and application of
such funds.
(2) Securities to be delivered to:
The Chase Manhattan Bank
4 New York Plaza
11th Floor Window
New York, NY 10004
Attn: Dave Calderon/Willie Frontis
(212) 623-8122/8119
A/C Name: Pacific Mutual General Account
A/C #89930705
(3) Atwell & Co
General Tax ID No. 95-1079000
Private Placement Tax ID
No. 13-6065575
Name and Address of Purchaser Series Principal Amount
LIFE INVESTORS INSURANCE A $5,000,000
COMPANY OF AMERICA
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Citibank, N.A.
111 Wall Street New York, NY 10043 ABA #021000089 DDA #36112805 Custody
Account #847658
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
AEGON USA Investment Management, Inc.
Attn: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) Address for all other communications and notices:
AEGON USA Investment Management, Inc.
Attn: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Telecopy: (319) 369-2666
(5) Life Investors Insurance Company of America
Tax ID No. 42-0191090
Name and Address of Purchaser Series Principal Amount
MONUMENTAL LIFE A $5,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Citibank, N.A.
111 Wall Street New York, NY 10043 ABA #021000089 DDA #36112805 Custody
Account #847785
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
AEGON USA Investment Management, Inc.
Attn: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) Address for all other communications and notices:
AEGON USA Investment Management, Inc.
Attn: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Telecopy: (319) 369-2666
(5) Monumental Life Insurance Company
Tax ID No. 52-0419790
Name and Address of Purchaser Series Principal Amount
PFL LIFE INSURANCE COMPANY A $5,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Citibank, N.A.
111 Wall Street New York, NY 10043 ABA #021000089 DDA #36112805 Custody
Account #847659
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
AEGON USA Investment Management, Inc.
Attn: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) Address for all other communications and notices:
AEGON USA Investment Management, Inc.
Attn: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Telecopy: (319) 369-2666
(5) PFL Life Insurance Company
Tax ID No. 39-0989781
Name and Address of Purchaser Series Principal Amount
THE EQUITABLE LIFE ASSURANCE A $12,000,000
SOCIETY OF THE UNITED STATES
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
The Chase Manhattan Bank, N.A.
1251 Avenue of the Americas
New York, NY 10020
ABA #021-00-0021
Account Name: The Equitable Life Assurance Society of
the United States
Account #037-2-409417
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment, written
confirmation of such wire transfer and all other communications and
notices:
The Equitable Life Assurance
Society of the United States
c/o Alliance Capital Management, L.P.
1345 Avenue of the Americas
New York, NY 10105
Att: Fixed Income Credit
Research Division, 38th Floor
Telephone: (212) 969-1488
Telecopy: (212) 969-1466
(3) Securities to be delivered to:
The Equitable Life Assurance
Society of the United States
1290 Avenue of the Americas, 12th Floor
New York, NY 10104
Attn: Cheryl L. Weitman
(212) 314-4141
(4) The Equitable Life
Assurance
Society of the
United States
Tax ID No.
13-5570651
Name and Address of Purchaser Series Principal Amount
THE EQUITABLE OF COLORADO, INC. A $3,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
The Chase Manhattan Bank, N.A.
1251 Avenue of the Americas
New York, NY 10020
ABA #021-00-0021
Account Name: The Equitable of Colorado, Inc.
Account #037-2-406389
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment, written
confirmation of such wire transfer and all other communications and
notices:
The Equitable of Colorado, Inc.
c/o Alliance Capital Management, L.P.
135 West 50th Street, 5th Floor
New York, NY 10020
Attn: Treasury Service
(3) Securities to be delivered to:
The Equitable Life Assurance
Society of the United States
1290 Avenue of the Americas, 12th Floor
New York, NY 10104
Attn: Cheryl L. Weitman
(212) 314-4141
(4) The Equitable of Colorado, Inc.
Tax ID No. 13-3198083
Name and Address of Purchaser Series Principal Amount
AMERICAN LIFE & CASUALTY A $5,000,000
INSURANCE COMPANY B $10,000,000
(Notes registered in the name of SALKELD & CO.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust Company
New York, NY
ABA #021-001-033
DDA #00314421
FFC: American Life & Casualty Insurance Company
Account #99810
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Conseco Capital Management, Inc.
c/o American Life & Casualty Insurance Company
P.O. Box 1925
Carmel, IN 46032
Attn: Account Documentation
with a copy to:
Conseco, Inc.
c/o American Life & Casualty Insurance Company
P.O. Box 1911
Carmel, IN 46032
Attn: Investment Accounting
(3) Securities to be delivered to:
Bankers Trust Company
16 Wall Street
Fourth Floor, Window 62
FFC: American Life & Casualty Insurance Company
Account #99810
(4) American Life & Casualty Insurance Company
Tax ID No. 45-0103436
Name and Address of Purchaser Series Principal Amount
RELIASTAR BANKERS SECURITY A $2,000,000
LIFE INSURANCE COMPANY
(Note registered in the name of SIGLER & CO.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
The Chase Manhattan Bank
New York, NY
A/C #544755102
F/C #1960 Dept 571 NonStandard Securities
Bank ABA #021000021
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 700
Minneapolis, MN 55401-2121
Attn: Tim Warrick
Telephone: (612) 372-5258
Telecopy: (612) 372-5368
(3) Securities to be delivered to:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 700
Minneapolis, MN 55401-2121
Attn: Peggy Herbst
(4) Address for all other communications and notices:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 700
Minneapolis, MN 55401-2121
Attn: Tim Warrick
(5) SIGLER & CO. Tax ID No.
53-0242530
Name and Address of Purchaser Series Principal Amount
RELIASTAR LIFE A $3,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
First National Bank N.A./Mpls
601 2nd Avenue South
Account #1102-4001-4461
Bank ABA #091000022
Attn: Securities Accounting
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
Telephone: (612) 372-5258
Telecopy: (612) 372-5368
(3) Securities to be delivered to:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Peggy Herbst
(4) Address for all other communications and notices:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
(5) ReliaStar Life Insurance Company
Tax ID No. 41-0451140
Name and Address of Purchaser Series Principal Amount
RELIASTAR UNITED SERVICES LIFE A $2,000,000
INSURANCE COMPANY
(Note registered in the name of SALKELD & CO.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bankers Trust
New York, NY
ABA #021001033
A/C #99-911-145
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
Telephone: (612) 372-5258
Telecopy: (612) 372-5368
(3) Securities to be delivered to:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Peggy Herbst
(4) Address for all other communications and notices:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
(5) SALKELD & CO. Tax ID No.
53-0159267
Name and Address of Purchaser Series Principal Amount
NORTHERN LIFE INSURANCE COMPANY A $3,000,000
B $2,000,000
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
First National Bank N.A./Mpls
601 2nd Avenue South
Account #1602-3237-6105
Bank ABA #091000022
Attn: Securities Accounting
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
Telephone: (612) 372-5258
Telecopy: (612) 372-5368
(3) Securities to be delivered to:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Peggy Herbst
(4) Address for all other communications and notices:
ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Tim Warrick
(5) Northern Life Insurance Company
Tax ID No. 41-1295933
Name and Address of Purchaser Series Principal Amount
WASHINGTON SQUARE ADVISERS B $3,000,000
PRIVATE PLACEMENT TRUST FUND
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Account #10604960
Bank ABA #091000022
First National Bank N.A.
