EXHIBIT 10.1
CREDIT AGREEMENT
by and among
GTECH CORPORATION
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
THE BANK OF NOVA SCOTIA
as Syndication Agent and as Lender,
CREDIT LYONNAIS NEW YORK BRANCH,
as Co-Documentation Agent and as Lender
FLEET NATIONAL BANK,
as Co-Documentation Agent and as Lender,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
June 22, 2001
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
Table of Contents
Page
ARTICLE I
Definitions and Terms
1.1. Definitions...........................................................2
1.2. Rules of Interpretation..............................................23
ARTICLE II
The Credit Facilities
2.1. Revolving Loans......................................................25
2.2. Use of Proceeds......................................................27
2.3. Notes................................................................28
2.4. Swing Line...........................................................28
ARTICLE III
Letters of Credit
3.1. Letters of Credit....................................................30
3.2. Reimbursement and Participations.....................................30
3.3. Governmental Action..................................................33
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options................................................34
4.2. Conversions and Elections of Subsequent Interest Periods.............34
4.3. Payment of Interest..................................................35
4.4. Prepayments of Eurodollar Rate Loans.................................35
4.5. Manner of Payment....................................................35
4.6. Fees.................................................................36
4.7. Pro Rata Payments....................................................37
4.8. Computation of Rates and Fees........................................37
4.9. Deficiency Advances; Failure to Purchase Participations..............37
4.10. Intraday Funding.....................................................38
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return....................................39
5.2. Limitation on Types of Loans.........................................40
5.3. Illegality...........................................................41
5.4. Treatment of Affected Loans..........................................41
5.5. Compensation.........................................................41
5.6. Taxes................................................................42
5.7. Replacement Banks....................................................44
Table of Contents
(continued)
Page
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance........................................45
6.2. Conditions of Revolving Loans and Letter of Credit...................47
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority...........................................49
7.2. Loan Documents.......................................................49
7.3. Solvency.............................................................50
7.4. Material Subsidiaries and Stockholders...............................50
7.5. Intentionally Omitted................................................50
7.6. Financial Condition..................................................50
7.7. Title to Properties..................................................51
7.8. Taxes................................................................51
7.9. Other Agreements.....................................................51
7.10. Litigation...........................................................52
7.11. Margin Stock.........................................................52
7.12. Regulated Company....................................................52
7.13. Patents, Etc.........................................................52
7.14. No Untrue Statement..................................................52
7.15. No Consents, Etc.....................................................53
7.16. Employee Benefit Plans...............................................53
7.17. No Default...........................................................54
7.18. Environmental Laws...................................................54
7.19. Employment Matters...................................................54
7.20. RICO.................................................................55
7.21. Foreign Assets Control Regulations, etc..............................55
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc...............................................56
8.2. Maintain Properties..................................................57
8.3. Existence, Qualification, Etc........................................57
8.4. Regulations and Taxes................................................57
8.5. Insurance............................................................57
8.6. True Books...........................................................58
8.7. Right of Inspection..................................................58
8.8. Observe all Laws.....................................................58
8.9. Pay Indebtedness to Lenders and Perform Other Covenants..............58
8.10. Covenants Extending to Other Persons.................................58
8.11. Officer's Knowledge of Default.......................................58
8.12. Suits or Other Proceedings...........................................59
8.13. Notice of Environmental Complaint or Condition.......................59
8.14. Environmental Compliance.............................................59
8.15. Indemnification......................................................59
8.16. Further Assurances...................................................59
8.17. Employee Benefit Plans...............................................60
8.18. Intentionally Omitted................................................60
8.19. New Subsidiaries.....................................................60
8.20. Use of Proceeds......................................................61
ARTICLE IX
Negative Covenants
9.1. Financial Covenants..................................................62
9.2. Liens................................................................62
9.3. Guaranties...........................................................64
9.4. Disposition of Assets................................................64
9.5. Investments; Acquisitions............................................64
9.6. Merger or Consolidation..............................................65
9.7. Dividends, Redemptions and Other Payments............................66
9.8. Transactions with Affiliates.........................................66
9.9. Benefit Plans........................................................66
9.10. Fiscal Year..........................................................67
9.11. Dissolution, Etc.....................................................67
9.12. Limitations on Sales and Leasebacks..................................67
9.13. Change in Control....................................................67
9.14. Transactive Corporation..............................................67
9.15. Synthetic Lease Obligations..........................................67
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default....................................................68
10.2. Agent to Act.........................................................72
10.3. Cumulative Rights....................................................72
10.4. No Waiver............................................................72
10.5. Allocation of Proceeds...............................................72
Table of Contents
(continued)
Page
ARTICLE XI
The Agent
11.1. Appointment and Authorization of Agent...............................74
11.2. Delegation of Duties.................................................74
11.3. Liability of Agent...................................................74
11.4. Reliance by Agent....................................................75
11.5. Notice of Default....................................................75
11.6. Credit Decision; Disclosure of Information by Agent..................76
11.7. Indemnification of Agent.............................................76
11.8. Agents in their Individual Capacities................................77
11.9. Successor Agent......................................................77
11.10. Sole Lender..........................................................77
11.11. Agent Notices........................................................77
11.12. Syndication and Co-Documentation Agents..............................78
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations.......................................79
12.2. Notices..............................................................81
12.3. Right of Set-off; Adjustments........................................82
12.4. Survival.............................................................83
12.5. Expenses.............................................................83
12.6. Amendments and Waivers...............................................83
12.7. Counterparts; Facsimile Signatures...................................84
12.8. Termination..........................................................84
12.9. Indemnification; Limitation of Liability.............................85
12.10. Severability.........................................................86
12.11. Entire Agreement.....................................................86
12.12. Agreement Controls...................................................86
12.13. Usury Savings Clause.................................................86
12.14. Confidentiality......................................................87
12.15. Governing Law; Waiver of Jury Trial..................................88
12.16. Special Funding Option...............................................89
EXHIBIT A APPLICABLE COMMITMENT PERCENTAGES........................A-1
EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE........................B-1
EXHIBIT C NOTICE OF APPOINTMENT (OR REVOCATION) OF
AUTHORIZED REPRESENTATIVE................................C-1
EXHIBIT D-1 FORM OF BORROWING NOTICE...............................D-1-1
EXHIBIT D-2 FORM OF BORROWING NOTICE--SWING LINE LOANS.............D-2-1
EXHIBIT E FORM OF INTEREST RATE SELECTION NOTICE...................E-1
EXHIBIT F-1 FORM OF REVOLVING NOTE.................................F-1-1
EXHIBIT F-2 FORM OF SWING LINE NOTE................................F-2-1
EXHIBIT G FORM OF OPINION OF BORROWER'S COUNSEL....................G-1
EXHIBIT H COMPLIANCE CERTIFICATE...................................H-1
EXHIBIT I FORM OF FACILITY GUARANTY................................I-1
EXHIBIT J FORM OF CONFIDENTIALITY AGREEMENT........................J-1
Schedule 7.4 Material Subsidiaries....................................S-1
Schedule 7.6 Indebtedness.............................................S-2
Schedule 7.7 Liens....................................................S-3
Schedule 7.8 Tax Matters..............................................S-4
Schedule 7.18 Environmental Matters ...................................S-5
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 22, 2001 (the "Agreement"), is
made by and among GTECH CORPORATION, a Delaware corporation having its principal
place of business in West Greenwich, Rhode Island (the "Borrower"), BANK OF
AMERICA, N.A., a national banking association organized and existing under the
laws of the United States, in its capacity as a Lender ("Bank of America"), and
each other financial institution executing and delivering a signature page
hereto and each other financial institution which may hereafter execute and
deliver an instrument of assignment with respect to this Agreement pursuant to
Section 12.1 (hereinafter such financial institutions may be referred to
individually as a "Lender" or collectively as the "Lenders"), BANK OF AMERICA,
N.A., a national banking association organized and existing under the laws of
the United States, in its capacity as administrative agent for the Lenders (in
such capacity, and together with any successor agent appointed in accordance
with the terms of Section 11.9, the "Agent"), THE BANK OF NOVA SCOTIA, as
Syndication Agent and as Lender, CREDIT LYONNAIS NEW YORK BRANCH, as
Co-Documentation Agent and as Lender, FLEET NATIONAL BANK, as Co-Documentation
Agent and as Lender;
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $300,000,000, the proceeds of
which are to be used to refinance and replace the Borrower's Existing Senior
Credit Facility (as defined below) and for working capital and other general
corporate purposes and which shall include a letter of credit facility of up to
$100,000,000 for the issuance of standby and commercial letters of credit and a
swing line facility of up to $25,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit and
letter of credit facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
ARTICLE I
Definitions and Terms
---------------------
1.1. Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling equity
interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit Facility
consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affected Loans" shall have the meaning set forth in Section 5.4
hereof.
"Affected Type" shall have the meaning set forth in Section 5.4
hereof.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with the Borrower; or (ii) which beneficially
owns or holds 15% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 15% or more of
the equity interest) of the Borrower; or (iii) 15% or more of any
class of the outstanding voting stock (or in the case of a Person
which is not a corporation, 15% or more of the equity interest) of
which is beneficially owned or held by the Borrower. The term
"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 ownership of voting stock, by contract or
otherwise.
"Agent-Related Persons" means the Agent (including any successor
administrative agent), together with its affiliates (including, in the
case of Bank of America in its capacity as the Agent, BAS), and the
officers, directors, employees and attorneys-in-fact of such Persons
and affiliates.
"Applicable Commitment Percentage" means, for each Lender at any
time, a fraction (expressed as a percentage), with respect to the
Revolving Credit Facility (including Participations in any Swing Line
Loan and the Letter of Credit Facility), the numerator of which shall
be such Lender's Revolving Credit Commitment and the denominator of
which shall be the Total Revolving Credit Commitment, which Applicable
Commitment Percentage for each Lender as of the Closing Date is as set
forth in Exhibit A; provided that the Applicable Commitment Percentage
of each Lender shall be increased or decreased to reflect any
assignments to or by such Lender effected in accordance with Section
12.1.
"Applicable Lending Office" means, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate
of such Lender) designated for such Type of Loan on the signature
pages hereof or such other office of such Lender (or an affiliate of
such Lender) as such Lender may from time to time specify to the Agent
and the Borrower by written notice in accordance with the terms hereof
as the office by which its Loans of such Type are to be made and
maintained.
"Applicable Margin" means for purposes of calculating (i) the
applicable interest margin for the Interest Period for any Eurodollar
Loan, (ii) the applicable rate for the issuance of Standby Letters of
Credit and (iii) the applicable rate of the Facility Fee, that percent
per annum set forth as the Applicable Margin in the Pricing Grid and
subject to further adjustment as therein provided.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit,
or similar documentation, executed by the Borrower from time to time
and delivered to the Issuing Bank to support the issuance of Letters
of Credit.
"Approved Fund" means any Person (other than a natural Person)
that (i) is or will be engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (ii) is administered
or managed by (x) a Lender, (y) an affiliate of a Lender or (z) an
entity or an affiliate of an entity that administers or manages a
Lender.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.1.
"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 Borrower or any Material 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);
"Authorized Representative" means any of the Chairman, Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
Vice President and Treasurer, Vice President and Controller, and
Director of Treasury of the Borrower or any other Person expressly
designated by the Chief Financial Officer or the Treasurer of the
Borrower (or the Board of Directors of the Borrower) as an Authorized
Representative of the Borrower, as set forth from time to time in a
certificate in the form of Exhibit C.
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the fluctuating rate per annum
equal to the higher of (i) the Federal Funds Rate for such day plus
one-half of one percent (0.5%) and (ii) the Prime Rate for such day.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing Line
Loan made either to (i) satisfy Reimbursement Obligations arising from
a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving
Credit Facility or a Swing Line Loan, in the forms of Exhibits D-1 and
D-2, respectively.
"Business Day" means, (i) except as expressly provided in clause
(ii), any day which is not a Saturday, Sunday or a day on which banks
in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day
which is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period, expenditures or costs for fixed or
capital assets made by the Borrower and its Subsidiaries during such
period which in accordance with GAAP applied on a Consistent Basis are
characterized as capital expenditures;
"Capital Lease" means each lease which has been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of Voting Securities of the Parent
(or securities convertible into or exchangeable for such Voting
Securities) representing more than 50% of the combined voting
power of all Voting Securities of the Parent (on a fully diluted
basis) or (B) otherwise has the ability, directly or indirectly,
to elect a majority of the board of directors of the Parent; or
(ii) the Parent shall at any time cease to own all of the
capital stock of the Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Commercial Letter of Credit" means an irrevocable
documentary letter of credit issued hereunder for the account of the
Borrower; provided that the expiry date of a Commercial Letter of
Credit shall not be later than twelve (12) months subsequent to the
date of issuance thereof and in no event later than the Revolving
Credit Termination Date;
"Confidential Information" means with respect to each Lender
all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by
or on behalf of the Borrower pursuant to this Agreement. "Confidential
Information" does not include, without limitation, information which:
(a) is in the public domain; (b) is received by such Lender in good
faith from a third party who is not known to such Lender to be bound
by a confidentiality agreement with the Borrower or known to such
Lender to be otherwise prohibited from transmitting the information to
such Lender by a contractual, legal or fiduciary obligation; (c) is
independently generated by such Lender; (d) is approved for release or
disclosure by the Borrower in a separate writing; or (e) constitutes
financial statements delivered to the Agent or a Lender under Section
8.1 that are otherwise publicly available;
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the
preparation of the audited financial statements of the Borrower
referred to as of the Closing Date in Section 7.6(a).
"Consolidated Assets" means, as of any date of
determination, the total assets of the Parent, the Borrower and its
Material Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Parent 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 Material
Subsidiaries;
"Consolidated EBITDA" means, with respect to the Borrower
and its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income excluding any extraordinary gains or losses, plus (ii)
Consolidated Interest Expense, plus (iii) taxes on income, plus (iv)
amortization, depreciation and all other non-cash expense items, all
determined on a consolidated basis in accordance with GAAP applied on
a Consistent Basis.
"Consolidated Interest Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for any Four-Quarter Period
ending on the date of computation thereof, the ratio of (i)
Consolidated EBITDA for such period, to (ii) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross cash interest expense of the
Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Net Income" means, for any period of
computation thereof, the net income of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Shareholders' Equity" means, at any time as of
which the amount thereof is to be determined, shareholders' equity of
the Parent, the Borrower and its Subsidiaries as determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; provided, however, that in calculating Consolidated
Shareholder's Equity, any amount of Brazilian foreign currency
translation adjustment, whether positive or negative, shall be
excluded in all cases.
"Consolidated Total Debt Ratio" means, with respect to the
Borrower and its Subsidiaries, the ratio of Consolidated Total
Indebtedness at such date to Consolidated EBITDA for the Four-Quarter
Period ending on or immediately prior to the date of computation
thereof; provided, however, that the calculation of Consolidated
EBITDA for the purpose of establishing the Consolidated Total Debt
Ratio for each of the four Four-Quarter Periods ending next following
the date of any Acquisition that is accounted for as a "purchase"
shall include the results of operations of the Person or assets so
acquired on a historical pro forma basis as if such Acquisition had
been consummated as a "pooling of interests," and which amounts may
include such adjustments as are permitted under Regulation S-X of the
Securities and Exchange Commission and reasonably satisfactory to the
Agent;
"Consolidated Total Indebtedness" means, with respect to the
Borrower and its Subsidiaries at any time as of which the amount
thereof is to be determined, the sum of (i) Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, (ii) all direct
guaranties of non-consolidated Indebtedness of any Person other than
Subsidiaries and (iii) the face amount of all outstanding letters of
credit issued for the account of the Borrower or any of its
Subsidiaries and all obligations (to the extent not duplicative)
arising under such letters of credit, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis; provided,
however, that there shall be excluded from the calculation of
Consolidated Total Indebtedness guaranties by the Borrower or any of
its Subsidiaries of non-consolidated Indebtedness of another Person up
to an aggregate principal amount of $10,000,000 and all Indebtedness
consisting of Capital Lease obligations incurred in connection with
off-balance sheet Sale and Leaseback Transactions;
"Consolidated Total Profits Before Tax" means, for any
period, the total profits before extraordinary gains and losses and
before Federal, state, local and foreign income or similar taxes of
the Borrower and its Subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the consolidated
financial statements (including footnotes) of such Person in
accordance with GAAP applied on a Consistent Basis, including
Statement No. 5 of the Financial Accounting Standards Board, and any
obligation of such Person guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(i) to purchase such Indebtedness or other obligation or any
property or assets constituting security therefor;
(ii) to advance or supply funds in any manner (A) for the
purchase or payment of such Indebtedness or other obligation, or
(B) to maintain a minimum working capital, net worth or other
balance sheet condition or any income statement condition of the
primary obligor;
(iii) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets of
such Person to secure payment of such Indebtedness or other
obligation;
(iv) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the
owner or holder of such Indebtedness or obligation of the ability
of the primary obligor to make payment of such Indebtedness or
other obligation; or
(v) otherwise to assure the owner of such Indebtedness or
such obligation of the primary obligor against loss in respect
thereof.