601 2nd Avenue South
F/F/C First Trust Company
A/C #180121167365
ITG A/C #47300020
Attn: Washington Square Advisers Private
Placement Trust Fund
with sufficient information to identify the source and application of
such funds, including CUSIP, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Washington Square Advisers, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Frank Pintens
Telephone: (612) 342-7128
Telecopy: (612) 342-3656
(3) Securities to be delivered to:
Washington Square Advisers, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Frank Pintens
(4) Address for all other communications and notices:
Washington Square Advisers, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, MN 55401-2121
Attn: Frank Pintens
(5) Washington Square
Advisers Private
Placement Trust
Fund Tax ID No.
41-6424976
Name and Address of Purchaser Series Principal Amount
KEYPORT LIFE INSURANCE COMPANY A $15,000,000
(Note registered in the name of Hare & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Bank of Boston/Cust
ABA #011000390
For further credit to
A/C #50757004 - Keyport
Attn: Amy Hansbury
Mail Stop 45-02-03
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment, written
confirmation of such wire transfer and all other communications and
notices:
Keyport Life Insurance Company
c/o Stein Roe & Farnham Incorporated
1 South Wacker Drive
Chicago, IL 60606
Attn: Private Placements
(3) Securities to be delivered to:
Bank of Boston
Institutional Custody Services
150 Royall Street
Canton, MA 02021
Attn: Amy Hansbury
Mail Stop 45-02-03
Reference #50757004
(4) Keyport Life Insurance Company
Tax ID No. 05-0302931
Name and Address of Purchaser Series Principal Amount
CONNECTICUT GENERAL LIFE A $2,000,000
INSURANCE COMPANY A $2,000,000
A $2,000,000
(Note registered in the name of CIG & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase NYC/CTR/
BNF = CIGNA Private Placements
A/C #9009001802
ABA #021000021
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
Operations Group
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(3) Address for all other communications and notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
James R. Kuzemchak
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(5) Connecticut General Life Insurance Company
Tax ID No. 13-3574027
Name and Address of Purchaser Series Principal Amount
CONNECTICUT GENERAL LIFE A $2,000,000
INSURANCE COMPANY, on
behalf of one of more
separate accounts
(Note registered in the name of CIG & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase NYC/CTR/
BNF = CIGNA Private Placements
A/C #9009001802
ABA #021000021
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
Operations Group
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(3) Address for all other communications and notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
James R. Kuzemchak
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(5) Connecticut General Life Insurance Company
Tax ID No. 13-3574027
Name and Address of Purchaser Series Principal Amount
LIFE INSURANCE COMPANY A $2,000,000
OF NORTH AMERICA
(Note registered in the name of CIG & Co.)
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Chase NYC/CTR/
BNF = CIGNA Private Placements
A/C #9009001802
ABA #021000021
with sufficient information to identify the source and application of
such funds, including PPN, payment date, and principal, premium or
interest on the security.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
Operations Group
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(3) Address for all other communications and notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
James R. Kuzemchak
900 Cottage Grove Road
Hartford, CT 06152-2307
Telecopy: (860) 726-7203
(5) Life Insurance Company of North America
Tax ID No. 13-3574027
Name and Address of Purchaser Series Principal Amount
PRINCIPAL MUTUAL LIFE A $5,100,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, IA 50309
ABA #073000228
Account #014752
Ref: OBI PFGSE(S)B61062
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
Attn: Investment Department,
Accounting & Treasury
Ref: Bond No. 1-B-61062
(3) Address for all other communications and notices:
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
Attn: Investment Department,
Securities Division
Ref: Bond No. 1-B-61062
(5) Principal Mutual Life Insurance Company
Tax ID No. 42-0127290
Name and Address of Purchaser Series Principal Amount
PRINCIPAL MUTUAL LIFE A $4,900,000
INSURANCE COMPANY
(1) All payments on account of the Notes shall be made by wire transfer
of immediately available funds to:
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, IA 50309
ABA #073000228
Account #032395
Ref: OBI PFGSE(S)B61062
with sufficient information to identify the source and application of
such funds.
(2) Address for all notices in respect of payment and written
confirmation of such wire transfer:
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
Attn: Investment Department,
Accounting & Treasury
Ref: Bond No. 16-B-61062
(3) Address for all other communications and notices:
Principal Mutual Life Insurance Company
711 High Street
Des Moines, IA 50392-0960
Attn: Investment Department,
Securities Division
Ref: Bond No. 16-B-61062
(5) Principal Mutual Life Insurance Company
Tax ID No. 42-0127290
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any
Person, any other Person that at such time directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common Control
with, such first Person. As used in this definition, "Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an "Affiliate" is a reference to an
Affiliate of the Guarantor.
"Attributable Debt" means, as to any particular lease relating
to a Sale and Leaseback Transaction, the present value of all Lease Rentals
required to be paid by the Guarantor or any Restricted Subsidiary under such
lease during the remaining term thereof (determined in accordance with generally
accepted financial practice using a discount factor equal to the interest rate
implicit in such lease).
"Business Day" means (a) for the purposes of Section 8.6 only,
any day other than a Saturday, a Sunday or a day on which commercial banks in
New York City are required or authorized to be closed, and (b) for the purposes
of any other provision of this Agreement, any day other than a Saturday, a
Sunday or a day on which commercial banks in New York City or Providence, Rhode
Island are required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition of an
asset and the incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person
and a Capital Lease, the amount of the obligation of such Person as the lessee
under such Capital Lease that would, in accordance with GAAP, appear as a
liability on a balance sheet of such Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time.
"Company" means GTECH Corporation, a Delaware corporation, or
any successor thereto that shall have become such in the manner prescribed in
Section 10.2.
"Competitor" means each Person specified on Exhibit 3 and each
other Person who directly or indirectly competes with either Obligor or any
Subsidiary in the business of providing and/or servicing lottery systems and/or
electronic benefits transfer systems (provided that "Competitor" shall not
include any bank, trust company, savings and loan association or other financial
institution, any pension plan, any investment company, any insurance company,
any
broker or dealer or any other similar financial institution or entity not
specified on Exhibit 3, regardless of legal form).
"Consolidated Assets" means, as of any date of determination,
the total assets of the Guarantor and its Restricted Subsidiaries which would be
shown as assets on a consolidated balance sheet of the Guarantor and its
Restricted Subsidiaries as of such time prepared in accordance with GAAP, after
eliminating all amounts properly attributable to minority interests, if any, in
the stock and surplus of Restricted Subsidiaries.
"Consolidated EBDAIT" means, as of any date of determination,
the sum (without duplication) of (i) Consolidated Net Income (excluding any
extraordinary gains and losses) for the four fiscal quarters ending on, or most
recently prior to, such date plus (to the extent deducted in the computation of
such Consolidated Net Income) (ii) Consolidated Interest Expense for such four
fiscal quarters plus (iii) taxes on income of the Guarantor and its Restricted
Subsidiaries for such four fiscal quarters plus (iv) amortization, depreciation
and all other non-cash expense items of the Guarantor and its Restricted
Subsidiaries for such four fiscal quarters, all determined on a consolidated
basis in accordance with GAAP and on a pro forma basis in accordance with
generally accepted financial practice giving effect to any acquisition or
disposition made during the relevant computation period as if such acquisition
or disposition were made on the first day of such period.