"Continue", "Continuation", and "Continued" shall refer to
the continuation pursuant to Section 4.2 hereof of a Eurodollar Rate
Loan of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 4.2 of one Type of Loan into another
Type of Loan.
"Core Business" of the Borrower or any of its Subsidiaries
means (a) the sale, lease, delivery, installation, operation and/or
maintenance by the Borrower or any of its Subsidiaries of computers,
computer terminals and/or related hardware and software pertaining to
the operation of lotteries and/or similar games of chance and/or
pari-mutuel installations (including, without limitation, lotteries
(on-line, off-line, passive ticket, instant ticket, break-open ticket
and video), bingo, race tracks, jai alai, legalized bookmaking,
off-track betting, casino, keno and sports betting facilities), (b)
any type of government or state benefits processing or eligibility,
(c) any type of commercial processing, including debit and credit
transactions, (d) any type of information technology and the products
and services related to such business, (e) any type of communications
services similar to that provided in (a) through (d) above and (f) the
employment of any hardware or software utilized in any of the business
described in (a) through (e) above whether by sale, lease, license or
service in either government or commercial enterprises worldwide;
"Credit Parties" means, collectively, the Borrower and the
Guarantors.
"Default" means any event or condition which, with the
giving or receipt of notice or lapse of time or both, would constitute
an Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar
Rate Loan, until the end of the Interest Period applicable thereto, at
a rate of interest per annum which shall be two percent (2%) above the
Eurodollar Rate applicable to such Loan, and thereafter at a rate of
interest per annum which shall be two percent (2%) above the Base
Rate, (ii) with respect to Base Rate Loans, Swing Line Loans,
Reimbursement Obligations, fees, and other amounts payable in respect
of (x) Obligations or (y) (except as otherwise expressly provided
therein) the obligations of any Credit Party other than the Borrower
under any of the other Loan Documents, a rate of interest per annum
which shall be two percent (2%) above the Base Rate and (iii) in any
case, the maximum rate permitted by applicable law, if lower.
"Determination Date" means the last day of each fiscal quarter of
the Borrower.
"Dollars" and the symbol "$" means dollars constituting
legal tender for the payment of public and private debts in the United
States of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of
a Lender, (iii) an Approved Fund and (iv) any other Person (other than
a natural Person)having an office within the United States approved by
the Agent and unless (x) such Person is taking delivery of an
assignment in connection with physical settlement of a credit
derivatives transaction or (y) an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 12.1, the Borrower, each such approval not to be unreasonably
withheld (provided that the incurrence by the Borrower of additional
costs pursuant to Section 5.6 as a result of such assignment shall
constitute a reasonable basis for withholding such consent) or
delayed; provided, however, that neither the Borrower nor an Affiliate
of the Borrower shall qualify as an Eligible Assignee. In addition to
the foregoing, an assignment (other than an assignment of 100% of its
interest) by Bank of America shall not include any portion of the
Swing Line or obligation to issue Letters of Credit.
"Eligible Securities" means all investment grade securities
as determined by the rating system of either S&P or Moody's, other
securities not subject to either such rating system which are of
comparable investment grade risk profile and any other class of
securities previously approved in writing by the Required Lenders.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of
ERISA which (A) is maintained for employees of the Borrower or any of
its ERISA Affiliates, or any Subsidiary or is assumed by the Borrower
or any of its ERISA Affiliates, or any Subsidiary in connection with
any Acquisition or (B) has at any time been maintained for the
employees of the Borrower, any current or former ERISA Affiliate, or
any Subsidiary, but excluding any employee benefit plan that has been
assumed by any other Person in connection with the sale of an ERISA
Affiliate or Subsidiary and under which neither the Borrower or any
ERISA Affiliate has any continuing liability under ERISA and (ii) any
plan, arrangement, understanding or scheme maintained by the Borrower
or any Subsidiary that provides retirement, deferred compensation,
employee or retiree medical or life insurance, severance benefits or
any other benefit covering any employee or former employee and which
is administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation and
Recovery Act, as amended; the Toxic Substances Control Act, as
amended; the Clean Air Act, as amended; the Clean Water Act, as
amended; together with all regulations promulgated thereunder, and any
other "Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is
under common control with the Borrower, who together with the
Borrower, is treated as a single employer within the meaning of
Section 414(b) and (c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum
calculated according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable Rate 1- Reserve
-----------------------
Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Senior Credit Facility" means that certain
$400,000,000 revolving credit, letter of credit, swing line and
competitive bid facilities made available to the Borrower under that
certain Amended and Restated Credit Agreement dated as of June 18,
1997 by and among Bank of America (as successor to NationsBank,
National Association), as Administrative Agent, the other Co-Agents,
each of the Lenders parties thereto, and the Borrower, and the other
loan documents executed in connection therewith.
"Facility Fee" means that percent per annum, based upon the
Consolidated Total Debt Ratio for the Four-Quarter Period most
recently ended, set forth as the Facility Fee in the Pricing Grid and
subject to further adjustment as therein provided.
"Facility Guaranty" means (i) the Parent Guaranty and (ii)
each Guaranty Agreement between one or more Guarantors and the Agent
(whether now existing or hereafter delivered in accordance with
Section 8.19 hereof) for the benefit of the Agent and the Lenders,
substantially in the form of Exhibit I attached hereto and
incorporated herein by reference, delivered as of the Closing Date and
otherwise pursuant to Section 8.19, as the same may be amended,
modified or supplemented from time to time.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings, Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued
and unpaid interest, fees and other Obligations with respect thereto,
other than (i) the undrawn portion of Letters of Credit and (ii) all
letter of credit fees relating thereto accruing after such date (which
shall be payable solely for the account of the Issuing Bank) computed
(based on the interest rates and the Applicable Margin then in effect)
on such undrawn amounts to the respective expiry dates of the Letters
of Credit, in each case as have been fully cash collateralized in a
manner satisfactory to the Issuing Bank; (b) all Swap Agreements shall
have been terminated, expired or cash collateralized, (c) all
Revolving Credit Commitments and Letter of Credit Commitments shall
have terminated or expired and (d) the Borrower shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
(other than Obligations consisting of continuing indemnities and other
contingent Obligations of the Borrower or any Guarantor that may be
owing to the Lenders pursuant to the Loan Documents and expressly
survive termination of this Agreement);
"FASB 133" means Statement of Financial Accounting Standards
No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average
rate charged to Bank of America on such day on such transactions as
reasonably determined by the Agent.
"Fee Letter" means that certain fee letter dated as of April
11, 2001 between the Borrower and the Agent.
"Fiscal Quarter" means the quarterly period of the Borrower
ending on the last Saturday in each May, August, November and February
of any Fiscal Year;
"Fiscal Year" means the annual period of the Borrower ending
on the last Saturday of each February.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full
consecutive fiscal quarters of the Borrower and its Subsidiaries,
taken together as one accounting period.
"GAAP" means generally accepted accounting principles, being
those principles of accounting set forth in pronouncements of the
Financial Accounting Standards Board, the American Institute of
Certified Public Accountants, or which have other substantial
authoritative support and are applicable in the circumstances as of
the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, collectively, (i) the Parent, (ii) each
Material Domestic Subsidiary existing on the Closing Date and (iii)
any other Person who shall become a Material Domestic Subsidiary after
the Closing Date and shall execute and deliver to the Agent a Facility
Guaranty as provided in Section 8.19 hereof.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" of a Person means, without duplication, (i)
all Indebtedness for Money Borrowed, (ii) all obligations of such
Person arising under acceptance facilities, (iii) the undrawn face
amount of, and unpaid reimbursement obligations in respect of, all
letters of credit issued for the account of such Person, (iv) all
obligations of such Person upon which interest charges are actually
paid, (v) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by
such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property), (vi) all executory obligations
of such Person in respect of Rate Hedging Obligations, and (vii) all
Contingent Obligations in respect of Indebtedness set forth in clauses
(i) through (vi) above of Persons other than the Borrower or any
Subsidiary. "Indebtedness" shall not include, however, any Synthetic
Lease Obligations or any intercompany indebtedness of the Borrower and
its Subsidiaries.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, (i) all indebtedness in respect of money
borrowed evidenced by a promissory note, bond, debenture or similar
written obligation for the payment of money, and (ii) all obligations
under Capital Leases, and the deferred purchase price of any property
or services, including in each case all such items incurred by any
partnership or joint venture as to which such Person is liable as a
general partner or joint venturer, and excluding in each case trade
payables and accrued expenses incurred in the ordinary course of
business. "Indebtedness for Money Borrowed" shall not include,
however, any Synthetic Lease Obligations.
"Indemnified Liabilities" has the meaning therefor provided
in Section 12.9.
"Interbank Offered Rate" means, with respect to any
Eurodollar Rate Loan for the Interest Period applicable thereto:
(a) the rate per annum equal to the rate
determined by the Agent to be the offered rate that appears
on the page of the Telerate screen that displays an average
British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such
Interest Period, or
(b) in the event the rate referenced in the
preceding subsection (a) does not appear on such page or
service or such page or service shall cease to be available,
the rate per annum equal to the rate determined by the Agent
to be the offered rate on such other page or other service
that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the
preceding subsections (a) and (b) are not available, the
rate per annum determined by the Agent as the rate of
interest (rounded upward to the next 1/100th of 1%) at which
deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to
such Interest Rate would be offered by Bank of America's
London Branch to major banks in the offshore Dollar market
at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest
Period.
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three, six or twelve months thereafter as notified to
the Agent by the Authorized Representative in accordance with the
terms hereof; provided that,
(i) if an Interest Period for a Eurodollar Rate
Loan would end on a day which is not a Business Day, such
Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which
case such Interest Period shall end on the next preceding
Business Day); and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of an Interest Period for any Eurodollar Rate Loan or the
Conversion of any Eurodollar Rate Loan into a Base Rate Loan or the
Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in the
form of Exhibit E.
"Investment Commitment" means, with respect to any
investment, loan or advance, the amount initially advanced, invested
or disbursed less an amount equal to the sum of (i) repayments of such
advances, including all interest income therefrom, (ii) dividends and
other distributions received from such Person paid or made on
securities issued solely in consideration of such investment, (iii)
net gains on sales or other dispositions of capital stock, securities
or assets of such Person purchased with such investment, and (iv) all
other net profits or other amounts net of expenses realized from such
investment or advance and all other net returns on Capital
Expenditures, provided that the aggregate amount of all such
repayments, dividends, net gains, profits and other amounts so
deducted with respect to each such investment, advance or Capital
Expenditure shall not exceed the initial principal amount of such
investment, advance or Capital Expenditure;
"Issuing Bank" means Bank of America as issuer of Letters of
Credit under Article III.
"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.
"Letter of Credit" means a Standby or Commercial Letter of
Credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate
stated amount at any time outstanding not exceeding the Total Letter
of Credit Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or Loans" means any of the Revolving Loans or the Swing
Line Loans.
"Loan Documents" means this Agreement, the Notes, the Facility
Guaranties, the Applications and Agreements for Letter of Credit, and
all other instruments and documents heretofore or hereafter executed or
delivered to or in favor of any Lender (including the Issuing Bank) or
the Agent in connection with the Loans made and transactions
contemplated under this Agreement, as the same may be amended,
supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Parent or the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of the Parent, the Borrower or the Credit
Parties taken as a whole to pay or perform their respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the validity, legality or enforceability of any of
the Loan Documents.
"Material Domestic Subsidiary" means each Material Subsidiary
which is a Domestic Subsidiary.
"Material Subsidiary" means the Passive Investment Company and
any direct or indirect Subsidiary of the Borrower (other than
Transactive Corporation) which (i) has total assets equal to or greater
than 5% of Consolidated Assets (calculated as of the most recent fiscal
period with respect to which the Agent shall have received financial
statements required to be delivered pursuant to Sections 8.1(a) or (b)
(or if prior to delivery of any financial statements pursuant to such
Sections, then calculated with respect to the Fiscal Year end financial
statements referenced in Section 7.6) (the "Required Financial
Information")) or (ii) has profits equal to or greater than 5% of
Consolidated Total Profits Before Tax (calculated for the most recent
period for which the Agent has received the Required Financial
Information); provided, however, that any Material Subsidiary under
clauses (i) or (ii) above shall cease to be a Material Subsidiary and
shall be released immediately from its Facility Guaranty or obligation
to provide a Facility Guaranty, as the case may be, if it or
substantially all of its assets are sold or conveyed in a transaction
otherwise permitted under this Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Note Agreement" means that certain Note and Guaranty
Agreement dated as of May 15, 1997 by and among the Borrower, the
Parent and the note purchasers thereunder, as in effect on the Closing
Date, pursuant to which the Borrower has issued the Private Placement
Debt;
"Notes" means, collectively, the Swing Line Note and the
Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of the Borrower to any Lender (or any affiliate of any
Lender) which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders (including the Issuing Bank), the Agent or
BAS hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other similar applicable
documents relating in a material way to the operation, governance or
management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required board of directors, shareholder, member
or partner action), or other similar official action, as applicable,
taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Parent" means GTECH Holdings Corporation, a Delaware
corporation, and owner of all of the common stock of the Borrower.
"Parent Guaranty" means that certain Guaranty Agreement of the
Parent dated as of the date hereof in favor of the Agent for the
benefit of the Agent and the Lenders and guaranteeing payment of the
Obligations, as the same may be amended, modified or supplemented from
time to time;
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of America in respect of a
Swing Line Loan made by Bank of America in accordance with the terms
hereof.
"Passive Investment Company" means a single wholly owned
Subsidiary of the Borrower whose function and activity shall be
restricted solely to one or more of the following: (a) the purchase of
all or a portion of the Borrower's accounts receivable, (b) the
purchase of all or a portion of the intellectual property of the
Borrower upon the condition that such intellectual property be licensed
back to the Borrower and (c) the lending of money to and management of
investments of the Borrower and its Subsidiaries;
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pricing Grid" means:
Applicable Margin for
Applicable Margin Eurodollar Rate Loans
Consolidated Total for and Letter of Credit
Tier Debt Ratio Facility Fee Fees
---- ------------------ ----------------- ----------------------
I Less than or equal .150% .750%
to .50 to 1.00
II Less than or equal .175% .825%
to 1.00 to 1.00 but
greater than .50 to
1.00
III Less than or equal .225% .925%
to 1.50 to 1.00 but
greater than 1.00 to
1.00
IV Less than or equal .275% 1.025%
to 2.00 to 1.00 but
greater than 1.50 to
1.00
V Greater than 2.00 to .375% 1.125%
1.00
The Applicable Margin and the Facility Fee shall be
established based upon the Consolidated Total Debt Ratio at the end of
each fiscal quarter of the Borrower (each, a "Determination Date"). Any
change in the Applicable Margin or the Facility Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to Section
8.1(a)(ii) and Section 8.1(b)(ii), subject to review and approval of
such computations by the Agent, and shall be effective commencing on
the fifth Business Day following the date such certificate is received
until the fifth Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur. From the Closing Date to the fifth Business Day
following the date the certificate referred to in the preceding
sentence for the fiscal period ended as at the first Determination Date
is delivered or is required to be delivered (whichever shall first
occur), the Applicable Margin and the Facility Fee shall be Tier III.
Notwithstanding the provisions of the two preceding sentences, if the
Borrower shall fail to deliver any such certificate within the time
period required by Section 8.1, then the Agent shall give the Borrower
notice of such non-delivery and the Applicable Margin and Facility Fee
shall be Tier V from the date such certificate was due until the fifth
Business Day following the date the appropriate certificate is so
delivered.
"Prime Rate" means the per annum rate of interest as publicly
announced from time to time by Bank of America as its "prime rate".