"Consolidated Indebtedness" means, as of any date of
determination (and without duplication), all Indebtedness of the Guarantor and
its Restricted Subsidiaries outstanding on such date, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with reference to any
period, the interest expense of the Guarantor and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with reference to any period,
the net income (or loss) of the Guarantor and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Shareholders' Equity" means, as of any date of
determination, the total shareholders' equity of the Guarantor and its
Restricted Subsidiaries on such date, determined on a consolidated basis in
accordance with GAAP.
"Confidential Information" is defined in Section 21.
"Credit Facility" means the Credit Agreement dated as of
September 15, 1994 by and among the Company, the Lenders and Co-Agents party
thereto, and Nationsbank of North Carolina, National Association, as Agent, as
amended and in effect from time to time, or any credit facility or facilities
extending, renewing or refinancing such agreement.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of notice or
both, become an Event of Default.
"Default Rate" means with respect to any Note that rate of
interest that is the greater of (i) 2% per annum above the rate of interest
stated in clause (a) of the first paragraph of such Note or (ii) 2% over the
rate of interest publicly announced by Morgan Guaranty Trust Company of New York
in New York, New York as its "base" or "prime" rate.
"Disposition" is defined in Section 10.8.
"Environmental Laws" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with either Obligor
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Funded Indebtedness" means, with respect to any Person, all
Indebtedness of such Person which by its terms or by the terms of any instrument
or agreement relating thereto matures, or which is otherwise payable or unpaid,
one year or more from, or is directly or indirectly renewable or extendible at
the option of the obligor in respect thereof to a date one year or more
(including, without limitation, under a revolving or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more) from, the date of creation thereof.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State
or other political subdivision thereof, or
(ii) any other jurisdiction in which either Obligor
or any Subsidiary conducts all or any part of its business, or
which asserts jurisdiction over any properties of either
Obligor or any Subsidiary, or (b) any entity exercising
executive, legislative,
judicial, regulatory or administrative functions of, or pertaining
to, any such government.
"Guarantee" is defined in Section 1.
"Guarantor" means GTECH Holdings Corporation, a Delaware
corporation, or any successor thereto that shall have become such in the manner
prescribed in Section 10.2.
"Guaranty" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness
or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"holder" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the Company pursuant
to Section 14.1.
"Indebtedness" with respect to any Person means, at any
time, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all Capital Lease Obligations of such Person;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (d) hereof.
"Institutional Investor" means (a) any original purchaser of a
Note, (b) any holder of a Note holding more than 5% of the aggregate principal
amount of the Notes then outstanding, and (c) any bank, trust company, savings
and loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
"Lease Rentals" means, for any period, the sum of the rental
and other obligations required to be paid by the lessee under any lease,
excluding any amounts required to be paid by the lessee (whether or not
designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes and similar charges.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets or properties of the Guarantor
and its Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets or properties
of the Guarantor and its Restricted Subsidiaries taken as a whole, or (b) the
ability of the Company or the Guarantor to perform its obligations under this
Agreement or the Notes (in the case of the Company) or the Guarantees (in the
case of the Guarantor), or (c) the validity or enforceability of this Agreement,
the Notes, the Guarantees or any Subsidiary Guarantee.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
"Obligors" is defined in the first paragraph of this
Agreement.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company or the Guarantor, as
applicable, whose responsibilities extend to the subject matter of such
certificate.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"Pension Plan" means an "employee pension benefit plan" within
the meaning of section 3(2) of ERISA.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has been established
or maintained, or to which contributions are or, within the preceding five
years, have been made or required to be made, by either Obligor or any ERISA
Affiliate or with respect to which either Obligor or any ERISA Affiliate may
have any liability.
"Priority Debt" means the sum (without duplication) of (i) the
aggregate unpaid principal amount of Indebtedness of the Guarantor and any
Restricted Subsidiary secured by Liens (other than Liens permitted by Section
10.3(a) through (j)) plus (ii) all outstanding Attributable Debt of the
Guarantor and any Restricted Subsidiary (other than Attributable Debt with
respect to any Sale and Leaseback Transaction permitted by Section 10.4(a) or
(b)) plus (iii) the aggregate unpaid principal amount of all Indebtedness of all
Restricted Subsidiaries (other than Indebtedness of the Company or Indebtedness
permitted by Section 10.5(a) through (d)).
"Property" or "Properties" means, unless otherwise
specifically limited, real or personal property of any kind, tangible or
intangible, choate or inchoate.
"PTE" means a Prohibited Transaction Exemption issued by the
Department of Labor.
"Purchaser" is defined in the first paragraph of this
Agreement.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Required Holders" means, at any time, the holders of at least
51% in principal amount of the Notes at the time outstanding (exclusive of Notes
then owned by either Obligor or any of their respective Affiliates).
"Responsible Officer" means any Senior Financial Officer and
any other officer of the Company or the Guarantor with responsibility for the
administration of the relevant portion of this Agreement.
"Restricted Subsidiary" means (i) as of the date of the
Closing, the Company, each Subsidiary Guarantor and each other Subsidiary of the
Guarantor and (ii) thereafter (x) the Company and each other Subsidiary of the
Guarantor unless the Guarantor shall have designated any such other Subsidiary
(other than any Subsidiary Guarantor) as an "Unrestricted Subsidiary" by notice
to each holder of Notes and (y) each Unrestricted Subsidiary that the Guarantor
shall have designated as a "Restricted Subsidiary" by notice to each holder of
Notes; provided, that no designation under the foregoing clause (x) or (y) shall
be effective unless, immediately after giving effect to any such designation, no
Default or Event of Default shall have occurred and be continuing and the
Guarantor would be permitted by the provisions of Section 10.6 to incur at least
$1.00 of additional Indebtedness owing to a Person other than a Restricted
Subsidiary. No Subsidiary that is an Unrestricted Subsidiary and has previously
been a Restricted Subsidiary may again be designated as a Restricted Subsidiary,
and no Subsidiary that is a Restricted Subsidiary and has previously been an
Unrestricted Subsidiary may again be designated as an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means a transaction or series
of transactions pursuant to which the Guarantor or any Restricted Subsidiary
shall sell or transfer to any Person any property, whether now owned or
hereafter acquired, and, as part of the same transaction or series of
transactions, the Guarantor or any Restricted Subsidiary shall lease as lessee,
or similarly acquire the right to possession or use of, such property for a
period in excess of three years.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Financial Officer" means any of the Chief Financial
Officer, the Treasurer, the Comptroller and any Assistant Treasurer of the
Company or of the Guarantor.
"Series A Notes" is defined in Section 1.
"Series B Notes" is defined in Section 1.
"Significant Subsidiary" means at any time any Restricted
Subsidiary that would at such time constitute a "significant subsidiary" (as
such term is defined in Regulation S-X of the Securities and Exchange Commission
as in effect on the date of the Closing) of the Guarantor.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the
absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership or joint
venture if more than a 50% interest in the profits or capital thereof is owned
by such Person or one or more of its Subsidiaries or such Person and one or more
of its Subsidiaries (unless such partnership or joint venture can and does
ordinarily take major business actions without the prior approval of such Person
or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Guarantor.
"Subsidiary Guarantee" means a guarantee of a Subsidiary
Guarantor of the obligations of the Company under this Agreement and the Notes,
substantially in the form of Exhibit 2.
"Subsidiary Guarantor" means, as of the date of the Closing,
each Subsidiary identified as such on Schedule 5.4 and, thereafter, each other
Subsidiary that enters into a Subsidiary Guarantee as required by Section
9.8(a), provided that such Subsidiary has not been released from its obligations
as provided in Section 9.8(b).
"Unrestricted Subsidiary" means any Subsidiary of the
Guarantor (other than the Company) that is designated as such pursuant to the
provisions of the definition of the term "Restricted Subsidiary".
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted Subsidiary one hundred percent (100%) of all of the equity interests
(except directors' qualifying shares) and voting interests of which are owned by
any one or more of the Guarantor and the Guarantor's other Wholly-Owned
Restricted Subsidiaries at such time.
SCHEDULE 4.9
Changes in Corporate Structure
None.
SCHEDULE 5.3
GTECH Holdings Corporation Form 10-K for the fiscal year ending February 22,
1997, filed with the Securities and Exchange Commission.
Subsidiaries
Schedule 5.4
GTECH Holdings Corporation owns one hundred percent of the stock of GTECH
Corporation. The voting stock of all the entities set forth below is owned one
hundred percent by GTECH Corporation, either directly by GTECH Corporation or
through or in conjunction with other subsidiaries of GTECH Corporation. The
jurisdiction of each entity is set forth after its name. Transactive Corporation
is the only Subsidiary Guarantor.
Dreamport, Inc. (Delaware)
Environmental Paper Products, Inc. (RI)
GameScape, Inc. (RI)
Gaming Systems Corporation (Delaware)
Gana de Mexico S.A. de C.V.
Grand Cards Systems (Shanghai) Ltd. (China)
GRYTEK Co. Ltd. (Poland)
GTECH Argentina S.A. (Argentina)
GTECH Asia Corporation (Delaware)
GTECH Australasia Corporation (Delaware)
GTECH Canada Computer Systems Corporation (Canada)
GTECH Computer Systems Sdn Bhd (Malaysia)
GTECH Corporation (Delaware)
GTECH Corporation (Utah)
GTECH Corporation Chile, S.A. (Chile)
GTECH Czechoslovakia Corporation (Delaware)
GTECH De Mexico S.A. de C.V. (Mexico)
GTECH Eesti A.S. (Estonia)
GTECH Espana Corporation (Delaware)
GTECH Europe S.A. (Belgium)
GTECH Export Corporation (United States Virgin Islands)
GTECH Far East Pte Ltd (Singapore)
GTECH Foreign Holdings Corporation (Delaware)
GTECH Gaming Subsidiary 2 Corporation (Delaware)
GTECH Ireland Corporation (Delaware)
GTECH Italy Corporation (Delaware)
GTECH Latin America Corporation (Delaware)
GTECH LIT Corporation (Lithuania)
GTECH Lithuania Corporation (Delaware)
GTECH Management P.I. Corporation (Delaware)
GTECH Nevada Corporation (Delaware)
GTECH Northern Europe Corporation (Delaware)
GTECH Offshore Services Limited (Jersey, Channel Islands)
GTECH South Africa Corporation (Delaware)
GTECH Suffolk Corporation (Delaware)
GTECH Sweden Corporation (Delaware)
GTECH Taiwan Corporation (Delaware)
GTECH Texas Corporation (Delaware)
GTECH U.K. Limited (U.K.)
GTECH U.K. Corporation (Delaware)
GTECH Venezuela Corporation (Delaware)
GTECH Worldserv, Inc. (Delaware)
GTECH Worldserv International, Inc. (Delaware)
GTECH Worldwide Services Corporation (Delaware)
Innovative Environmental Technologies, Inc. (Delaware)
LAC Corporation (Rhode Island)
Loteria Asociada S.A. (Argentina)
Oy GTECH Finland Ab. (Finland)
Technology Risk Management Services, Inc.
Technology Travel Corporation (Delaware)
Transaction Strategies Inc. (Delaware)
Transactive Corporation (Delaware)
(formerly GTECH Administrative Services Corp.)
Via Video Corporation (Delaware)
Watson Land Company (Rhode Island)
Schedule 5.5
1. consolidated balance sheets of GTECH Holdings Corporation and subsidiaries as
of February 24, 1996 and February 25, 1995 and the related consolidated
statements of income, shareholders'equity, and cash flows for each of the three
years in the period ended February 24, 1996.
2. consolidated balance sheets of GTECH Holdings Corporation and subsidiaries as
of February 22, 1997 and February 24, 1996 and the related consolidated
statements of income, shareholders'equity, and cash flows for each of the three
years in the period ended February 22, 1997.
Schedule 5.8
Part I
1. Subsequent to the trial of J. David Smith, the Company's former national
sales manager, in New Jersey, the New Jersey U.S. Attorney announced in a press
release that a grand jury investigation in that jurisdiction is continuing but
did not specify the scope of such investigation. Thereafter, the New Jersey U.S.
Attorney's Office issued subpoenas to the Company. The Texas U.S. Attorney's
Office also has issued subpoenas to the Company. The Company is cooperating in
these investigations. The Company does not believe it has engaged in any
wrongdoing in connection with these matters. However, since the current
investigations are still underway and are conducted largely in secret, the
Company lacks sufficient information to determine with certainty their ultimate
scope and whether the government authorities will assert claims resulting from
these or other investigations that could implicate or reflect adversely upon the
Company. Because the Company's reputation for integrity is an important factor
in its business dealings with lottery and other government agencies, if
government authorities were to make an allegation of, or if there were to be a
finding of, improper conduct on the part of or attributable to the Company, such
an allegation or finding could have a Material Adverse Effect.
2. On September 20, 1996, Jack M. and Linda Janis filed a class action in the
Los Angeles Superior Court (Case No. BC157693) against the California State
Lottery Commission, GTECH Holdings Corporation and Southland Corporation. The
suit involves the keno game that was operated by the California State Lottery
until the California Supreme Court ruled in June 1996 that it was not authorized
by the state's Lottery Law. The plaintiffs seek restitution of funds received by
the defendants in connection with that keno game on the theories of unjust
enrichment and unlawful, unfair or deceptive business practices. In February
1997, the Court granted the Company's motion for summary judgment on all claims,
holding that the plaintiffs failed to state a triable issue of material fact on
the causes of action asserted. On March 4, 1997, the plaintiffs filed an amended
action with the Court. The Company has publicly stated that it believes the
claim has no merit. Even considering that plaintiffs' chances of success are
near zero, however, the size of the potential damages require listing this
matter as having a possible Material Adverse Effect.
Part II
The Texas Lottery Commission ("Lottery") has notified the Company of its
intention to assess liquidated damages in connection with a gift made by one of
its lobbyists to the Governor of Texas, and has requested information on any
other occasion when the Company or its lobbyists may have provided meals or
entertainment to state officials without reimbursement. While it has not done
so, the Lottery may take the position that such actions constitute a default
under the Company's contract with the Lottery. In addition, the Lottery has
instructed its staff to prepare and issue, by June 30, 1997, requests for
proposal for the same goods and services currently provided by the Company. As a
result of this process, the Lottery may in the future attempt to terminate the
contract.