Such rate is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Principal Office" means the principal office of Bank of
America, presently located at 101 North Tryon Street, 15th Floor, NC1
001-15-04, Charlotte, North Carolina 28255, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Priority Debt" means the sum (without duplication) of (i) the
aggregate unpaid principal amount of Indebtedness of the Borrower or
any Material Subsidiary secured by Liens (other than Liens permitted by
Section 9.2(a), (b), (c), (d), (e), (g), (h), (i) and (j) hereof), plus
(ii) all outstanding Attributable Debt of the Borrower or any Material
Subsidiary (other than Attributable Debt with respect to any Sale and
Leaseback Transaction permitted by Section 9.12(a) or (b) hereof) plus
(iii) the aggregate unpaid principal amount of all Indebtedness of all
Material Subsidiaries (other than Indebtedness of the Borrower or
Indebtedness of any Subsidiary permitted hereunder and permitted under
Section 10.8(a) through (d) of the Note Agreement);
"Private Placement Debt" means Indebtedness of up to an
aggregate principal amount of $300,000,000 evidenced by certain 7.75%
Series A Senior Guaranteed Notes due 2004 and 7.87% Series B Senior
Guaranteed Notes due 2007 issued by the Borrower pursuant to the Note
Agreement;
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing. For purposes of any computation hereunder, each Rate
Hedging Obligation shall be valued at the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Rate Hedging Obligation, the
net obligations of the Borrower or any Subsidiary thereunder equal to
the termination value thereof as determined in accordance with its
provisions (if such Rate Hedging Obligation has been terminated) or the
mark to market value thereof as determined on the basis of available
quotations from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change in, or the adoption or
making of new, United States Federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after the date hereof of
any interpretations, directives or requests applying to a class of
banks, which includes any of the Lenders, under any United States
Federal or state or foreign laws or regulations (whether or not having
the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof or compliance
by any Lender with any request or directive, whether or not having the
force of law, whether or not failure to comply therewith would be
unlawful.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Related LC Documents" shall have the meaning set forth in
Section 3.2(i)(i).
"Replacement Bank" means (i) any Lender or Lenders selected by
the Borrower or (ii) one or a group of banks or other financial
institutions selected by the Borrower and acceptable to and approved by
the Agent and the Required Lenders in their reasonable discretion, any
of which shall replace any then existing Lender or Lenders pursuant to
Section 4.9 or 5.7 hereof and have a Revolving Credit Commitment equal
in amount to the Revolving Credit Commitment of the replaced Lender or
Lenders.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings; provided that, for the
purpose of this definition only, (A) if any Lender shall have failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (B) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such
Lender shall pay such deficiency amount to the Issuing Bank together
with interest thereon as provided in Section 4.9 and (C) if any Lender
shall have failed to pay to Bank of America on demand its Applicable
Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by Bank of America until such Lender shall pay such deficiency amount
to Bank of America together with interest thereon as provided in
Section 4.9.
"Reserve Requirement" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Reserve Requirement.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Section 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest, fees and other
amounts thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Section 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.3 substantially in the form of Exhibit
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Sale and Leaseback Transaction" means a transaction or series
of transactions pursuant to which the Borrower or any Material
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 Borrower or any Material 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.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"SPC" shall have the meaning set forth in Section 12.16(a)
hereof.
"Standby Letter of Credit" means an irrevocable Standby Letter
of Credit issued hereunder for the account of the Borrower or any
Subsidiary, provided that the expiry date of such Standby Letter of
Credit shall not be later than the Revolving Credit Termination Date;
"Stated Termination Date" means the fifth anniversary of the
Closing Date.
"Subsidiary" means (i) any corporation or other entity in
which more than 50% of its outstanding Voting Securities or more than
50% of all equity interests is owned directly or indirectly by the
Borrower and/or by one or more of the Borrower's Subsidiaries at or
after the Closing Date or (ii) any joint venture whose financial
information and operations are required to be consolidated in the
financial statements of the Borrower in accordance with GAAP applied on
a Consistent Basis.
"Subsidiary Debt" means, without duplication, that portion of
Consolidated Total Indebtedness incurred by any Subsidiary;
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any one or more Lenders with respect to Indebtedness
evidenced by any or all of the Notes, on terms mutually acceptable to
the Borrower and such Lender(s), which agreements create Rate Hedging
Obligations.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to Section 2.4.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to Section 2.4.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to Bank of America as
provided in Section 2.3 substantially in the form of Exhibit F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Swing Line Rate" means the rate of interest established
pursuant to the Fee Letter;
"Synthetic Lease Obligations" means all monetary obligations
of a lessee under any tax retention or other synthetic leases which is
treated as an operating lease under GAAP but the liabilities under
which are or would be characterized as indebtedness of such Person for
tax purposes or upon the insolvency of such Person. The amount of
Synthetic Lease Obligations in respect of any synthetic lease at any
date of determination thereof shall be equal to the aggregate purchase
price of any property subject to such lease less the aggregate amount
of payments of rent theretofore made which reduce the lessee's
obligations under such synthetic lease and which are not the financial
equivalent of interest.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"Total Letter of Credit Commitment" means an amount not to
exceed $100,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $300,000,000, as reduced from time to time in accordance with
Section 2.1(e).
"Transactive Corporation" means Transactive Corporation, a
Delaware corporation.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the New York
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and such term
shall not limit a general statement to matters similar to those
specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
ARTICLE II
The Credit Facilities
---------------------
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage up to but
not exceeding the Revolving Credit Commitment of such Lender; provided,
however, that the Lenders will not be required and shall have no
obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; provided further, however, that immediately after
giving effect to each such Advance, the amount of Outstandings shall
not exceed the Total Revolving Credit Commitment. Within such limits
and subject to the other terms and conditions of this Agreement, the
Borrower may borrow, repay (without premium or penalty) and reborrow
under the Revolving Credit Facility on a Business Day from the Closing
Date until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date.
(b) Amounts. The Outstandings shall not exceed at any time the
Total Revolving Credit Commitment, and, in the event there shall be
outstanding any such excess, the Borrower shall immediately make such
payments and prepayments as shall be necessary to comply with this
restriction. Each Advance under the Revolving Credit Facility, other
than Base Rate Refunding Loans, shall be in a principal amount of at
least $5,000,000, and, if greater than $5,000,000, an integral multiple
of $100,000.
(c) Advances. (i) An Authorized Representative shall give the
Agent (1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Rate Loan (whether representing an additional
borrowing or the Continuation of a borrowing hereunder or the
Conversion of a borrowing hereunder from a Base Rate Loan to a
Eurodollar Rate Loan) prior to 11:30 A.M. and (2) irrevocable
telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans to the extent the same are effected without notice
pursuant to Section 2.1(c)(iii) and whether representing an additional
borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 11:30 A.M. on the
day of such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Agent, shall specify the amount of the
borrowing, the type of Revolving Loan (Base Rate or Eurodollar Rate),
the date of borrowing and, if a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice on the same day by telefacsimile transmission in
the form of a Borrowing Notice or Interest Rate Selection Notice (as
applicable) with appropriate insertions but failure to provide such
confirmation shall not affect the validity of such telephonic notice.
Notice of receipt of such Borrowing Notice or Interest Rate Selection
Notice, as the case may be, shall be provided by the Agent to each
Lender with reasonable promptness, but (provided the Agent shall have
received such notice by 11:30 A.M.) not later than 1:00 P.M. on the
same day as the Agent's receipt of such notice. The Agent shall provide
each Lender written confirmation of such telephonic notice by
telefacsimile transmission but failure to provide such notice shall not
affect the validity of such telephonic notice. The Borrower shall have
the option to elect the duration of subsequent Interest Periods and to
convert the Loans (other than Swing Line Loans) in accordance with
Section 4.2 hereof.
(ii) Not later than 2:30 P.M. on the date specified for each
borrowing under this Section 2.1, each Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make the amount
of the Advance or Advances to be made by it on such day available by
wire transfer to the Agent in the amount of its pro rata share,
determined according to such Lender's Applicable Commitment Percentage
of the Revolving Loan or Revolving Loans to be made on such day. Such
wire transfer shall be directed to the Agent at the Principal Office
and shall be in the form of Dollars constituting immediately available
funds. The amount so received by the Agent shall, subject to the terms
and conditions of this Agreement, be made available to the Borrower by
delivery and deposit of the proceeds thereof by 3:00 p.m. on the date
specified for each borrowing to Borrower's account at Fleet National
Bank, ABA routing number 011000390, account number 07718069 (or such
other account as may be directed by two (2) Authorized Representatives
of the Borrower).
(iii) Notwithstanding the foregoing, if a drawing is made
under any Letter of Credit, such drawing is honored by the Issuing
Bank, and the Borrower shall not immediately fully reimburse the
Issuing Bank in respect of such drawing from other funds available to
the Borrower, (A) provided that the conditions to making a Revolving
Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank
by the Agent without the requirement of notice to or from the Borrower
from immediately available funds which shall be advanced as a Base Rate
Refunding Loan to the Agent at its Principal Office by each Lender
under the Revolving Credit Facility in an amount equal to such Lender's
Applicable Commitment Percentage of such Reimbursement Obligation, and
(B) if the conditions to making a Revolving Loan as herein provided
shall not then be satisfied, each of the Lenders shall fund by payment
to the Agent (for the benefit of the Issuing Bank) at its Principal
Office in immediately available funds the purchase from the Issuing
Bank of their respective Participations in the related Reimbursement
Obligation based on their respective Applicable Commitment Percentages
of the Total Letter of Credit Commitment. If a drawing is presented
under any Letter of Credit in accordance with the terms thereof and the
Borrower shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be provided
promptly by the Issuing Bank to the Agent and the Agent shall provide
notice to each Lender by telephone or telefacsimile transmission. If
notice to the Lenders of a drawing under any Letter of Credit is given
by the Agent at or before 12:00 noon on any Business Day, each Lender
shall either make a Base Rate Refunding Loan or fund the purchase of
its Participation as specified above in the amount of such Lender's
Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before
2:30 P.M. on the same Business Day. If such notice to the Lenders is
given by the Agent after 12:00 noon on any Business Day, each Lender
shall either make such Base Rate Refunding Loan or fund such purchase
before 12:00 noon on the next following Business Day.
(d) Repayment of Revolving Loans. The principal amount of each
Revolving Loan, all accrued and unpaid interest, fees and other
Obligations shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any Business Day,
upon (A) at least three (3) Business Days' irrevocable telephonic
notice in the case of each Revolving Loan that is a Eurodollar Rate
Loan from an Authorized Representative (effective upon receipt) to the
Agent prior to 10:30 A.M. and (B) irrevocable telephonic notice in the
case of each Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 10:30
A.M. on the day of such proposed repayment. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice but failure to provide such confirmation shall
not effect the validity of such telephonic notice. All prepayments of
Revolving Loans made by the Borrower shall be in the amount of
$5,000,000 or such greater amount which is an integral multiple of
$100,000, or the amount equal to all Revolving Credit Outstandings, or
such other amount as necessary to comply with Section 2.1(b).
(e) Reductions. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than ten
(10) Business Days' prior irrevocable written notice to the Agent,
effective upon receipt, to reduce the Total Revolving Credit
Commitment. The Agent shall give each Lender, within one (1) Business
Day of receipt of such notice, telephonic notice (confirmed in
writing), of such reduction. Each such reduction shall be in the
aggregate amount of $10,000,000 or such greater amount which is in an
integral multiple of $1,000,000, or the entire remaining Total
Revolving Credit Commitment, and shall permanently reduce the Total
Revolving Credit Commitment and the Revolving Credit Commitment of each
Lender pro rata. No such reduction shall be permitted that results in
the payment of any Eurodollar Rate Loan other than on the last day of
the Interest Period of such Loan unless such prepayment is accompanied
by amounts due, if any, under Section 5.5 hereof. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of
the Revolving Loans or Swing Line Loans to the extent that the
principal amount of the Outstandings exceeds the Total Revolving Credit
Commitment after giving effect to such reduction, together with accrued
and unpaid interest and fees on the amounts prepaid. A reduction of the
Total Revolving Credit Commitment to zero and payment of all
Obligations hereunder (including the discharge of all obligations of
the Issuing Bank and the Lenders with respect to the Letters of Credit
and Participations) shall be deemed a cancellation and termination of
this Agreement.
2.2. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and the Swing Line hereunder shall be used by the
Borrower (i) for general working capital needs and other lawful corporate
purposes, including the making of Capital Expenditures permitted hereunder, and
(ii) to refinance the Borrower's Existing Senior Credit Facility.
2.3. Notes.
(a) Revolving Notes. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower.
(b) Swing Line Note. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
2.4. Swing Line.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the
Agent and the Lenders, Bank of America shall make available, on a same
day basis, Swing Line Loans to the Borrower prior to the Revolving
Credit Termination Date. Bank of America shall not be obligated to make
any Swing Line Loan pursuant hereto (i) if to the actual knowledge of
Bank of America the Borrower is not in compliance with all the
conditions to the making of Revolving Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line Loan, the
Swing Line Outstandings exceed $25,000,000, or (iii) if after giving
effect to such Swing Line Loan, the sum of the Swing Line Outstandings,
Revolving Credit Outstandings and Letter of Credit Outstandings exceeds
the Total Revolving Credit Commitment. The Borrower may, subject to the
conditions set forth in the preceding sentence, borrow, repay and
reborrow under this Section 2.4. Unless notified to the contrary by
Bank of America, borrowings under the Swing Line shall be made in the
minimum amount of $500,000 or, if greater, in amounts which are
integral multiples of $100,000, or in the amount necessary to effect a
Base Rate Refunding Loan, upon written request by telefacsimile
transmission, effective upon receipt, by an Authorized Representative
of the Borrower made to Bank of America not later than 12:30 P.M. on
the Business Day of the requested borrowing. Each such Borrowing Notice
shall specify the amount of the borrowing and the date of borrowing,
and shall be in the form of Exhibit D-2, with appropriate insertions.
Unless notified to the contrary by Bank of America, each repayment of a
Swing Line Loan shall be in an amount which is an integral multiple of
$500,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Swing Line Rate. All accrued and unpaid interest on Swing Line
Loans shall be payable, on the dates and in the manner provided in
Section 4.3 with respect to interest on Base Rate Loans. Each provision
of Section 2.1(c) and (d) hereof applicable to Base Rate Loans shall be
applicable in all respects to each Swing Line Loan.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase price
therefor in an amount equal to its Participation therein. Any Advance
made by a Lender pursuant to demand of Bank of America of the purchase
price of its Participation shall be deemed to be a Base Rate Refunding
Loan under Section 2.1 if the conditions to making Revolving Loans
shall then be satisfied. If such conditions are not then satisfied,
such Advance shall be deemed to be the funding by such Lender of the
purchase price of its Participation in such Swing Line Loan. The
obligation of each Lender to so provide its purchase price to Bank of
America shall be absolute and unconditional and shall not be affected
by the occurrence of an Event of Default or any other occurrence or
event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to Bank of America the amount necessary to repay such
Swing Line Outstandings (which Bank of America shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to Section 2.1(c)(ii). The
proceeds of such Advances shall be paid to Bank of America for application to
the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest and fees thereon shall be due and payable in
full.
ARTICLE III
Letters of Credit
-----------------
3.1. Letters of Credit. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement and in reliance upon the agreements of the
other Lenders set forth in this Article III and in Section 2.1(c)(ii), upon
request of the Borrower to issue from time to time for the account of the
Borrower Letters of Credit upon delivery to the Issuing Bank of an Application
and Agreement for Letter of Credit relating thereto in form and content
reasonably acceptable to the Issuing Bank; provided, that (i) the Issuing Bank
shall not be obligated to issue (or renew) any Letter of Credit if it has been
notified by the Agent or has actual knowledge that a Default or Event of Default
has occurred and is continuing, (ii) the Letter of Credit Outstandings shall not
exceed the Total Letter of Credit Commitment and (iii) no Letter of Credit shall
be issued (or renewed) if, after giving effect thereto, Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing Line Outstandings
shall exceed the Total Revolving Credit Commitment. No Letter of Credit shall be
issued by the Issuing Bank with an expiry date (including all rights of the
Borrower or any beneficiary named in such Letter of Credit to require renewal)
or payment date occurring subsequent to the fifth Business Day preceding the
Revolving Credit Termination Date. Any request for the issuance of a Letter of
Credit shall be deemed a representation and warranty by the Borrower to the
Issuing Bank and the Lenders that all the representations and warranties set
forth in Article VII hereof and in the other Loan Documents (other than those
expressly stated to refer to a particular date) are true and correct as of the
date hereof except that the representations and warranties set forth in Sections
7.4 and 7.6 hereof shall be deemed to include and take into account any merger
or consolidation permitted under Section 9.6 hereof and the reference to the
financial statement in Section 7.6(a) hereof are to those financial statements
most recently delivered pursuant to Section 8.1.
3.2. Reimbursement and Participations.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
Section 2.1 and Swing Line Loans if permitted by Section 2.4)
sufficient funds to pay all debts and liabilities arising under any
Letter of Credit; provided that to the extent permitted by Section 2.1,
such amounts shall be paid pursuant to Advances under the Revolving
Credit Facility. The Issuing Bank agrees to give the Borrower prompt
written notice of any request for a draw under a Letter of Credit. The
Borrower's obligations to pay the Issuing Bank under this Section 3.2,
and the Issuing Bank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including without limitation the unavailability of any Advance under
the Revolving Credit Facility. In the event an Advance is not available
under the Revolving Credit Facility, the Issuing Bank may charge any
account the Borrower may have with it for any and all amounts the
Issuing Bank pays under a Letter of Credit, plus charges and reasonable
expenses as from time to time agreed to by the Issuing Bank and the
Borrower. The Borrower agrees to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder on demand at the
Default Rate from the date such amount was due and payable to the date
such amount is paid in full.
(b) In accordance with the provisions of Section 2.1(c), the
Issuing Bank shall notify the Agent (and shall also notify the
Borrower) of any drawing under any Letter of Credit as promptly as
practicable following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the Issuing Bank under Section 3.2(a), each Lender
(other than the Issuing Bank) thereby, shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to the Issuing Bank, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of
Credit in the manner and with the effect provided in Section
2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to Section 2.1(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant
to Section 2.1(c)(iii) and Section 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever. In
the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment
(in fully collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Borrower, the Issuing Bank shall promptly pay to each Lender an
amount equal to its Applicable Commitment Percentage of such payment
from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent, and the Agent shall deliver to
each Lender, a notice describing the aggregate undrawn amount of all
Letters of Credit at the end of such quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to the Agent,
and the Agent shall deliver to such Lender at such Lender's expense,
any other information reasonably requested by such Lender with respect
to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article VI,
be subject to the conditions that (x) such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, (y) the
issuance of such Letter of Credit shall not violate any policy of the
Issuing Bank, and (z) the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent
with such practices and procedures and shall not be in conflict with
any of the express terms herein contained. Unless otherwise expressly
agreed by the Issuing Bank and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an existing Letter
of Credit), (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance)
shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the "ICC") at the
time of issuance (including the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding
the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of
a party who is authorized under such Letter of Credit to draw or issue
any drafts or other documents. The Issuing Bank will use reasonable
care in accordance with its established procedures for its customers
generally to determine that a legal representative is authorized to
sign a Letter of Credit for a party.
(h) Without limiting the generality of the provisions of, and
without duplication of, Section 12.9, the Borrower hereby agrees to
defend, indemnify and hold harmless the Issuing Bank, each other Lender
and the Agent from and against any and all claims and damages, losses,
liabilities, reasonable costs and expenses which the Issuing Bank, such
other Lender or the Agent may incur (or which may be claimed against
the Issuing Bank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment
or failure to pay under any Letter of Credit; provided that the
Borrower shall not be required to indemnify the Issuing Bank, any other
Lender or the Agent for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by the
willful misconduct or gross negligence of the party to be indemnified.
The indemnification and hold harmless provisions of this Section 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under the following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit, the obligation supported by any Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense or
other rights which the Borrower may have at any time against
any beneficiary or any transferee of a Letter of Credit (or
any persons or entities for whom any such beneficiary or any
such transferee may be acting), the Agent, the Lenders or any
other Person, whether in connection with the Loan Documents,
the Related LC Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) the existence, character, quality, quantity,
condition, value, or delivery (including the time, place,
manner or order thereof) of property described or purportedly
described in documents presented in connection with any Letter
of Credit or the existence, nature or extent of any insurance
relating thereto;
(vi) any draft, statement or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vii) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(viii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
3.3. Governmental Action. The Issuing Bank shall be under no obligation
to issue any Letter of Credit if any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Bank from issuing such Letter of Credit, or any law
applicable to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from,
the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the Letter of Credit any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the Issuing Bank in good
faith deems material to it.
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
-------------------------------------------------
4.1. Interest Rate Options. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
Sections 2.1(c)(i) and 4.2, as applicable; provided, however, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than
fifteen (15) different Interest Periods, and (b) no Eurodollar Rate Loan shall
have an Interest Period that extends beyond the Stated Termination Date. If the
Agent does not receive a Borrowing Notice or an Interest Rate Selection Notice
giving notice of election of the duration of an Interest Period or of Conversion
of any Loan to or Continuation of a Loan as a Eurodollar Rate Loan by the time
prescribed by Sections 2.1(c)(i) and 4.2, as applicable, the Borrower shall be
deemed to have elected to obtain or Convert such Loan to (or Continue such Loan
as) a Swing Line Loan, if available under Section 2.4(a), until the Borrower
notifies the Agent in accordance with Section 4.2; provided, however, if Swing
Line Loans are not available, the Borrower shall be deemed to have elected to
Convert or Continue such Loan as a Base Rate Loan. The Borrower shall not be
entitled to elect to Continue any Loan as or Convert any Loan into a Eurodollar
Rate Loan if a Default or Event of Default shall have occurred and be
continuing.
4.2. Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth in the definition of "Interest Period" and
in Section 4.1 and Article V, the Borrower may:
(a) after notice to the Agent on or before 10:30 A.M. on any
Business Day, Convert all or a part of any Eurodollar Rate Loan to a
Base Rate Loan on the last day of the Interest Period for such
Eurodollar Rate Loan; and
(b) upon delivery of notice to the Agent on or before 10:30
A.M. three (3) Business Days' prior to the date of such Conversion or
Continuation:
(i) elect a subsequent Interest Period for all or a
portion of any Eurodollar Rate Loan to begin on the last day
of the then current Interest Period for such Eurodollar Rate
Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
No Swing Line Loan may be converted into any other type of Loan and
none of such other types of Loans may be converted into Swing Line Loans.
Each such notice shall be effective upon receipt by the Agent, shall
specify the amount of the Eurodollar Rate Loan affected and the effective date
of such Continuation or Conversion, and, if a Continuation as or Conversion into
a Eurodollar Rate Loan, the Interest Period to be applicable to the Loan as
Continued or Converted. Where telephonic notice is given, the Authorized
Representative shall provide the Agent written confirmation of each such
telephonic notice in the form of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions but failure to provide such
confirmation shall not affect the validity of such telephonic notice. Notice of
receipt of such Borrowing Notice or Interest Rate Selection Notice, as the case
may be, shall be provided by the Agent to each Lender by telefacsimile
transmission with reasonable promptness, but (provided the Agent shall have
received such notice by 10:30 A.M.) not later than 1:00 P.M. on the same day as
the Agent's receipt of such notice. All such Continuations or Conversions of
Loans shall be effected pro rata based on the Applicable Commitment Percentages
of the Lenders. Each election and conversion pursuant to this Section 4.2 shall
be subject to the limitations on Eurodollar Rate Loans set forth in Sections
2.1(a), (b) and (c).
4.3. Payment of Interest. The Borrower shall pay interest to the Agent
at the Principal Office for the account of each Lender on the outstanding and
unpaid principal amount of each Revolving Loan made by such Lender, commencing
on the first date of such Revolving Loan until such Revolving Loan shall be
repaid, at the applicable Base Rate or Eurodollar Rate as designated by the
Borrower in the related Borrowing Notice or Interest Rate Selection Notice or as
otherwise provided hereunder. Interest on each Revolving Loan shall be paid on
the earlier of (a) in the case of any Base Rate Loan, quarterly in arrears of
the last Business Day of each September, December, March or June, commencing
June 2001, until the Revolving Credit Termination Date, at which date the entire
principal amount of and all accrued interest and fees on the Revolving Loans
shall be paid in full, (b) in the case of any Eurodollar Rate Loan, on last day
of the applicable Interest Period for such Eurodollar Rate Loan and if such
Interest Period extends for more than three (3) months, at intervals of three
(3) months after the first day of such Interest Period, and (c) upon payment in
full of the related Revolving Loan; provided, however, that if any amount shall
not be paid when due (at maturity, by acceleration or otherwise) or any Event of
Default shall occur and be continuing, all amounts outstanding hereunder shall
bear interest thereafter until paid in full at the Default Rate.
4.4. Prepayments of Eurodollar Rate Loans. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
by acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by Section 5.5.
4.5. Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the
Agent at the Principal Office in Dollars in immediately available funds
without condition or deduction for any setoff, recoupment, deduction or
counterclaim on or before 2:00 P.M. on the date such payment is due.
The Agent may, but shall not be obligated to, debit the amount of such
payment, when due, from any one or more ordinary deposit accounts of
the Borrower with the Agent.
(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
2:00 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal, interest, fees or other amounts required
to be paid hereunder as to which no payment or a non-conforming payment
is made from the date such amount was due and payable until the later
of (i) the date such funds become available funds or (ii) the next
Business Day.
(c) In the event that any payment hereunder or under any of
the Notes or any other Loan Document becomes due and payable on a day
other than a Business Day, then such due date shall be extended to the
next succeeding Business Day unless provided otherwise under the
definition of "Interest Period"; provided, however, that interest and
applicable fees shall continue to accrue during the period of any such
extension; and provided further, however, that in no event shall any
such due date be extended beyond the Revolving Credit Termination Date.
4.6. Fees.
(a) Facility Fee. For the period beginning on the Closing Date
and ending on the Revolving Credit Termination Date, the Borrower
agrees to pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a facility fee (the
"Facility Fee") equal to the product of the Applicable Margin for
calculating the Facility Fee multiplied by the average daily amount of
the Total Revolving Credit Commitment. Such payments of Facility Fees
provided for in this Section 4.6(a) shall be due in arrears on the last
Business Day of each September, December, March and June commencing on
the Closing Date to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make
available in accordance with the terms of this Agreement any portion of
its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until
such Lender shall make available such portion. Each fee shall be
calculated on the basis of a year of 360 days for the actual number of
days elapsed.
(b) Letter of Credit Facility Fees. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, quarterly in arrears on the last
Business Day of each September, December, March and June, beginning on
the Closing Date, a fee per annum equal to (i) for each Standby Letter
of Credit issued after the Closing Date, the product of the aggregate
amount available to be drawn on such Standby Letter of Credit
multiplied by the Applicable Margin for Eurodollar Rate Loans, and (ii)
for each Commercial Letter of Credit issued after the Closing Date, the
greater of (1) $75.00 and (2) the product of the stated amount of such
Commercial Letter of Credit multiplied by one-tenth of one percent
(.10%) . Such fees for Standby Letters of Credit shall be calculated on
the basis of a year of 360 days for the actual number of days during
which such Letters of Credit are outstanding.
(c) Letter of Credit Fronting and Administrative Fees. The
Borrower shall pay to the Issuing Bank a fronting fee as set forth in
the Fee Letter.
(d) Additional Fees. In addition to any fees described above,
the Borrower agrees to pay to the Agent and the Issuing Bank such other
fees as may be agreed to from time to time in a separate writing or
writings.
4.7. Pro Rata Payments. Except as otherwise specified herein, (a) each
payment and prepayment on account of the principal of and interest on Loans, the
fees described in Section 4.6(a) and (b), and Reimbursement Obligations as to
which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders in the
aggregate amount payable to the Lenders pro rata based on their Applicable
Commitment Percentages, and (b) each payment of principal of and interest on the
Swing Line Loans shall be made to the Agent for the account of Bank of America.
All payments to be made by the Borrower hereunder, shall be made without set-off
or counterclaim. The Agent will promptly distribute to the Lenders in
immediately available funds payments received in fully collected, immediately
available funds from the Borrower.
4.8. Computation of Rates and Fees. Except as may be otherwise
expressly provided, (a) the Eurodollar Rate and the Default Rate and fees shall
be computed on the basis of a year of 360 days and calculated for actual days
elapsed and (b) the Base Rate shall be computed on the basis of a year of 365
(or 366 if a leap year) days and calculated for the actual number of days
elapsed.
4.9. Deficiency Advances; Failure to Purchase Participations. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall any Lender's Revolving Credit
Commitment, Letter of Credit Commitment or obligation to purchase a
Participation in Swing Line Loans be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing or the
provisions of Section 4.10, in the event any Lender shall fail to advance funds
to the Borrower as herein provided, the Agent may in its discretion, but shall
not be obligated to, advance under the applicable Note in its favor as a Lender
all or any portion of such amount or amounts (each, a "deficiency advance") and
shall thereafter be entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest rate or rates to
which such other Lender would have been entitled had it made such Advance under
its applicable Note; provided that, (i) such defaulting Lender shall not be
entitled to receive payments of principal, interest or fees with respect to such
deficiency advance until such deficiency advance (together with interest thereon
as provided in clause (ii)) shall be paid by such Lender and (ii) upon payment
to the Agent from such other Lender of the entire outstanding amount of each
such deficiency advance, together with accrued and unpaid interest thereon, from
the most recent date or dates interest was paid to the Agent by the Borrower on
each Loan comprising the deficiency advance at the Federal Funds Rate, then such
payment shall be credited against the applicable Note of the Agent in full
payment of such deficiency advance and the Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
most recent date or dates, as the case may be, upon which any payments of
interest were made by the Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Issuing Bank or
Bank of America as the Swing Line Lender, as applicable, such Lender shall pay
to the Issuing Bank or Bank of America as the Swing Line Lender, as applicable,
such amount on demand, together with interest at the Federal Funds Rate on the
amount so due from the date of such notice to the date such purchase price is
received by the Issuing Bank or Bank of America as the Swing Line Lender, as
applicable. In the event any Lender shall fail to advance funds to the Borrower
as herein provided and such failure shall continue for a period in excess of ten
(10) Business Days, then, notwithstanding the provisions of Section 2.1(e)
hereof, the Borrower may terminate such Lender's Revolving Credit Commitment by
repaying in full the amount of all principal and interest due such Lender under
such Lender's Notes and all other amounts due hereunder and providing for a
Replacement Bank.
4.10. Intraday Funding. Without limiting the provisions of Section 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor. The Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand, but without paying any amounts pursuant to Section 5.5 hereof.
The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of Section 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
ARTICLE V
Change in Circumstances
-----------------------
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans, its Note, or its obligation to
make Eurodollar Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Eurodollar Rate Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this Section
5.1(a), the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Loans
of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the
event or condition giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.4 shall be applicable);
provided that such suspension shall not affect the right of such Lender
to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any Governmental Authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section 5.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
Section 5.1 shall furnish to the Borrower and the Agent a statement
setting forth the nature of the change giving rise to the compensation
requested and the calculations, in reasonable detail, setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods.
(d) The provisions of this Section 5.1 shall continue in
effect notwithstanding the Facility Termination Date.
5.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive absent manifest error) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying
the relevant Type of Loans and the relevant amounts or periods, and so
long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of
such Type, or to Convert Loans of any other Type into Loans of such
Type and the Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Loans of the affected Type,
either prepay such Loans or Convert such Loans into another Type of
Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 5.2
or 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.2 or 5.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Converted
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall remain as
Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 5.2 or 5.3 hereof that gave
rise to the maintenance or Conversion of such Lender's Affected Loans
pursuant to this Section 5.4 no longer exist (which such Lender agrees
to do promptly upon such circumstances ceasing to exist) at a time when
Loans of the Affected Type made by other Lenders are outstanding, such
Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding
Loans of the Affected Type, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding Loans of
the Affected Type and by such Lender are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
5.5. Compensation. Upon demand of any Lender (with a copy to the Agent)
from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any actual loss, cost or expense incurred by it
as a result of:
any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan
on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan notwithstanding
satisfaction of all conditions precedent thereto) to prepay,
borrow, Continue or Convert any Eurodollar Rate Loan on the
date or in the amount notified by the Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
A determination of a Lender as to the amounts payable pursuant to this Section
5.5 shall be conclusive absent manifest error. The Lender requesting
compensation under this Section 5.5 shall furnish to an Authorized
Representative and the Agent calculations in reasonable detail setting forth
such Lender's determination of the amount of such compensation which shall be
paid within thirty (30) days of the submission of such determination.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 5.5, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Interbank Offered Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
applicable offshore Dollar interbank market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
The provisions of this Section 5.5 shall continue in effect
notwithstanding the Facility Termination Date.