Part A: Schedule 5.15
GTECH Corporation
Debt Summary
2/22/97
Bank S/T Outstanding Description Final Maturity
Nations Facility 0 Term Loan 09/99
Scotia Bank de Puerto Rico 2,136,000 Term Loan 09/98
Woodchester Credit Lyonnais 1,939,168 Term Loan 12/99
Citizens Trust 0 Demand Note Demand
First Union 0 Demand Note Demand
NationsBank 829,082 Capital Lease 03/98
473,922 Capital Lease 07/98
670,776 Capital Lease 08/98
Bank L/T Outstanding Description Final Maturity
Nations Facility 367,000,000 Term Loan 09/99
Scotia Bank de Puerto Rico 1,592,000 Term Loan 09/98
Woodchester Credit Lyonnais 3,878,342 Term Loan 12/99
Citizens Trust 1,000,000 Demand Note Demand
First Union 8,400,000 Demand Note Demand
NationsBank 71,451 Capital Lease 03/98
206,036 Capital Lease 07/98
350,958 Capital Lease 08/98
Total: 388,547,735
Part B: To the extent that any of the above-referenced Capital Leases are
determined to be loans coupled with a security interest, they would be Liens.
[FORM OF SERIES A NOTE]
GTECH CORPORATION
7.75% SERIES A GUARANTEED SENIOR NOTE DUE 2004
No. [_____] [Date]
$[_______] PPN[______________]
FOR VALUE RECEIVED, the undersigned, GTECH CORPORATION (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [ ], or registered assigns, the
principal sum of [ ] DOLLARS (or so much thereof as shall not have been prepaid)
on May 15, 2004, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.75% per
annum from the date hereof, payable semiannually, on the 15th day of May and
November in each year, commencing with November 15, 1997, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by
law, on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note and Guarantee Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum from time to time equal to the greater of (i) 9.75%
or (ii) 2% over the rate of interest publicly announced by Morgan Guaranty Trust
Company of New York from time to time in New York, New York as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money of the United
States of America at the principal office of The Bank of New York in New York,
New York or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note and Guarantee
Agreement referred to below.
This Note is one of a series of Guaranteed Senior Notes
(herein called the "Notes") issued pursuant to the Note and Guarantee Agreement
dated as of May 15, 1997 (as from time to time amended, the "Note and Guarantee
Agreement"), between the Company, GTECH Holdings Corporation (the "Guarantor")
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
to have agreed to the confidentiality provisions set forth in Section 21 of the
Note and Guarantee Agreement and (ii) to have made the representation set forth
in Section 6.2 of the Note and Guarantee Agreement.
Payment of the principal of, and Make-Whole Amount, if any,
and interest on this Note has been guaranteed by the Guarantor in accordance
with the terms of the Note and Guarantee Agreement.
This Note is a registered Note and, as provided in the Note
and Guarantee Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of transfer duly
executed, by the registered holder hereof or such holder's attorney duly
authorized in writing, a new Note of the same series for a like principal amount
will be issued to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note and
Guarantee Agreement, but not otherwise.
If an Event of Default, as defined in the Note and Guarantee
Agreement, occurs and is continuing, the principal of this Note may be declared
or otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note and
Guarantee Agreement.
This Note shall be construed and enforced in accordance with
the laws of the State of New York.
GTECH CORPORATION
By_________________________
Title:
[FORM OF SERIES B NOTE]
GTECH CORPORATION
7.87% SERIES B GUARANTEED SENIOR NOTE DUE 2007
No. [_____] [Date]
$[_______] PPN[______________]
FOR VALUE RECEIVED, the undersigned, GTECH CORPORATION (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, hereby promises to pay to [ ], or registered assigns, the
principal sum of [ ] DOLLARS (or so much thereof as shall not have been prepaid)
on May 15, 2007, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.87% per
annum from the date hereof, payable semiannually, on the 15th day of May and
November in each year, commencing with November 15, 1997, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by
law, on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note and Guarantee Agreement referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum from time to time equal to the greater of (i) 9.87%
or (ii) 2% over the rate of interest publicly announced by Morgan Guaranty Trust
Company of New York from time to time in New York, New York as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money of the United
States of America at the principal office of The Bank of New York in New York,
New York or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note and Guarantee
Agreement referred to below.
This Note is one of a series of Guaranteed Senior Notes
(herein called the "Notes") issued pursuant to the Note and Guarantee Agreement
dated as of May 15, 1997 (as from time to time amended, the "Note and Guarantee
Agreement"), between the Company, GTECH Holdings Corporation (the "Guarantor")
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
to have agreed to the confidentiality provisions set forth in Section 21 of the
Note and Guarantee Agreement and (ii) to have made the representation set forth
in Section 6.2 of the Note and Guarantee Agreement.
Payment of the principal of, and Make-Whole Amount, if any,
and interest on this Note has been guaranteed by the Guarantor in accordance
with the terms of the Note and Guarantee Agreement.
This Note is a registered Note and, as provided in the Note
and Guarantee Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of transfer duly
executed, by the registered holder hereof or such holder's attorney duly
authorized in writing, a new Note of the same series for a like principal amount
will be issued to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note and
Guarantee Agreement, but not otherwise.
If an Event of Default, as defined in the Note and Guarantee
Agreement, occurs and is continuing, the principal of this Note may be declared
or otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note and
Guarantee Agreement.
This Note shall be construed and enforced in accordance with
the laws of the State of New York.
GTECH CORPORATION
By_________________________
Title:
EXHIBIT 1-C
[FORM OF GUARANTEE]
For value received, the undersigned hereby unconditionally and
irrevocably guarantees to the holder of the foregoing Note the due and punctual
payment of the principal of, Make-Whole Amount, if any, and interest on said
Note, as more fully provided in the Note and Guarantee Agreement referred to in
said Note.
GTECH HOLDINGS CORPORATION
By___________________________
Title:
Exhibit 3
Suppliers of On-Line Lottery Products and Services
1. Video Lottery Technologies, Inc. ("VLT") - shares traded on NASDAQ
2. Automated Wagering International, Inc. ("AWI"), a wholly-owned sub of VLT
3. Autotote Corporation
4. Telecontrol (an Austrian company and sub of Autotote)
5. Essnet/Alcatel (a Swedish company)
6. International Lottery and Totalizator Systems, Inc. ("ITS")
7. Berjaya Lottery Management (HK) Ltd. (A parent company of this entity
(also with Berjaya in the name) owns at least 40% of ITS. The Berjaya
companies compete through ITS and separately, through other Berjaya affiliates)
8. Scientific Games, Inc.
9. International des Jeux ("Lotto France")
10. International Game Technology, Inc.
11. Siemens-Nixdorf Information Systems AG
12. CGK Computer Gesellschaft Konstanz mbH (a wholly-owned sub of Siemens)
Suppliers of Systems and Services for the Electronic Delivery of Government
Benefits
1. Deluxe Data Systems, Inc., a sub of Deluxe Corporation
2. Citibank
EXHIBIT 4.4(a)
Matters To Be Covered In Opinion of Counsel To the Obligors
1. Each of the Obligors and their respective Subsidiaries
being duly incorporated, validly existing and in good standing and having
requisite corporate power and authority to issue and sell the Notes and to
execute and deliver the documents.
2. The Guarantor and each Restricted Subsidiary being
duly qualified and in good standing as a foreign corporation in appropriate
jurisdictions.
3. Due authorization and execution of the documents
and such documents being legal, valid, binding and enforceable.
4. No conflicts with charter documents, laws or other
agreements.
5. All consents required to issue and sell the Notes
and the Guarantees and to execute and deliver the documents having been
obtained.
6. No litigation questioning validity of documents.
7. The Notes not requiring registration under the Securities
Act of 1933, as amended; no need to qualify an indenture under the Trust
Indenture Act of 1939, as amended.
8. No violation of Regulations G, T or X of the
Federal Reserve Board.
9. Neither Obligor is an "investment company", or a
company "controlled" by an "investment company", under the Investment Company
Act of 1940, as amended.
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
FOR THE PURCHASERS
[NAME OF SUBSIDIARY GUARANTOR]
GUARANTEE
Dated ________________
GUARANTEE
GUARANTEE dated as of [_____________] by [NAME OF SUBSIDIARY
GUARANTOR] (the "Subsidiary Guarantor"), a corporation organized under the laws
of [___________] [(the "Guarantor Jurisdiction")]1, in favor of each person who
is from time to time a holder (each, a "Holder" and, collectively, the
"Holders") of one or more of (i) the 7.75% Series A Guaranteed Senior Notes due
2004 issued in an original aggregate principal amount of $150,000,000 and (ii)
the 7.87% Series B Guaranteed Senior Notes due 2007 issued in an original
aggregate principal amount of $150,000,000 (collectively, together with all
notes delivered in substitution or exchange for any of said notes pursuant to
the Note Agreement referred to below, the "Notes") issued by GTECH Corporation,
a Delaware corporation (the "Company"), pursuant to the Note and Guarantee
Agreement dated as of May 15, 1997 (as amended, modified or supplemented from
time to time, the "Note Agreement") among the Company, GTECH Holdings
Corporation and the Purchasers whose names appear in Schedule A to the Note
Agreement. All capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed thereto in the Note Agreement.
Section 1. GUARANTEE, ETC.
Section 1.1. Guarantee. The Company will use the proceeds from
the issuance of the Notes to repay certain Indebtedness, and for general
corporate purposes, of the group of companies comprised by Company and its
consolidated Subsidiaries, and the Subsidiary Guarantor is part of such
corporate group. For such valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Subsidiary Guarantor does hereby absolutely
and unconditionally, for the benefit of each of the Holders, guarantee the full
and timely payment when due, whether by acceleration or otherwise (including
amounts which, but for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code or any successor statute, would become
due), of all indebtedness, obligations and liabilities of the Company, now or
hereafter existing, under or in connection with the Note Agreement or any Note,
and whether of principal, interest (including interest which, but for the filing
of a petition in bankruptcy with respect to the Company, would accrue),
Make-Whole Amounts, fees, expenses or otherwise, in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated,
now or hereafter existing, amended, extended, renewed, replaced, refinanced or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred (all indebtedness, obligations and
liabilities of the Company described in this Section 1.1 are collectively
referred to as the "Guarantied Obligations").
Section 1.2. Guarantee Of Payment. This is a guaranty of
payment and not merely of collection. In the event of any default in payment or
otherwise on any of the Guarantied Obligations, the Subsidiary Guarantor will
pay on demand all or any portion of the Guarantied Obligations due or thereafter
becoming due, whether by acceleration or otherwise, without offset of any kind
whatsoever, without any Holder first being required to make demand upon the
Company or pursue any of its rights against the Company, or against any other
Person, including other guarantors, and without being required to liquidate or
to realize on any collateral security. In any right of action accruing to any
Holder, such Holder may elect to proceed against (a) the Subsidiary Guarantor
together with the Company or any other guarantor of any Guarantied Obligation;
(b) the Subsidiary Guarantor and the Company or any such other guarantor
individually in separate actions; or (c) the Subsidiary Guarantor only without
having first commenced any action against the Company or any such other
guarantor.
Section 1.3. Right to Deal with Guarantied Obligations. Any
Holder, without notice to or consent of the Subsidiary Guarantor, may do any one
or more of the following, all without impairing the liability of the Subsidiary
Guarantor hereunder: deal with any Guarantied Obligation and any collateral
security therefor in such manner as it may deem advisable and renew, amend or
extend the Guarantied Obligations, the Note Agreement, any Note or any part
thereof; accept partial payment, or settle, release, compound, or compromise the
same; demand additional collateral security therefor, and substitute or release
the same; and compromise or settle with or release and discharge from liability
any other guarantor of any Guarantied Obligation, or any other Person liable to
such Holder for all or any portion of the obligations of any obligor in respect
of any Guarantied Obligation.
Section 1.4. Waiver of Subrogation. The Subsidiary Guarantor
hereby unconditionally waives with respect to this Guarantee any right of
subrogation, indemnity, reimbursement or contribution from the Company and any
other guarantor.
Section 1.5. Other Waivers. The Subsidiary Guarantor hereby
unconditionally waives with respect to this Guarantee: (a) notice of acceptance
of this Guarantee by any Holder and any notice of the incurring by the Company
of any Guarantied Obligation; (b) presentment for payment, protest, notice of
protest and notice of dishonor to any party including the Company or the
Subsidiary Guarantor; (c) all other notices which the Company or the Subsidiary
Guarantor may be entitled to but which may legally be waived; (d) demand for
payment as a condition of liability; (e) any disability of the Company or any
other obligor or obligors or defense available to the Company, the Subsidiary
Guarantor or any other obligor or obligors in respect of any Guarantied
Obligation, including absence or cessation of the Company or any such other
obligor's liability for any reason whatsoever; (f) any defense or circumstances
which might otherwise constitute a legal or equitable discharge of a guarantor
or surety; and (g) all rights under any otherwise applicable law dealing with or
affecting the rights of creditors of the Subsidiary Guarantor and inconsistent
with the express provisions hereof.
Section 1.6. Subordination. Until the Guarantied Obligations
are paid in full the Subsidiary Guarantor hereby unconditionally subordinates
all present and future debts, liabilities or obligations of the Company to the
Subsidiary Guarantor to the Guarantied Obligations, and all amounts received by
the Subsidiary Guarantor with respect to such debts, liabilities or obligations
shall, upon the occurrence and during the continuance of an Event of Default, be
held in trust for the benefit of, and shall be immediately paid over to the
Holders and to any other Persons who shall have the benefit of a guarantee by
the Subsidiary Guarantor of Indebtedness of the Company which is owing to such
Persons and which ranks at least pari passu to the Indebtedness owed to the
Holders, ratably according to the unpaid principal amount of such Indebtedness
of the Company owed to the Holders and such other Persons. The Subsidiary
Guarantor, at the request of any Holder, shall execute such further documents in
favor of the Holders to further evidence and support the purpose of this Section
1.6.