5.6. Taxes.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 5.6) such Lender or the Agent, as applicable, receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and
(iv) the Borrower shall furnish to such Lender or the Agent, as
applicable, at its address referred to in Section 12.2, the original or
a certified copy of a receipt, as applicable, evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 5.6) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender shall provide the Borrower
and the Agent two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Person and entitling
it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Agent that such Person is entitled to an exemption from, or reduction
of, U.S. withholding tax. Thereafter and from time to time, each such
Person shall (a) promptly submit to the Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Agent of any available exemption
from or reduction of, United States withholding taxes in respect of all
payments to be made to such Person by the Borrower pursuant to this
Agreement, (b) promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or
reduction, and (c) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its
lending office) to avoid any requirement of applicable laws that the
Borrower make any deduction or withholding for taxes from amounts
payable to such Person. If any Governmental Authority asserts that the
Agent did not properly withhold any tax or other amount from payments
made in respect of such Person due solely to the failure of such Person
to deliver the foregoing documentation or failure to provide the
foregoing notification, such Person shall indemnify the Agent therefor,
including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this sentence,
and costs and expenses (including the reasonable fees and expenses of
counsel (including the allocated cost of internal counsel)) of the
Agent. The obligation of the Lenders under this Section shall survive
the resignation or replacement of the Agent and shall continue in
effect notwithstanding the Facility Termination Date.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to Section 5.6(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 5.6(a) or 5.6(b) with respect
to Taxes imposed by the United States; provided, however, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 5.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent or the applicable Lender
the original or a certified copy of a receipt evidencing such payment.
(h) The provisions of this Section 5.6 shall continue in
effect notwithstanding the Facility Termination Date.
5.7. Replacement Banks. In the event that any Lender (a) shall have its
obligation to make or continue, or convert other Loans into, Eurodollar Rate
Loans suspended pursuant to this Article V for a period in excess of thirty (30)
days, or (b) shall request compensation for additional costs pursuant to Section
5.1 hereof then, notwithstanding the provisions of Section 2.1(e) hereof, the
Borrower may terminate such Lender's Revolving Credit Commitment by repaying in
full the amount of all principal and interest due under such Lender's Notes and
all other amounts due hereunder and providing for a Replacement Bank.
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
--------------------------------------------------------
6.1. Conditions of Initial Advance. The effectiveness of this Agreement
and the obligation of the Lenders to make the initial Advance under the
Revolving Credit Facility, and of the Issuing Bank to issue any Letter of
Credit, and of Bank of America to make any Swing Line Loan, is subject to the
conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance reasonably satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, and the other Loan
Documents, together with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Credit Parties dated
the Closing Date, addressed to the Agent and the Lenders and
reasonably satisfactory to Smith Helms Mulliss & Moore,
L.L.P., special counsel to the Agent, substantially in the
form of Exhibit G or such other form as is accepted by Agent;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary or other appropriate officer as of the
Closing Date, approving and adopting the Loan Documents to be
executed by such Person, authorizing the execution, delivery
and performance thereof and appointing (in the case of the
Borrower) the initial Authorized Representative;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary or other appropriate official
of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Credit Parties as of a recent date by the
Secretary of State or comparable official of each jurisdiction
in which the failure to be qualified to do business or
authorized so to conduct business could have a Material
Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in Sections 9.1(a) through 9.1(d) as of
the end of the fiscal quarter most recently reported prior to
the Closing Date, substantially in the form of Exhibit H;
(xi) a certificate of an Authorized Representative of
the Borrower certifying as to the continuing effectiveness of
all policies of insurance required by the Loan Documents;
(xii) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xiii) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full, including the due diligence expenses of the
Agent and the reasonable fees and expenses of counsel for the
Agent to the extent invoiced prior to or on the Closing Date
(which may include amounts constituting reasonable estimates
of such fees and expenses incurred or to be incurred in
connection with the transaction; provided that no such
estimate shall thereafter preclude the final settling of
accounts as to such fees and expenses);
(xiv) a certificate of the Treasurer of the Borrower
as to the matters described in Section 6.1(b)(i) through
(iii);
(xv) repayment in full of all amounts outstanding
under, and termination of, the Existing Senior Credit
Facility; and
(xvi) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any information, event, condition,
situation or status since February 24, 2001 concerning the
Credit Parties prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) Except as set forth in the Borrower's Form 10-K
filed with the Securities and Exchange Commission for the
Borrower's Fiscal Year ended February 24, 2001, no litigation,
action, suit, investigation or other arbitral, administrative
or judicial proceeding shall be pending or threatened in
writing which could reasonably be likely to result in a
Material Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound, except for such approvals, consents, waivers,
filings and notices for which the non-receipt, making or
giving of which will not have a Material Adverse Effect.
6.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Advances and the Issuing Bank to issue
(or renew) Letters of Credit and Bank of America to make Swing Line Loans,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, Bank of
America shall have received a Borrowing Notice as required by Article
II and the Lenders have received notice of receipt of such notice of
borrowing or request pursuant to Section 2.1(c)(i) hereof;
(b) the representations and warranties of the Credit Parties
set forth in Article VII and in each of the other Loan Documents shall
be true and correct on and as of the date of such Advance, Swing Line
Loan or Letter of Credit issuance or renewal, with the same effect as
though such representations and warranties had been made on and as of
such date, except (i) to the extent that such representations and
warranties expressly relate to an earlier date, (ii) that the
representations and warranties set forth in Sections 7.4 and 7.6 hereof
shall be deemed to include and take into account any merger or
consolidation permitted under Section 9.6 hereof, and (iii) that the
financial statements referred to in Section 7.6(a) shall be deemed to
be those financial statements most recently delivered to the Agent and
the Lenders pursuant to Section 8.1;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
reasonably acceptable to the Issuing Bank together with such other
instruments and documents as it shall reasonably request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance or renewal of a Letter of Credit, no
Default or Event of Default specified in Article X shall have occurred
and be continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, a Swing Line Loan or a Letter
of Credit or renewal thereof, (1) the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment and (2) each Lender's Applicable Commitment
Percentage of Revolving Loans and Participations shall not
exceed its Revolving Credit Commitment; and
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations of the Lenders in Letters of
Credit and Reimbursement Obligations) for each Lender and in
the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment.
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $25,000,000; and
ARTICLE VII
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself, the Parent and to
its Subsidiaries (which representations and warranties shall survive the
delivery of the documents mentioned herein and the making of Loans and issuance
of Letters of Credit), that:
7.1. Organization and Authority.
(a) Each Credit Party is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation;
(b) Each Credit Party (x) has the requisite power and
authority to own its properties and assets and to carry on its business
as now being conducted and as contemplated in the Loan Documents, and
(y) is qualified to do business and in good standing in every
jurisdiction in which failure to be so qualified or in good standing
could reasonably be expected to have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow and
request issuance of Letters of Credit hereunder, and to execute,
deliver and perform each of the other Loan Documents to which it is a
party;
(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform the applicable Facility
Guaranty and each of the other Loan Documents to which it is a party;
and
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity which may limit the availability of
equitable remedies (whether considered in a proceeding at law or in
equity).
7.2. Loan Documents. The execution, delivery and performance by each
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate the Organizational Documents or Operating
Documents of such Credit Party and do not violate in a manner that
would reasonably be likely to have a Material Adverse Effect any
provisions of (i) any applicable law, rule or regulation, or (ii) any
judgment, writ, order, determination, decree or arbitral award of any
Governmental Authority or arbitral authority binding on such Credit
Party or its properties, or;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default
in a manner that would reasonably be likely to have a Material Adverse
Effect under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any material Lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of such Credit Party or any
Subsidiary except any Liens in favor of the Agent and the Lenders
created by the Loan Documents.
7.3. Solvency. Each Credit Party is Solvent after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents.
7.4. Material Subsidiaries and Stockholders. The Borrower has no
Material Subsidiaries other than those Persons listed as Material Subsidiaries
in Schedule 7.4 and additional Subsidiaries created or acquired after the
Closing Date in compliance with Section 8.19; Schedule 7.4 states as of the date
hereof the correct name of each Material Subsidiary, the jurisdiction of
organization of each Material Subsidiary, the organizational form of each
entity, the authorized and issued capitalization of each Subsidiary listed
thereon, the number of shares or other equity interests of each class of capital
stock or interest issued and outstanding of each such Material Subsidiary and
the number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by the Borrower; the
outstanding shares or other equity interests of each Material Subsidiary have
been duly authorized and validly issued and are fully paid and nonassessable;
and Borrower owns beneficially and of record all the issued and outstanding
shares of capital stock or equity interests of each Material Subsidiary owned by
it, free and clear of any Lien.
7.5. Intentionally Omitted.
7.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Parent, the Borrower and its
Subsidiaries as at February 24, 2001 and the notes thereto and the
related consolidated statements of operations, cash flows, and
stockholders' equity for the Fiscal Year then ended as examined and
certified by Ernst & Young. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial
condition and results of operations of the Parent, the Borrower and its
Subsidiaries as of the end of and for such Fiscal Year, all in
conformity with GAAP applied on a Consistent Basis;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 7.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 8.1(a) hereof, there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to have a
Material Adverse Effect, nor have the businesses, properties or
operations of the Parent, the Borrower and its Subsidiaries, considered
as a whole, been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo or act of God; and
(c) except as set forth in Schedule 7.6 or the Borrower's Form
10-K filed with the Securities and Exchange Commission for the
Borrower's Fiscal Year ended February 24, 2001, neither the Parent, the
Borrower nor any Subsidiary has incurred, other than in the ordinary
course of business, any material Indebtedness. Neither the Parent, the
Borrower 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 the Parent, the Borrower or such Subsidiary and no
event or condition exists with respect to any Indebtedness of the
Parent, the Borrower or any Subsidiary the outstanding principal amount
of which exceeds $30,000,000 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.
7.7. Title to Properties. The Borrower and each of its Material
Subsidiaries and each other Credit Party has title to all its material real and
personal properties, which is not subject to any transfer restrictions or Liens
of any kind, except (i) for the transfer restrictions and Liens described in
Schedule 7.7, (ii) for Liens permitted by Section 9.2, and (iii) where a failure
to have such title would not reasonably be likely to have a Material Adverse
Effect. All material leases that the Borrower is a party to as lessee are (as
against the Borrower and, to the best knowledge of the Borrower, as against the
lessor thereunder) valid and subsisting and are in full force and effect in all
material respects.
7.8. Taxes. Except as set forth in Schedule 7.8, the Borrower and each
of its Subsidiaries and each other Credit Party has filed or caused to be filed
or caused to be properly extended all federal, state, local and foreign tax
returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 7.6(a) or Sections 8.1(a) or (b) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all material taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become and remain
due and before they have become delinquent. The federal income tax liability of
the Borrower and its Subsidiaries has been determined by the Internal Revenue
Service and paid for all Fiscal Years up to and including the Fiscal Year ended
February 25, 1995.
7.9. Other Agreements. No Credit Party is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party is a party, which
default has, or if not remedied within any applicable grace period
could reasonably be likely to have, a Material Adverse Effect.
7.10. Litigation. Except as set forth in the Borrower's Form 10-K filed
with the Securities and Exchange Commission for the Borrower's Fiscal Year ended
February 24, 2001, there is no action, suit, investigation or proceeding at law
or in equity or by or before any Governmental Authority or arbitral body
pending, or, to the knowledge of the Borrower, threatened by or against any
Credit Party or affecting any Credit Party or any properties or rights of a
Credit Party, which could reasonably be likely to have a Material Adverse
Effect.
7.11. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the Board. Neither the Borrower, the Parent nor any other Credit Party
nor any agent acting on their respective behalf has taken or will take any
action which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof.
7.12. Regulated Company. No Credit Party is (i) an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.) or (ii) a
"holding company" or a "subsidiary company" or "affiliate" of a "holding
company" as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. The Letters of Credit and application of the proceeds of the
Loans and repayment thereof by the Borrower and the performance by the Borrower
and the other Credit Parties of the transactions contemplated by the Loan
Documents will not violate any provision of the foregoing acts, or any rule,
regulation or order issued by the Securities and Exchange Commission thereunder,
in each case as in effect on the date hereof.
7.13. Patents, Etc. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights, or rights thereto, that are material or
necessary to the business, operations, affairs, financial condition, assets or
properties of the Parent or the Borrower or its Subsidiaries taken as a whole,
as now conducted and as contemplated by the Loan Documents, without known
conflict with any patent, license, franchise, trademark, trade secret, trade
name, copyright, other proprietary right of any other Person, except for those
conflicts that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
7.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent or the Lenders in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading in any material respect.
7.15. No Consents, Etc. Neither the respective businesses or properties
of the Parent, the Borrower or any of its Subsidiaries, nor any relationship
between the Parent, the Borrower and any of its Subsidiaries and any other
Person, nor any circumstance in connection with the execution, delivery and
performance of the Loan Documents and the transactions contemplated thereby, is
such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or other
authority or any other Person on the part of the Parent, the Borrower or any of
its Subsidiaries as a condition to the execution, delivery and performance of,
or consummation of the transactions contemplated by this Agreement or the other
Loan Documents, which, if not obtained or effected, would be reasonably likely
to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be.
7.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan (other than routine claims for benefits).
7.17. No Default. As of the date hereof, to the knowledge of each
Authorized Representative, there does not exist any Default or Event of Default.
7.18. Environmental Laws. Except as listed on Schedule 7.18, the
Borrower and each Subsidiary and each other Credit Party is in compliance with
all applicable Environmental Laws and has been issued and currently maintains
all required federal, state and local permits, licenses, certificates and
approvals except to the extent non-compliance could reasonably be expected to
have a Material Adverse Effect. Except as listed on Schedule 7.18, neither the
Borrower nor any Subsidiary nor any other Credit Party has been notified of any
pending or threatened action, suit, proceeding or investigation, and neither the
Borrower nor any Subsidiary nor any other Credit Party is aware of any facts,
which (a) calls into question, or could reasonably be expected to call into
question, compliance by the Borrower or any Subsidiary or any other Credit Party
with any Environmental Laws which non-compliance could reasonably be expected to
have a Material Adverse Effect, (b) seeks, or could reasonably be expected to
form the basis of a meritorious proceeding, to suspend, revoke or terminate any
license, permit or approval necessary for the operation of the Borrower's or any
Subsidiary's or any other Credit Party's business or facilities or for the
generation, handling, storage, treatment or disposal of any Hazardous Materials
which suspension, revocation or termination could reasonably be expected to have
a Material Adverse Effect, or (c) seeks to cause, or could reasonably be
expected to form the basis of a meritorious proceeding to cause, any property of
the Borrower or any Subsidiary or other Credit Party to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law which restrictions could reasonably be expected to have a
Material Adverse Effect.
7.19. Employment Matters. Except to the extent a failure to maintain
compliance would not have a Material Adverse Effect or except as disclosed on
the Borrower's Form 10-K filed with the Securities and Exchange Commission for
the Borrower's Fiscal Year ended February 24, 2001, the Borrower and each
Subsidiary and each other Credit Party is in compliance in all material respects
with all applicable laws, rules and regulations pertaining to labor or
employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation, and there is neither pending nor, to
the knowledge of the Borrower, threatened any litigation, administrative
proceeding or investigation, in respect of such matters which, if decided
adversely, could reasonably be likely, individually or in the aggregate, to have
a Material Adverse Effect.
7.20. RICO. Neither the Borrower nor any Material Subsidiary nor any
other Credit Party is engaged in or has engaged in any course of conduct that
could reasonably be expected to subject any of their respective properties to
any Lien, seizure or other forfeiture under any criminal law, racketeer
influenced and corrupt organizations law, civil or criminal, or other similar
laws.
7.21. Foreign Assets Control Regulations, etc. Neither the Indebtedness
incurred by the Borrower hereunder nor the Borrower'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.
ARTICLE VIII
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall otherwise
consent in writing, the Borrower will, and where applicable, will cause each
other Credit Party to:
8.1. Financial Reports, Etc. (a) As soon as practical and in any event
within 95 days after the end of each Fiscal Year of the Parent, deliver or cause
to be delivered to the Agent and each Lender (i) consolidated balance sheets of
the Parent, the Borrower and its Subsidiaries as at the end of such Fiscal Year,
and the notes thereto, and the related consolidated statements of operations,
stockholders' equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth comparative financial statements for and as of the
end of the preceding Fiscal Year, all prepared in accordance with GAAP applied
on a Consistent Basis and containing opinions of Ernst & Young, or other such
independent certified public accountants selected by the Borrower and of similar
nature, which are unqualified as to the scope of the audit performed and as to
the "going concern" status of the Parent and its Subsidiaries and without any
exception not reasonably acceptable to the Required Lenders, and (ii) a
certificate of an Authorized Representative who also is an officer of the Parent
as to the absence of any Default or Event of Default and demonstrating
compliance with Section 9.1, which certificate shall be in the form of Exhibit
H;
(b) as soon as practical and in any event within 50 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated balance sheets of the
Parent, the Borrower and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated statements of operations and stockholders' equity
for such fiscal quarter and statements of cash flow for the period from the
beginning of the then current Fiscal Year through the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding periods from the preceding Fiscal Year and accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Parent, the Borrower and
its Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, prepared in conformity with GAAP applied on a Consistent Basis, without
notes and subject to year-end audit adjustments, and (ii) a certificate of an
Authorized Representative as to the absence of any Default or Event of Default
and containing computations for such quarter comparable to that required
pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in Section 8.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under Section 8.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); or if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which the Parent, the
Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, and (ii) any
proxy statement distributed by the Parent, the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general, all such
reports and statements to be delivered without exhibits unless otherwise
reasonably requested by the Agent;
(e) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs, assets, properties and financial
condition as the Agent or such Lender may reasonably request.