Section 1.7. No Right of Set Off. No act of commission or
omission of any kind or at any time upon the part of the Company or any Holder
or their respective successors or assigns in respect of any matter whatsoever
shall in any way affect or impair the rights of any Holder to enforce any right,
power or benefit under this Guarantee, and no set-off, recoupment, claim,
reduction or diminution of any obligation or any defense (legal or equitable),
counterclaim, cross claim or other claim of any kind or nature which the
Subsidiary Guarantor has or may have against the Company or any Holder or any
such successor or assign shall be available to or asserted by the Subsidiary
Guarantor in any suit or action brought by any Holder, or any such successor or
assign, to enforce any right, power or benefit under this Guarantee or as an
offset to payment hereunder.
Section 1.8. Special Representations and Warranties relating
to the Guarantee. The Subsidiary Guarantor represents and warrants to the
Holders that: (a) no other agreement, representation or special condition exists
between the Subsidiary Guarantor and any Holder regarding the liability of the
Subsidiary Guarantor under this Guarantee; nor does any understanding exist
between the Subsidiary Guarantor and any Holder that the obligations of the
Subsidiary Guarantor under this Guarantee are or will be other than as set out
herein; and (b) as of the date hereof, the Subsidiary Guarantor has no defense
whatsoever to any action or proceeding that may be brought to enforce this
Guarantee.
Section 1.9. No Waiver by Holders. No failure or delay on the
part of any Holder in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. Failure by any
Holder to insist upon strict performance hereof shall not constitute a
relinquishment of its right to demand strict performance at another time.
Receipt by any Holder of any payment by any Person on any Guarantied Obligation,
with knowledge of a default in respect of any Guarantied Obligation or of a
breach of this Guarantee, or both, shall not be construed as a waiver of the
default or breach.
Section 1.10. CONTINUING GUARANTEE; TERMINATION. SUBJECT TO
SECTION 3.7, THIS GUARANTEE IS A CONTINUING GUARANTEE AND SHALL CONTINUE IN FULL
FORCE AND EFFECT UNTIL SUCH TIME AS ALL GUARANTIED OBLIGATIONS SHALL HAVE BEEN
INDEFEASIBLY PAID IN FULL.
Section 1.11. Remedies Cumulative, etc. All remedies under
this Guarantee are cumulative and are not exclusive of any other rights and
remedies of the Holders provided by law or under the Note Agreement, any Note,
or any other applicable agreement or instrument. The extensions of credit to the
Company pursuant to the Note Agreement shall be presumed conclusively to have
been made or extended, respectively, in reliance upon the obligations of the
Subsidiary Guarantor incurred pursuant to this Guarantee.
Section 1.12. Repayment or Recovery. If claim is ever made
upon any Holder for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guarantied Obligations and any of the
Holders repays all or part of said amount by reason of (a) any judgment, decree
or order of any court or administrative body having jurisdiction over such
Holder or any of its property (including as a result of any proceedings in
bankruptcy or reorganization with respect to the Company) or (b) any settlement
or compromise of any such claim effected by such Holder with any such claimant
(including the original obligor), then and in such event the Subsidiary
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon it, notwithstanding any revocation hereof or the
cancellation of any Notes or other instrument evidencing any Guarantied
Obligation or any security therefor, and the Subsidiary Guarantor shall be and
remain liable to the aforesaid Holder for the amount so repaid or recovered to
the same extent as if such amount had never originally been received by such
Holder.
[Section 1.13. Tax Indemnity. (a) In the event of the
imposition by or for the account of any Governmental Authority of or in the
Guarantor Jurisdiction or any political subdivision thereof or therein (an
"Applicable Taxing Authority") or of any other Governmental Authority of any
jurisdiction in which the Subsidiary Guarantor resides for tax purposes or any
jurisdiction from or through which the Subsidiary Guarantor is making any
payment in respect of this Guarantee, other than any Governmental Authority of
or in the United States of America or any political subdivision thereof or
therein, of any tax (whether income, documentary, sales, stamp, registration,
issue, capital, property, excise or otherwise), duty, levy, impost, fee, charge
or withholding (each a "Tax" and collectively "Taxes") upon or with respect to
any payments in respect of this Guarantee, whether by withholding or otherwise,
the Subsidiary Guarantor hereby agrees to pay forthwith from time to time in
connection with each such payment to each Holder such amounts as shall be
required so that every payment received by such Holder in respect of this
Guarantee will not, after such withholding or deduction or other payment for or
on account of such Tax and any interest or penalties relating thereto, be less
than the amount due and payable to such Holder in respect of this Guarantee
before the assessment of such Tax; provided, however, that the Subsidiary
Guarantor shall not be obliged to pay such amounts to any Holder in respect of
Taxes to the extent such Taxes exceed the Taxes that would have been payable:
(i) had such Holder not had any connection with the
Guarantor Jurisdiction or any territory or political
subdivision thereof other than the holding of a Note (or the
receipt of any payments in respect thereof) or activities
incidental thereto; or
(ii) but for the delay or failure by such Holder
(following a written request by the Subsidiary Guarantor) in
the filing with an appropriate Governmental Authority or
otherwise of forms, certificates, documents, applications or
other reasonably required evidence (collectively "Forms"),
that is required to be filed by such Holder to avoid or reduce
such Taxes and that in the case of any of the foregoing would
not result in any confidential or proprietary income tax
return information being revealed, either directly or
indirectly, to any Person and such delay or failure could have
been lawfully avoided by such Holder, provided that such
Holder shall be deemed to have satisfied the requirements of
this clause (ii) upon the good faith completion and submission
of such Forms as may be specified in a written request of the
Subsidiary Guarantor no later than 45 days after receipt by
such Holder of such written request.
(b) Within 60 days after the date of any payment by the
Subsidiary Guarantor of any Tax in respect of any payment under this Guarantee
or this Section 1.13, the Subsidiary Guarantor shall furnish to each Holder such
documentary evidence with respect to such payment as may be reasonably requested
by such Holder.
(c) The obligations of the Subsidiary Guarantor under this
Section 1.13 shall survive the transfer or payment of any Note.]1
Section 2. REPRESENTATIONS. The Subsidiary Guarantor
represents and warrants as follows:
Section 2.1. Organization; Power and Authority. The Subsidiary
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
Subsidiary Guarantor has the corporate power and authority to execute and
deliver this Guarantee and to perform the provisions hereof.
Section 2.2. Authorization, Etc. This Guarantee has been duly
authorized by all necessary corporate action on the part of the Subsidiary
Guarantor, and this Guarantee constitutes a legal, valid and binding obligation
of the Subsidiary Guarantor enforceable against the Subsidiary Guarantor in
accordance with its terms, except as the enforceability thereof may be limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 2.3. Compliance with Laws, Other Instruments of the
Subsidiary Guarantor, Etc. The execution, delivery and performance by the
Subsidiary Guarantor of this Guarantee will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien
in respect of any property of the Subsidiary Guarantor under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other agreement or instrument to which the Subsidiary
Guarantor is bound or by which the Subsidiary Guarantor or any of its properties
may be bound or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the Subsidiary
Guarantor or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Subsidiary Guarantor.