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial information delivered hereunder to the Lenders (or the parent
of any Lender or a wholly-owned subsidiary of the parent of any Lender) or to
the Agent, to any regulatory authority having jurisdiction over the Agent or any
of the Lenders pursuant to any written request therefor, or, subject to Section
12.1(d) hereof, to any other Person who shall acquire or consider the
acquisition of a participation interest in or assignment of any Loan or Letter
of Credit permitted by this Agreement or as otherwise permitted pursuant to
Section 12.14 hereof.
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted), make all needed repairs, replacements and renewals to such
properties, and preserve, protect and maintain free from Liens (other than Liens
permitted under Section 9.2 hereof) all material trademarks, trade names,
patents, copyrights, trade secrets, know-how, and other intellectual property
and proprietary information (or adequate licenses thereto), in each case as are
necessary or useful to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices.
8.3. Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect (a) its existence and
(b) all material rights, franchises and permits, except to the extent terminated
or conveyed in connection with a transaction permitted under Section 9.4 or 9.6,
and maintain its license or qualification to do business as a foreign
corporation and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary and where the failure to be so licensed or qualified
would be reasonably likely to have a Material Adverse Effect.
8.4. Regulations and Taxes. File all income tax or similar returns
required to be filed in any jurisdiction and comply with all statutes and
governmental regulations and pay all taxes, assessments, governmental charges,
claims for labor, supplies, rent and any other obligation before they become
delinquent which, if unpaid, might become a Lien against any of its material
properties, except liabilities being contested in good faith by appropriate
proceedings diligently conducted provided that adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP.
8.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated,
(b) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and (c) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes), such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similarly situated entities of established
reputation engaged in the same or similar lines of business and such insurance
policies to be in form reasonably satisfactory to the Agent. The Borrower shall
use its best efforts to ensure that each of the policies of insurance described
in this Section 8.5 providing material coverage and policy limits to the
Borrower and its Subsidiaries on a consolidated basis will provide that the
insurer shall give the Agent not less than thirty (30) days' prior written
notice before any such policy shall terminate, lapse, be cancelled or be
materially amended.
8.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions in
accordance with customary business practices, and set up on its books such
reserves as may be required by GAAP with respect to doubtful accounts and all
taxes, assessments, charges, levies and claims and with respect to its business
in general, and include such reserves in interim as well as year-end financial
statements.
8.7. Right of Inspection. Permit any Person designated by the Agent, at
the Agent's expense (unless a Default or Event or Default shall exist, then at
the Borrower's expense), to visit and inspect any of the properties, corporate
books and financial reports of the Parent, the Borrower or any of its
Subsidiaries and to discuss its or their affairs, finances and accounts with its
or their principal officers and independent certified public accountants, all at
such reasonable times and as often as the Agent may reasonably request.
8.8. Observe all Laws. Conform to and duly observe all laws (including,
without limitation, Environmental Laws), rules and regulations and all other
valid requirements of any Governmental Authority with respect to the conduct of
its business and obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the
ownership of its properties or the conduct of its business, except to the extent
that non-compliance with such requirements or failure to obtain or maintain such
governmental authorizations could not reasonably be expected to have a Material
Adverse Effect.
8.9. Pay Indebtedness to Lenders and Perform Other Covenants. Make full
and timely payment of the principal of and interest on the Notes and all other
Obligations, whether now existing or hereafter arising.
8.10. Covenants Extending to Other Persons. Cause each of its Material
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.9, inclusive.
8.11. Officer's Knowledge of Default. Upon any Authorized
Representative obtaining knowledge of any Default or Event of Default or any
default under any other material obligation of the Parent, the Borrower or any
Subsidiary, or any event, development or occurrence which would have a Material
Adverse Effect, cause such officer or an Authorized Representative to promptly
deliver to the Agent written notice thereof, the period of existence thereof,
and what action the Borrower proposes to take with respect thereto.
8.12. Suits or Other Proceedings. Upon any Authorized Representative
obtaining knowledge of any litigation or other proceedings (including, without
limitation, any environmental proceedings) being instituted against the Parent,
the Borrower or any Subsidiary or otherwise questioning the validity or
enforceability of, or the ability of any Credit Party to enter into or perform
under, the Loan Documents, or any attachment, levy, execution or other process
being instituted against any assets of the Borrower or any Subsidiary, making a
claim or claims in an aggregate stated amount greater than $25,000,000 not
otherwise covered by insurance, promptly deliver to the Agent written notice
thereof stating the nature and status of such litigation, dispute, proceeding,
levy, execution or other process.
8.13. Notice of Environmental Complaint or Condition. Promptly provide
to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Subsidiary relating to any material (a) violation or alleged violation by
the Parent, the Borrower or any Subsidiary of any applicable Environmental Law;
(b) release or threatened release by the Borrower or any Subsidiary, or by any
Person handling, transporting or disposing of any Hazardous Material on behalf
of the Borrower or any Subsidiary, or at any facility or property owned or
leased or operated by the Borrower or any Subsidiary, of any Hazardous Material,
except where occurring legally pursuant to a permit or license; or (c) liability
or alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
8.14. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any applicable
Environmental Laws which could reasonably be likely to have a Material Adverse
Effect, promptly deliver a copy of such notice to the Agent and use their
reasonable best efforts to remove or remedy, or cause the applicable Subsidiary
to remove or remedy, such violation or release or satisfy such liability within
a reasonable time.
8.15. Indemnification. Without limiting the generality of Section 12.9,
the Borrower hereby agrees to defend, indemnify and hold the Agent and the
Lenders, and any affiliate of any Lender party to a Swap Agreement, and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys' fees, expenses
and disbursements) arising directly or indirectly from, out of or by reason of
(a) the violation of any Environmental Law by the Borrower or any Subsidiary or
with respect to any property owned, operated or leased by the Borrower or any
Subsidiary or (b) the handling, storage, transportation, treatment, emission,
release, discharge or disposal of any Hazardous Materials by or on behalf of the
Borrower or any Subsidiary, or on or with respect to property owned or leased or
operated by the Borrower or any Subsidiary. The provisions of this Section 8.15
shall continue in effect notwithstanding the Facility Termination Date.
8.16. Further Assurances. At the Borrower's reasonable cost and
expense, upon request of the Agent or the Lenders, duly execute and deliver or
cause to be duly executed and delivered, to the Agent such further instruments,
documents, certificates, agreements and financing and continuation statements,
and do and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Agent or the Lenders to carry out
more effectively the provisions and purposes of this Agreement and the other
Loan Documents.
8.17. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) each funding waiver
request filed with respect to any Pension Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to
such request and (b) the failure of the Borrower or any ERISA Affiliate
to make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in
the case of Employee Benefit Plans regulated by any Foreign Benefit
Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature
thereof, what action the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Agent in writing within five (5) Business Days of the
Borrower or any ERISA Affiliate obtaining knowledge or reason to know
that the Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
8.18. Intentionally Omitted.
8.19. New Subsidiaries. Promptly, but no later than twenty-one (21)
days after (a) the acquisition or creation of any Subsidiary which would have
been a Material Domestic Subsidiary if included in the Borrower's consolidated
financial statements for the fiscal year then most recently ended, or (b) any
previously existing Person becomes a Material Domestic Subsidiary as reflected
in the then most recent financial statements delivered pursuant to Section 8.1
hereof, cause to be delivered to the Agent for the benefit of the Lenders each
of the following:
(a) a Facility Guaranty executed by such Material Domestic
Subsidiary substantially in the form of Exhibit I, with appropriate
insertions of identifying information and such other changes to which
the Agent may consent in its discretion;
(b) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty provided for in this Section
8.19 and addressed to the Agent and the Lenders, in form and substance
reasonably acceptable to the Agent (which opinion may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel delivered pursuant to Section 6.1(a)), to the
effect that:
(i) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted and to execute, deliver
and perform the Facility Guaranty described in this Section
8.19 to which such Subsidiary is a signatory, and is duly
qualified to transact business and is in good standing as a
foreign corporation or partnership in each other jurisdiction
in which the character of the properties owned or leased, or
the business carried on by it, requires such qualification and
the failure to be so qualified would reasonably be likely to
result in a Material Adverse Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty described in this Section 8.19 to which such
Subsidiary is a signatory have been duly authorized by all
requisite corporate or partnership action (including any
required shareholder or partner approval), such agreement has
been duly executed and delivered and constitutes the valid and
binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms, subject to the effect
of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in
a proceeding at law or in equity);
(c) current copies of the Organizational Documents and
Operating Documents of such Material Domestic Subsidiary, minutes of
duly called and conducted meetings (or duly effected consent actions)
of the Board of Directors, partners, or appropriate committees thereof
(and, if required by such Organizational Documents, Operating Documents
or applicable law, of the shareholders) of such Subsidiary authorizing
the actions and the execution and delivery of documents described in
this Section 8.19.
8.20. Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.2 hereof.
ARTICLE IX
Negative Covenants
------------------
Until the Facility Termination Date, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, nor will it permit any Material
Subsidiary or the Parent to:
9.1. Financial Covenants.
(a) Consolidated Shareholders' Equity. Permit Consolidated
Shareholders' Equity to be less than (i) $175,000,000 from the Closing Date
until (but excluding) the last day of the second fiscal quarter of the current
Fiscal Year (the "Closing Date Quarter"), and (ii) as at the last day of each
fiscal quarter of the Borrower commencing with the third quarter of the current
Fiscal Year until (but excluding) the last day of the next following fiscal
quarter of the Borrower, the sum of (A) the amount of Consolidated Shareholders'
Equity required to be maintained pursuant to this Section 9.1(a) as at the end
of the immediately preceding fiscal quarter (or, in the case of the Closing Date
Quarter, required to be maintained as of the Closing Date), plus (B) 50% of
Consolidated Net Income (with no reduction for net losses during any period) for
the fiscal quarter of the Borrower ending on such day, plus (C) 100% of the
aggregate amount of all increases in the stated capital and additional paid-in
capital accounts of the Borrower resulting from the issuance, sale or exchange
of equity securities or other capital investments. Any increase calculated
pursuant hereto shall be determined based upon financial statements delivered in
accordance with Section 8.1(a) hereof; provided, however, such increase shall be
deemed effective as of the first day of the Fiscal Year in which such financial
statements are delivered.
(b) Consolidated Total Debt Ratio. Permit the Consolidated Total Debt
Ratio as of the end of any Four-Quarter Period to be greater than 2.25 to 1.00.
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any Four-Quarter Period to be less than
5.00 to 1.00.
(d) Total Subsidiary Indebtedness. Permit at any time the aggregate
amount of Indebtedness of the Borrower's Subsidiaries (other than endorsements
of negotiable instruments for deposit or collection or similar transaction in
the ordinary course of business) to be greater than the lesser of (i)
$50,000,000 and (ii) 33% of Consolidated EBITDA for the Four-Quarter Period
ending on (or most recently prior to) the date of calculation thereof.
9.2. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, including without
limitation any capital stock of the Borrower or any of its Subsidiaries, other
than
(a) Liens created in favor of the Agent and the Lenders, or
otherwise existing as of the date hereof and as set forth in Schedule
7.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and for amounts not yet due
or which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Borrower or any Material Subsidiary and which do not materially
detract from the value of the property to which they attach or
materially impair the use thereof to the Borrower or any Material
Subsidiary;
(f) Liens on assets of the Borrower or any of its Subsidiaries
and on the capital stock of any of its Subsidiaries, provided the
aggregate fair market value (as reasonably determined by the Borrower)
of all assets and such capital stock subject to such pledges shall not
exceed $25,000,000;
(g) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), contracts with respect to
the Core Business, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, and
rights of usufruct and similar rights to continued use and possession
of lottery equipment or other property in favor of lottery authorities,
in each case incurred in the ordinary course of business;
(h) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, including any items of equipment acquired after the date
hereof, and refinancings thereof, provided that (i) such Liens shall
attach concurrently with or within 30 days of the acquisition of such
fixed or capital assets or items of equipment, (ii) such Liens do not
at any time encumber any property other than the property financed by
such Indebtedness, (iii) the amount of Indebtedness secured thereby is
not increased and (iv) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 100% of the original purchase
price of such property at the time it was acquired;
(i) Liens arising as a result of the use of commercial letters
of credit to finance the purchase price of goods in the ordinary course
of business in transactions not otherwise prohibited hereunder in favor
of the bank issuing such commercial letter of credit and attaching only
on such goods so financed; and
(j) Liens arising out of judgments or awards in respect of
which the Parent, the Borrower or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review and in respect
of which it shall have secured a subsisting stay of execution pending
such appeal or proceedings for review, provided that it shall have set
aside on its books adequate reserves, to the extent required by GAAP
applied on a Consistent Basis, with respect to such judgment or award.
9.3. Guaranties. Incur, create, or assume any guaranties of
non-consolidated Indebtedness in an aggregate principal amount in excess of
$50,000,000.
9.4. Disposition of Assets. The Borrower will not, and will not permit
any Guarantor 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 Borrower ended immediately prior to the
Disposition Date. Any Disposition of shares of stock of any Subsidiary shall,
for purposes of this Section, be valued at an amount that bears the same
proportion to the book value of the total assets of such Subsidiary as the
number of such shares bears to the total number of issued and outstanding shares
of stock of such Subsidiary. Notwithstanding the foregoing, the following
Dispositions shall not be taken into account under this Section 9.4:
(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 Parent or to a wholly-owned
Material Domestic 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
Consolidated Total Indebtedness (and any associated premium) of the
Borrower or such Guarantor or (y) the acquisition of assets (other than
current assets) to be used in the ordinary course of business of the
Borrower or such Guarantor.
9.5. Investments; Acquisitions. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets of, or make investments in or permit to exist
any interest whatsoever in, any other Person or permit to exist any loans or
advances to, or Capital Expenditures with respect to, any Person, except that
Borrower and its Subsidiaries may maintain investments or invest in
(a) Eligible Securities;
(b) other securities for which the aggregate purchase price or
initial investment for all such securities does not exceed $10,000,000;
(c) investments existing as of the date hereof and either
disclosed on the financial statements of the Parent, the Borrower and
its Subsidiaries referred to in Section 7.6 hereof or individually and
in the aggregate not required to be disclosed in such financial
statements or the notes thereto;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) key man life insurance with respect to its executive
officers;
(f) investments in, advances to or Capital Expenditures with
respect to any Person other than those Persons described in clauses
(a), (b), (c), (d), (e), (g), (h), (i), (j) and (k) hereof in an
aggregate Investment Commitment at any time not to exceed $150,000,000;
provided that no single or series of related investments, advances or
Capital Expenditures permitted under this Section 9.5(f) shall exceed
at any time an Investment Commitment of $75,000,000;
(g) investments in, advances to or Capital Expenditures with
respect to the Borrower or any Subsidiary engaged in the Core Business
and loans or advances by the Passive Investment Company to the Borrower
or any Guarantor in connection with the Core Business;
(h) loans and advances to officers, directors and employees of
the Borrower or its Subsidiaries for travel, entertainment and
relocation expenses and other business purposes, all in the ordinary
course of business;
(i) investments of the Borrower under any agreement creating
Rate Hedging Obligations;
(j) investments representing stock or obligations issued to
the Parent, the Borrower or any of its Subsidiaries in settlement of
claims against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Parent or
such Subsidiary; and
(k) other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $5,000,000.
9.6. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to consolidate with or merge into
it, provided, however, so long as no Default or Event of Default exists at the
time of or would result therefrom (i) any Subsidiary may merge or transfer all
or substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Subsidiary, and (ii) any Person may merge with the Borrower if the
Borrower shall be the survivor thereof; provided, however, notwithstanding the
foregoing, no Material Domestic Subsidiary may consolidate with or merge into
any Subsidiary unless such Material Domestic Subsidiary is the survivor of such
consolidation or merger or the Subsidiary is also a Material Domestic Subsidiary
and no Default or Event of Default shall exist after giving effect to such
merger or consolidation.
9.7. Dividends, Redemptions and Other Payments. If (a) any Default or
Event of Default shall exist under Sections 9.1 (a), (b) or (c) hereof or a
Default or Event of Default under any such section would be created by the
declaration or payment of cash dividends or any other payment or distribution of
cash on account of its capital stock or the purchase, redemption or other
retirement of its capital stock, or (b) an Event of Default has occurred and is
continuing, declare or pay any cash dividends or make any other payment or
distribution of cash on any shares of stock of any class of the Borrower, now or
hereafter outstanding, or purchase, redeem or otherwise retire any such shares
in consideration of cash or apply or set apart any of their assets therefor or
make any other distribution (by redemption of capital or otherwise) in respect
of any such shares in consideration of cash, or agree to do any of the
foregoing.
9.8. Transactions with Affiliates. Enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate (other than a Guarantor), except (a) that such Persons may render
services to the Borrower or its Subsidiaries for compensation at the same rates
generally paid by Persons engaged in the same or similar businesses for the same
or similar services and (b) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's (or any Subsidiary's) business
consistent with past practice of the Borrower and its Subsidiaries and upon fair
and reasonable terms no less favorable to the Borrower (or any Subsidiary) than
would be obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
9.9. Benefit Plans. With respect to all Employee Benefit Plans
maintained by the Borrower or any ERISA Affiliate:
(a) terminate any of such Employee Benefit Plans so as to
incur any liability to the PBGC established pursuant to ERISA or to any
other Person exercising similar duties and functions under any Foreign
Benefit Law where such termination would be reasonably likely to have
or would have a Material Adverse Effect;
(b) engage in any non-exempt prohibited transaction involving
any of such Employee Benefit Plans or any trust created thereunder
which would subject the Borrower or an ERISA Affiliate to a tax or
penalty or other liability on prohibited transactions imposed under
Code Section 4975 or ERISA or under any Foreign Benefit Law;
(c) fail to pay to any such Employee Benefit Plan any
contribution which it is obligated to pay under the terms of such plan;
(d) allow or suffer to exist any accumulated funding
deficiency, whether or not waived, with respect to any such Employee
Benefit Plan;
(e) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the PBGC, or to any other Person exercising similar
duties and functions under any Foreign Benefit Law, of any such
Employee Benefit Plan that is a Single Employer Plan, which termination
could result in any liability to the PBGC or under any Foreign Benefit
Law; or
(f) incur any withdrawal liability with respect to any
Multiemployer Plan which would be reasonably likely to have or would
have a Material Adverse Effect.
9.10. Fiscal Year. Change its Fiscal Year without the consent of the
Required Lenders, which consent shall not be unreasonably withheld or delayed;
provided, however, that each of the Lenders agrees that if an amendment to this
Agreement is required solely to make adjustments to the financial covenants in
Section 9.1 hereof as a result of such change in Fiscal Year, no fees shall be
charged to the Borrower for such amendment.
9.11. Dissolution, Etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with (a) the merger or
consolidation of Material Subsidiaries into each other or into the Borrower as
permitted pursuant to Section 9.6 hereof and (b) the declaration of bankruptcy,
liquidation and dissolution of Subsidiaries which are not Material Subsidiaries.
9.12. Limitations on Sales and Leasebacks. Enter into any Sale and
Leaseback Transaction as lessee unless:
(a) such Sale and Leaseback Transaction is between such
Material Subsidiary and the Borrower or the Parent, between such
Material Subsidiary and any wholly-owned Material Subsidiary or between
the Borrower or the Parent and any wholly-owned Material Subsidiary;
(b) the proceeds received by the Borrower or such Material
Subsidiary from such Sale and Leaseback Transaction as lessee are
applied within 180 days of the date of such transaction to (x) the
prepayment of Consolidated Total Indebtedness (and any associated
premium) of the Borrower or such Material Subsidiary or (y) the
acquisition of assets (other than current assets) to be used in the
ordinary course of business of the Borrower or such Material
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.
9.13. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
9.14. Transactive Corporation. Permit Transactive Corporation to have
(a) total assets equal to or greater than 5% of Consolidated Assets at any time
or (b) profits equal to or greater than 5% of Consolidated Total Profits Before
Tax at any time unless Transactive Corporation shall have been designated a
Material Subsidiary hereunder (notwithstanding the exclusion contained in the
definition thereof) by the Borrower and shall have provided to the Agent all
Loan Documents required of a Material Subsidiary hereunder.
9.15. Synthetic Lease Obligations. Create, incur or permit to exist at
any time Synthetic Lease Obligations in an aggregate amount in excess of
$50,000,000.
ARTICLE X
Events of Default and Acceleration
----------------------------------
10.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III or Article IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation and such amount remains unpaid for five (5) or more
days or of any fees or other amounts payable to the Lenders, the Agent
or the Issuing Bank under the Loan Documents on the date on which the
same shall be due and payable and such amounts remain unpaid for thirty
(30) or more days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 8.3(a), 8.11, 8.12, 8.20 or
Sections 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, 9.11, 9.12 or 9.13; or
(d) if a default shall be made in the performance or
observance of, or shall occur under any covenant, agreement or
provision contained in this Agreement, any Facility Guaranty, the Notes
or any other Loan Documents (other than as described in clauses (a),
(b) or (c) above) and such default shall continue (i) for thirty (30)
or more days after the receipt of notice of such default by the
Authorized Representative from the Agent or any Lender or (ii) for
forty-five (45) days after an Authorized Representative becomes aware
of such default, or if such default is of a type that cannot be cured
within thirty (30) days or forty-five (45) days, as applicable (but
reasonably can be cured within ninety (90) days), and the Parent, the
Borrower or any of its Subsidiaries is diligently and in good faith
attempting to cure such default, such default shall continue unremedied
for a period of ninety (90) or more days after such notice or
awareness, or if an Event of Default shall occur under any of the other
Loan Documents or in any instrument or document evidencing or creating
any obligation, guaranty, or Lien in favor of the Agent or the Lenders
or delivered to the Agent or the Lenders in connection with or pursuant
to this Agreement or any of the Obligations, or if any material
provision of any Loan Document ceases to be in full force and effect
(other than by reason of termination by the Agent), or if without the
written consent of the Agent, any material provision of this Agreement
or any other Loan Document shall be disaffirmed, or the validity,
binding nature or enforceability thereof shall be contested by the
Borrower, the Parent or any Guarantor, or this Agreement or any other
Loan Document shall terminate, be terminable or be terminated or become
void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of
termination by the Agent or any Lender); or
(e) if a default (whether as principal or as guarantor or
other surety) shall occur, which is not waived and as to which any
applicable grace period has expired, (i) in the payment of any
principal, interest, premium or other amounts with respect to any
Indebtedness (other than the Obligations) of the Borrower or of any
Subsidiary in an amount not less than $30,000,000 in the aggregate
outstanding, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and
if such default shall permit the holder of any such Indebtedness to
accelerate the maturity thereof or (iii) under the Note Agreement or
the notes thereunder (as defined in the Note Agreement); or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given or made or deemed given
or made; or
(g) if the Borrower, the Parent or any Material Subsidiary
shall (i) fail to pay, admit in writing its inability to pay or be
unable to pay its debts generally as they become due, (ii) file, or
consent 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 insolvency,
reorganization, bankruptcy, receivership or similar law, domestic or
foreign; make an assignment for the benefit of its creditors; (iii)
commence a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any substantial
part of its property; (iv) file a petition or answer seeking
reorganization or arrangement or similar relief under the Federal
bankruptcy laws or any other applicable Federal, state or foreign law
or statute; (v) be adjudicated as insolvent or to be liquidated or (vi)
take any corporate action for the purpose of any of the foregoing; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree ordering the dissolution, winding-up or liquidation
of, or appointing a custodian, receiver, trustee, liquidator or
conservator of, the Borrower, the Parent or any Material Subsidiary or
of the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower, the
Parent or any Material Subsidiary seeking reorganization or arrangement
or similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
or foreign country, province or other political subdivision, which
petition is not dismissed within sixty (60) days; or if, under the
provisions of any other law for the relief or aid of debtors, a court
of competent jurisdiction shall assume custody or control of the
Borrower, the Parent or any Material Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower,
the Parent or any Material Subsidiary any proceeding or petition
seeking reorganization, arrangement or similar relief under the Federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state or foreign country, province or other
political subdivision which proceeding or petition remains undismissed
for a period of sixty (60) days; or if the Borrower, the Parent or any
Material Subsidiary takes any action to indicate its consent to or
approval of any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $30,000,000 is rendered against the Borrower, the Parent
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's, the Parent's or any
Subsidiary's properties for any amount in excess of $30,000,000; and
such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of sixty
(60) days; or
(j) if the Parent, the Borrower or any Subsidiary shall cease
all or any part of its operations and such cessation is reasonably
likely to have a Material Adverse Effect; or
(k) if (i) the Borrower or any ERISA Affiliate shall engage in
any prohibited transaction (as described in Section 9.9(b) hereof),
which is not subject to a statutory or administrative exemption,
involving any Employee Benefit Plan of the Borrower or any ERISA
Affiliate, (ii) any accumulated funding deficiency (as referred to in
Section 9.9(d) hereof), whether or not waived, shall exist with respect
to any Single Employer Plan, (iii) a reportable event (as referred to
in Section 9.9(e) hereof) (other than a reportable event for which the
statutory notice requirement to the PBGC has been waived by regulation)
shall occur with respect to, or proceeding shall commence to have a
trustee appointed, or a trustee shall be appointed to administer or to
terminate, any Single Employer Plan, which reportable event or
institution or proceedings is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Single
Employer Plan for purposes of Title IV of ERISA, and in the case of
such a reportable event, the continuance of such reportable event shall
be unremedied for sixty (60) days after notice of such reportable event
pursuant to Section 4043(a), (c) or (d) of ERISA is given, as the case
may be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, and such termination results in a material liability
of the Borrower or any ERISA Affiliate to such Single Employer Plan or
the PBGC, (v) the Borrower or any Subsidiary shall withdraw from a
Multiemployer Plan for purposes of Title IV of ERISA, and, as a result
of any such withdrawal, the Borrower or any ERISA Affiliate shall incur
withdrawal liability to such Multiemployer Plan, or (vi) any other
material event or condition shall occur or exist; and in each case in
clauses (i) through (vi) of this Section 10.1(k), such event or
condition, together with all other such events or conditions, if any,
could reasonably be expected to subject the Borrower or any ERISA
Affiliate to any material tax, penalty or other liabilities; or
(l) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any Swap Agreement and such breach
shall continue beyond any grace period, if any, relating thereto
pursuant to its terms; or
(m) if the Parent shall (i) cease to exist other than due to a
merger into the Borrower, (ii) conduct any business other than as
currently conducted in connection with its ownership of the common
stock of the Borrower, (iii) make any investment, acquisition or
expenditure other than for daily operating expenses of its business
presently conducted or (iv) incur any Indebtedness for Money Borrowed
after the Closing Date; provided, however, that the Parent may conduct
acquisitions of entities in which shares of its capital stock are all
or a portion of the consideration paid and upon the consummation of
which the acquired entity is substantially simultaneously merged or
consolidated into the Borrower or a Subsidiary in accordance with the
terms of this Agreement;
(n) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: the
Agent may with the consent of the Required Lenders, and at the
direction of, the Required Lenders shall, (i) declare the Revolving
Credit Commitment, the Letter of Credit Commitment and any obligation
of the Lenders to make Revolving Loans, and of Bank of America to make
Swing Line Loans and the Issuing Bank to issue Letters of Credit
terminated, whereupon the obligation of each Lender to make further
Revolving Loans, of Bank of America to make further Swing Line Loans,
and of the Issuing Bank to issue additional Letters of Credit,
hereunder shall terminate immediately, and (ii) declare by notice to
the Borrower any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and all
other obligations of the Borrower to the Agent and the Lenders, shall
forthwith become immediately due and payable without presentment,
demand, protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the Revolving
Credit Commitment and the Letter of Credit Commitment and the
obligation of the Lenders to make Revolving Loans, of Bank of America
to make Swing Line Loans, and of the Issuing Bank to issue Letters of
Credit hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the necessity
of any action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or the
Required Lenders, or immediately without notice, demand or any other
action if an Event of Default under clause (g) or (h) above has
occurred, deposit cash with the Agent in an amount equal to the amount
of any Letter of Credit Outstandings, as collateral security for the
repayment of any future drawings or payments under such Letters of
Credit and the Borrower shall forthwith deposit and pay such amounts,
and such amounts shall be held by the Agent pursuant to the terms of a
cash collateral agreement acceptable to the Lenders; and
(C) the Agent and each of the Lenders shall have all of the
rights and remedies available under the Loan Documents or under any
applicable law.
10.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, subject to the provisions of Article XI, the
Agent with the consent of the Required Lenders, may, and at the direction of the
Required Lenders shall, proceed to protect and enforce the rights or remedies of
the Lenders and the Agent hereunder either by suit in equity or by action at
law, or both, whether for the specific performance of any covenant, agreement or
other provision contained herein or in any other Loan Document, or to enforce
the payment of the Obligations or any other legal or equitable right or remedy.
10.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Agent, the Lenders and the Issuing Bank
pursuant to Sections 3.2(g), 3.2(h), 4.6(a), 4.6(b), 4.6(c), 8.15, 12.5
and 12.9;
(b) amounts due to the Agent and the Issuing Bank pursuant to
Section 4.6(d);
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 10.1(B);
(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
recipients, including amounts due to any of the Lenders or their
affiliates in respect of Obligations consisting of liabilities under
any Swap Agreement with any of the Lenders or their affiliates on a pro
rata basis according to the amounts owed; and
(g) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
ARTICLE XI
The Agent
---------
11.1. Appointment and Authorization of Agent. (a) Each Lender hereby
irrevocably (subject to Section 11.9) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the generality
of the foregoing sentence, the use of the terms "agent" or "Agent" herein and in
the other Loan Documents with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties
(b) The Issuing Bank shall act on behalf of the Lenders with respect to
any Letter of Credit issued by it and the documents associated therewith until
such time (and except for so long) as the Agent may agree at the request of the
Required Lenders to act for the Issuing Bank with respect thereto; provided,
however, that the Issuing Bank shall have all of the benefits and immunities (i)
provided to the Agent in this Article XI with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the Applications and Agreements
for Letters of Credit pertaining to the Letters of Credit as fully as if the
term "Agent" as used in this Article XI included the Issuing Bank with respect
to such acts or omissions, and (ii) as additionally provided herein with respect
to the Issuing Bank.
11.2. Delegation of Duties. The Agent may execute any of its duties
under the Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact it selects in the absence of gross negligence or willful
misconduct.
11.3. Liability of Agent. No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Credit Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Credit Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any
Credit Party or any affiliate thereof.
11.4. Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any Note, writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephonic message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person, and upon advice and statements of legal
counsel (including counsel to any Credit Party), independent accountants, and
other experts selected by the Agent. The Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless an Assignment and
Acceptance shall have been filed with and accepted by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the Lenders
or the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense (other than any liability or expense resulting from the
gross negligence or willful misconduct of the Agent) which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders or all the Lenders, if required hereunder, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and participants. Where this Agreement or any other Loan
Document expressly permits or prohibits an action unless the Required Lenders
otherwise determine, the Agent shall, and in all other instances, the Agent may,
but shall not be required to, initiate any solicitation for the consent or a
vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 6.1, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender.
11.5. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, unless
the Agent shall have received written notice from a Lender or an Authorized
Representative referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The Agent will
notify the Lenders of its receipt of any such notice within three (3) days of
such receipt. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by all of the Lenders or the
Required Lenders, as applicable, in accordance with Article X; provided,
however, that unless and until the Agent has received any such direction, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Lenders.
11.6. Credit Decision; Disclosure of Information by Agent. Each Lender
acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by the Agent hereinafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any
Credit Party or any affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether any Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Credit
Parties and their respective subsidiaries, and all applicable bank or other
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and any other Credit Party hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent herein, the Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Credit Parties or any of their respective
affiliates which may come into the possession of any Agent-Related Person.
11.7. Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Credit Party and without limiting the obligation of any Credit Party to do so),
ratably according to the respective principal amount of the Notes and
Participations held by them (or, if no Notes or Participations are outstanding,
ratably in accordance with their respective Applicable Commitment Percentages as
then in effect), and hold harmless each Agent-Related Person from and against
any and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
the reasonable fees and expenses of counsel for the Agent and including the cost
of internal counsel) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall continue in effect
notwithstanding the Facility Termination Date and the resignation or replacement
of the Agent.