Section 2.4. Governmental Authorizations, Etc. No consent,
approval or authorization of, or registration, filing, or declaration with, any
Governmental Authority is required in connection with the execution, delivery or
performance by the Subsidiary Guarantor of this Guarantee. [It is not necessary
to ensure the legality, validity, enforceability or admissibility into evidence
in the Guarantor Jurisdiction of this Guarantee that this Guarantee or any other
document be filed, recorded or enrolled with any Governmental Authority, or that
any such agreement or document be stamped with any stamp, registration or
similar transaction tax.]1
Section 2.5. Ranking. All obligations and liabilities of the
Subsidiary Guarantor under this Guarantee constitute direct, unconditional and
general obligations of the Subsidiary Guarantor and rank in right of payment
either pari passu or senior to all other Indebtedness of the Subsidiary
Guarantor, except for such Indebtedness which is preferred as a result of being
secured (but then only to the extent of such security).
[Section 2.6. Taxes. No liability for any Tax directly or
indirectly imposed, assessed, levied or collected by or for the account of any
Applicable Taxing Authority will be incurred by the Subsidiary Guarantor or any
Holder as a result of the execution or delivery of this Guarantee and, based on
present law, no deduction or withholding in respect of Taxes imposed by or for
the account of any Applicable Taxing Authority is required to be made from any
payment by the Subsidiary Guarantor under this Guarantee except for any such
withholding or deduction arising out of the conditions described in the proviso
to Section 1.13(a).]1
Section 3. MISCELLANEOUS.
Section 3.1. Successors and Assigns. All agreements contained
in this Guarantee bind the Subsidiary Guarantor and inure to the benefit of the
Holders and in each case to their respective successors and assigns (including,
without limitation, any subsequent Holder of a Note) whether so expressed or
not.
Section 3.2. Severability. Any provision of this Guarantee
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 3.3. Construction. Each agreement contained herein
shall be construed (absent express provision to the contrary) as being
independent of each other agreement contained herein, so that compliance with
any one agreement shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other agreement. Where any provision herein
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Section 3.4. Governing Law. This Guarantee shall be construed
and enforced in accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a
jurisdiction other than such State.
Section 3.5. Expenses; Indemnity. The Subsidiary Guarantor
will upon demand pay to each Holder the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, which such Holder may incur in connection with enforcement
of this Guarantee or the failure by the Subsidiary Guarantor to perform or
observe any of the provisions hereof. To the extent permitted by law, the
Subsidiary Guarantor agrees to indemnify and hold harmless each Holder and each
officer, director, employee, trustee or agent thereof from and against any and
all claims, demands, losses, judgments and liabilities (including liabilities
for penalties) of whatsoever kind or nature, growing out of or resulting from
this Guarantee or the exercise by any Holder of any right or remedy granted to
it hereunder or under the Note Agreement or any Note, other than such items
arising out of gross negligence or willful misconduct on the part of such
Holder. If and to the extent that the obligations of the Subsidiary Guarantor
under this Section 3.5 are unenforceable for any reason, the Subsidiary
Guarantor hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under applicable law.
Section 3.6. Waiver of Immunity. To the extent the Subsidiary
Guarantor may now or hereafter be entitled, in any jurisdiction in which
judicial proceedings may at any time be commenced with respect to this
Guarantee, to claim for itself or its revenues or properties immunity from suit,
set-off, attachment upon or prior to judgment or in aid of execution or
execution of a judgment or from any other legal process, and to the extent that
in any such jurisdiction there may be attributed to the Subsidiary Guarantor
such an immunity (whether or not claimed), the Subsidiary Guarantor hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity
until the obligations of the Subsidiary Guarantor hereunder are discharged.
Section 3.7. Release. Upon notice by the Company to each
Holder in respect of the Subsidiary Guarantor as provided in Section 9.8(b) of
the Note Agreement, the Subsidiary Guarantor shall be released from its
obligations under this Guarantee.
Section 3.8. Notices. All notices and communications provided
for hereunder shall be in writing and sent as provided in Section 19 of the Note
Agreement (i) if to any Holder, to the address specified for such Holder in the
Note Agreement and (ii) if to the Subsidiary Guarantor, to the address for the
Subsidiary Guarantor set forth on the signature pages hereof.
Section 3.9. Amendments. This Guarantee may be amended, and
observance of any term hereof waived (either retroactively or prospectively),
with (and only with) the written consent of the Subsidiary Guarantor and the
Required Holders.
[Section 3.10. JURISDICTION AND PROCESS. THE SUBSIDIARY
GUARANTOR AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS GUARANTEE OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY
LEGAL ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED
AGAINST THE SUBSIDIARY GUARANTOR, FOR BREACH HEREOF OR THEREOF, OR AGAINST ANY
OF ITS PROPERTIES, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BY OR ON
BEHALF OF ANY HOLDER, AS SUCH HOLDER MAY ELECT, AND THE SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF SUCH COURTS FOR PURPOSES OF ANY SUCH LEGAL ACTION OR PROCEEDING. THE
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY APPOINTS AND DESIGNATES [CT CORPORATION
SYSTEM, WHOSE ADDRESS IS 1633 BROADWAY, NEW YORK, NY 10019], OR ANY OTHER PERSON
HAVING AND MAINTAINING A PLACE OF BUSINESS IN THE STATE OF NEW YORK WHOM THE
SUBSIDIARY GUARANTOR MAY FROM TIME TO TIME HEREAFTER DESIGNATE (HAVING GIVEN 30
DAYS' NOTICE THEREOF TO EACH HOLDER), AS THE TRUE AND LAWFUL ATTORNEY AND DULY
AUTHORIZED AGENT FOR ACCEPTANCE OF SERVICE OF LEGAL PROCESS OF THE SUBSIDIARY
GUARANTOR. THE SUBSIDIARY GUARANTOR HEREBY AGREES THAT SERVICE OF PROCESS IN ANY
SUCH PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
IT AT ITS ADDRESS SPECIFIED IN SECTION 3.8 OR AT SUCH OTHER ADDRESS OF WHICH
EACH HOLDER SHALL HAVE BEEN NOTIFIED PURSUANT THERETO. IN ADDITION, THE
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE
OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.]1
[Section 3.11. Obligation to Make Payment in U.S. Dollars. All
payments made by the Subsidiary Guarantor under this Guarantee shall be in
lawful money of the United States of America ("U.S. Dollars") and the
obligations of the Subsidiary Guarantor to make payments in U.S. Dollars of any
of its obligations hereunder shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment, which is expressed in or converted
into any currency other than U.S. Dollars, except to the extent such tender or
recovery shall result in the actual receipt by the applicable Holder of the full
amount of U.S. Dollars expressed to be payable in respect of any such
obligations. The obligation of the Subsidiary Guarantor to make payments in U.S.
Dollars as aforesaid shall be enforceable as an alternative or additional cause
of action for the purpose of recovery in U.S. Dollars of the amount, if any, by
which such actual receipt shall fall short of the full amount of U.S. Dollars
expressed to be payable in respect of any such obligations, and shall not be
affected by judgment being obtained for any other sums due under this
Guarantee.]1
EXECUTED by the Subsidiary Guarantor as of the day and year
first above written.
[SUBSIDIARY GUARANTOR]
By______________________
Title:
Address of Subsidiary Guarantor:
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1 Include bracketed language if Subsidiary Guarantor is organized under
the laws of a jurisdiction other then the United States or any
political subdivision thereof.