11.8. Agents in their Individual Capacities. Bank of America, the
Co-Documentation Agents and the Syndication Agent (collectively, the "Facility
Agents") and their affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Credit Parties and their respective affiliates as
though the Facility Agents were not agents or, in the case of Bank of America,
the Issuing Bank hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, the Facility Agents or
their affiliates may receive information regarding any Credit Party or its
affiliates (including information that may be subject to confidentiality
obligations in favor of such Credit Party or such affiliate) and acknowledge
that the Facility Agents shall be under no obligation to provide such
information to them. With respect to its Loans, each Facility Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not an agent or, in the case
of Bank of America, the Issuing Bank, and the terms "Lender" and "Lenders"
include each Facility Agent in its individual capacity.
11.9. Successor Agent. The Agent may resign as Agent upon 30 days'
written notice to the Borrower and each Lender. If the Agent resigns under this
Agreement, so long as there shall not have occurred and be continuing a Default
or an Event of Default, the Borrower may appoint and the Required Lenders may
approve (which approval shall not be unreasonably withheld or delayed) a
successor agent for the Lenders, or if a Default or an Event of Default shall
have occurred and be continuing, the Required Lenders may appoint a successor
Agent for the Lenders, which successor Agent shall be any commercial bank
organized under the laws of the United States or any state thereof or licensed
to do business in the United States or any state thereof, having a combined
surplus and capital of not less than $250,000,000. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Borrower, a successor
agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
power and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article XI and Sections 8.15, 12.5 and 12.9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
11.10. Sole Lender. Notwithstanding anything to the contrary contained
herein, until there shall be two or more Lenders, all references to the Agent
herein and in the other Loan Documents shall be deemed to refer to Bank of
America as Lender.
11.11. Agent Notices. The Agent hereby agrees to promptly deliver to
each of the Lenders copies of all information delivered pursuant to Sections
8.11, 8.12, 8.13, 8.14, 8.16 or 8.17 and all written notices received from the
Credit Parties hereunder, provided that the failure to so provide such
information and notices shall not, in the absence of the Agent's gross
negligence or willful misconduct, impair the rights and protections provided to
the Agent under this Article XI.
11.12. Syndication and Co-Documentation Agents. The parties hereto
agree that the Syndication Agent and Co-Documentation Agent shall have no duties
or responsibilities hereunder in such capacity upon or after execution of this
Agreement.
ARTICLE XII
Miscellaneous
-------------
12.1. Assignments and Participations. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Revolving Note, its Revolving Credit Commitment and its Participations);
provided, however, that
(i) except in the case of an assignment to another Lender or
an affiliate of a Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, any such partial assignment shall
be in an amount at least equal to $10,000,000 in the case of any
assignment of a Revolving Credit Commitment unless each of the Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed);
(ii) each such assignment by a Lender shall be of a
proportionate part of all of its rights and obligations under this
Agreement and its Revolving Note (except that any assignment (other
than an assignment of 100% of its interest) by Bank of America shall
not include its rights, benefits or duties as the Issuing Bank or as
the provider of Swing Line Loans; and
(iii) (x) the parties to such assignment shall execute and
deliver to the Agent for acceptance by it an Assignment and Acceptance
in the form of Exhibit B hereto, together with any Revolving Note
subject to such assignment and a processing and recordation fee of
$3,500, and (y) each assignee shall execute and deliver to the Borrower
a confidentiality agreement in the form of Exhibit J hereto.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party thereto but shall continue
to be entitled to the benefits of Article V and Sections 12.5 and 12.9. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued (at the reasonable expense of the Borrower) to the
assignor and the assignee. If the assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall deliver to the
Borrower and the Agent certification as to exemption from deduction or
withholding of Taxes in accordance with Section 5.6. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.
(b) The Agent shall maintain at its address referred to in Section 12.2
a copy of each Assignment and Acceptance delivered to and accepted as herein
required and a register for the recordation of the names and addresses of the
Lenders and the Revolving Credit Commitment of, and principal amount of the
Revolving Loans and the Letter of Credit Outstandings owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto and accepted by all other Persons whose acceptance is required
hereunder, together with any Note subject to such assignment and payment of the
processing fee, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Any Lender may, without the consent of or notice to the Borrower to
the Agent, sell participations to one or more Persons in all or a portion of its
rights, obligations or rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment or its Loans or
Participations); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the provisions
contained in Sections 5.1, 5.5 and 5.6 and shall be entitled to the benefits of
and subject to the provisions of Section 12.3, and (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Note and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers reducing the principal, interest, fees or
other amounts payable to such participant, postponing any scheduled date for the
payment of money to such participant, or releasing any Guarantor from its
Facility Guaranty). Notwithstanding the foregoing, a participant shall not be
entitled to receive any greater payment under Section 5.1 or 5.6 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such participant, unless the sale of the participation to
such participant is made with the Borrower's prior written consent. A
participant organized under the laws of a jurisdiction outside the United States
shall not be entitled to the benefits of Section 5.6 unless the Borrower is
notified of the participation sold to such participant and such participant
agrees, for the benefit of the Borrower, to comply with Sections 5.6(d)and
5.6(f) as though it were a Lender.
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign or pledge all or any portion of its Loans and
its Note to secure obligations of such Lender, including any pledge or
assignment to secure obligations of such Lender to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.14 hereof.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 12.1(a)), the Borrower shall be deemed to have
given its consent ten Business Days after the date notice thereof has been
delivered to the Borrower by the assigning Lender (through the Agent) unless
such consent is expressly refused by the Borrower prior to such fifth Business
Day.
(h) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Agent, the Lenders,
or any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest therein)
conferred hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents except with the prior
written consent of each Lender, and any such purported assignment, delegation or
other transfer shall be void. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
GTECH Corporation
55 Technology Way
West Greenwich, Rhode Island 02817
Attention: Vice President and Treasurer
Telephone: (401) 392-1000
Telefacsimile: (401) 392-4940
with a copy to the General Counsel at the same address:
Telefacsimile: (401) 392-0391
(b) if to the Agent:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 388-1553
Telefacsimile: (704) 386-9923
with a copy to:
Bank of America, N.A.
335 Madison Avenue, 5th Floor
NY1-503-05-05
New York, New York 10017
Attention: Igor Suica
Telephone: (212) 503-8701
Telefacsimile: (212) 503-7066
(c) if to the Lenders:
At the addresses set forth on the signature pages hereof
and on the signature page of each Assignment and
Acceptance;
(d) if to any other Credit Party, at the address set forth
on the signature page of the Facility Guaranty executed
by such Credit Party, as the case may be.
12.3. Right of Set-off; Adjustments. (a) The Borrower agrees that the
Agent and each Lender shall have a lien for all the Obligations of the Borrower
upon all deposits or deposit accounts, of any kind, or any interest in any
deposits or deposit accounts thereof, now or hereafter pledged, mortgaged,
transferred or assigned to the Agent or such Lender or otherwise in the
possession or control of the Agent or such Lender (other than for safekeeping)
for any purpose for the account or benefit of the Borrower and including any
balance of any deposit account or of any credit of the Borrower with the Agent
or such Lender, whether now existing or hereafter established, hereby
authorizing the Agent and each Lender at any time or times with or without prior
notice while an Event of Default exists to apply such balances or any part
thereof to such of the Obligations of the Borrower to the Lenders then past due
and in such amounts as they may elect, and whether or not any collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or such Lender as
soon as the same may be put in transit to it by mail or carrier or by other
bailee.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender or is repaid in
whole or in part by such benefitted Lender in good faith settlement of a pending
or threatened avoidance claim, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery or
settlement payment, but without interest. For purposes of this Section 12.3(b)
the term "pro rata" shall be determined with respect to both the Revolving
Credit Commitment of each Lender and to the Total Revolving Credit Commitment
after subtraction in each case of amounts, if any, by which any such Lender has
not funded its share of the outstanding Revolving Credit Loans and
Participations, as the case may be. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender so purchasing a participation
from a Lender pursuant to this Section 12.3 may, to the fullest extent permitted
by law, exercise all of its rights of payment (including, without limitation,
all rights of set-off, banker's lien or counterclaim) with respect to such
participation as fully as if such Person were the direct creditor of the
Borrower in the amount of such participation.
12.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
12.5. Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses of the Agent and BAS in connection with the syndication,
preparation, due diligence, execution, delivery, administration, modification,
and amendment of this Agreement, the other Loan Documents, and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Agent and BAS with respect
thereto and with respect to advising the Agent and BAS as to their rights and
responsibilities under the Loan Documents, provided, however, that the only fees
and expenses to be paid in connection with the closing of the Loan are those
provided in the Fee Letter. The Borrower further agrees to pay on demand all
reasonable costs and expenses of the Agent and the Lenders (including, without
limitation, reasonable attorneys' fees and expenses) in connection with the
enforcement (whether through negotiations, legal proceedings, or otherwise) of
the Loan Documents and the other documents to be delivered hereunder.
12.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Agent on behalf of the Required
Lenders (and, if Article XI or the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or waiver shall, unless
signed by each Lender directly affected thereby, (i) increase the Revolving
Credit Commitments of such Lenders or the Total Revolving Credit Commitment,
(ii) reduce the principal of or rate of interest on any Revolving Loan or any
fees or other amounts payable hereunder, except that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default Rate" or
to waive any obligation of the Borrower to pay interest at the Default Rate,
(iii) postpone any date fixed for the payment or mandatory prepayment of
principal, interest, fees or other amounts payable hereunder or for termination
of any Revolving Credit Commitment, or (iv) change the percentage of the
Revolving Credit Commitment or of the unpaid principal amount of the Notes, or
the number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section 12.6 or any other provision of this Agreement
or (v) release any Guarantor except as expressly contemplated in the Loan
Documents; and provided, further, that no such amendment or waiver that affects
the rights, privileges or obligations of Bank of America as provider of Swing
Line Loans, shall be effective unless signed in writing by Bank of America or
that affects the rights, privileges or obligations of the Issuing Bank as issuer
of Letters of Credit, shall be effective unless signed in writing by the Issuing
Bank.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.7. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such fully
executed counterpart. Signatures on communications and other documents may be
transmitted by facsimile only with the consent of the Agent in its sole and
absolute discretion in each instance. The effectiveness of any such signatures
accepted by the Agent shall, subject to applicable law, have the same force and
effect as manual signatures and shall be binding on all parties. The Agent may
also require that any such signature be confirmed by a manually signed hard copy
thereof. Each party hereto hereby adopts as an original executed signature page
each signature page hereafter furnished by such party to the Agent (or an agent
of the Agent) bearing (with the consent of the Agent) a facsimile signature by
or on behalf of such party. Nothing contained in this Section shall limit the
provisions of Section 11.4.
12.8. Termination. This Agreement shall terminate on the Facility
Termination Date, except that (x) those provisions which by the express terms
thereof continue in effect notwithstanding the Facility Termination Date, and
(y) obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, shall continue in effect. Notwithstanding
the foregoing, if after receipt of any payment of all or any part of the
Obligations, the Agent, the Issuing Bank or any Lender [(including the Swing
Line lender)] is for any reason compelled to surrender such payment to any
Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason or elects to repay any such amount in good faith settlement of a pending
or threatened avoidance claim, (i) this Agreement including the provisions
pertaining to Participations in Letters of Credit, Reimbursement Obligations,
and Swing Line Loans) shall continue in full force (or be reinstated, as the
case may be) and the Borrower shall be liable to, and shall indemnify and hold
the Agent, the Issuing Bank or such Lender harmless for, the amount of such
payment surrendered until the Agent, the Issuing Bank or such Lender shall have
been finally and irrevocably paid in full, and (ii) in the event any portion of
any amount so required to be surrendered by the Agent or the Issuing Bank or the
Swing Line lender shall have been distributed to the Lenders, the Lenders shall
promptly repay such amounts to the Agent or the Issuing Bank or the Swing Line
lender on demand therefor. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been taken
by the Agent, the Issuing Bank or the Lenders in reliance upon such payment, and
any such contrary action so taken shall be without prejudice to the Agent's, the
Issuing Bank's or the Lenders' rights under this Agreement and shall be deemed
to have been conditioned upon such payment having become final and irrevocable.
12.9. Indemnification; Limitation of Liability. (a) The Borrower agrees
to indemnify and hold harmless each Agent-Related Person and each Lender and
each of their affiliates and their respective officers, directors, employees,
agents, and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans (all of the
foregoing, collectively, the "Indemnified Liabilities"), except to the extent
such claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 12.9 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries, any Guarantor, or
any security holders or creditors thereof arising out of, related to or in
connection with the transactions contemplated herein, except to the extent that
such liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified Party's
gross negligence or willful misconduct. The Borrower agrees not to assert any
claim against any Agent-Related Person, any Lender, any of their affiliates, or
any of their respective directors, officers, employees, attorneys, agents, and
advisers, on any theory of liability, for special, indirect, consequential, or
punitive damages arising out of or otherwise relating to the Loan Documents, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 12.9 or Section 8.15 hereof against the Borrower, the
applicable Indemnified Party shall give written notice to the Borrower promptly
after such Indemnified Party receives actual notice of any claim, action, suit,
loss, cost, liability, damage or expense incurred or instituted for which the
indemnification is sought. If requested by the Borrower in writing, and so long
as no Default or Event of Default shall have occurred and be continuing, such
Indemnified Party shall contest at the expense of the Borrower the validity,
applicability and/or amount of such suit, action, or cause of action to the
extent such contest may be conducted in good faith on legally supportable
grounds. If any lawsuit or enforcement action is filed against any Indemnified
Party, written notice thereof shall be given to the Borrower as soon as
practicable (and in any event within 20 days after the service of the citation
or summons). Notwithstanding the foregoing, the failure so to notify the
Borrower as provided in this section will relieve the Borrower from liability
hereunder only if and to the extent that such failure results in the forfeiture
by the Borrower of any substantive rights or defenses. The applicable
Indemnified Party shall control the defense and investigation of such lawsuit or
action and shall employ and engage counsel of its own choice to handle and
defend the same, at the Borrower's reasonable cost, risk and expense; provided,
however, that the Borrower may, at its own cost participate in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom. If the Borrower has acknowledged to any Indemnified Party its
obligation to indemnify hereunder, such Indemnified Party, so long as no Default
or Event of Default shall have occurred and be continuing, shall not settle such
lawsuit or enforcement action without the prior written consent of the Borrower
and, if the Borrower has not so acknowledged its obligation, such Indemnified
Party shall not settle such lawsuit or enforcement action without giving twenty
(20) days' prior written notice of such settlement and its terms to the
Borrower. The agreements and obligations of the Borrower contained in this
Section 12.9 shall continue in effect notwithstanding the Facility Termination
Date, the final payment in full of the Obligations and the termination of this
Agreement.
12.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of April 11, 2001, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Revolving Credit Facility and Letter of
Credit Facility, shall survive and continue in effect).
12.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. Confidentiality.
(a) Except as necessary to exercise its rights or perform its
obligations under this Agreement or as permitted pursuant to this Section 12.14
or Section 8.1 hereof, each Lender (including, for purposes of this Section
12.14, any participant thereof) shall keep confidential and shall not disclose
any Confidential Information unless the Borrower has, in its sole discretion,
previously and expressly consented to such disclosure in writing. A Lender may
disclose such Confidential Information (i) to its and its affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (ii) to the extent requested by any
Governmental Authority or regulatory authority; (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (iv)
to any other party to this Agreement; (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (vi) subject to an agreement containing
provisions substantially the same as those of this Section, to (1) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (2) any
direct or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(vii) with the consent of the Borrower; (viii) to the extent such Information
(1) becomes publicly available other than as a result of a breach of this
Section or (2) becomes available to the Agent or any Lender on a nonconfidential
basis from a source other than the Borrower; or (ix) to the National Association
of Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its affiliates.
(b) Upon the expiration or earlier termination of this Agreement, or
the cessation of any Lender's status as a party hereto or a participant of a
party hereto, the Lender(s) shall promptly deliver to the Borrower all records
or other information in any media containing or embodying Confidential
Information which were delivered or made available to the Lenders in connection
herewith, including any copies thereof, and to the extent such records or
information is not returned, shall certify that such information has been
destroyed; provided, however, that each Lender may retain Confidential
Information required to be retained by any order of any Governmental Authority
or otherwise required by law or regulation.
(c) This Section 12.14 shall indefinitely survive the expiration or
earlier termination of this Agreement, or the cessation of any Lender's status
as a party hereto.
12.15. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, OR IN ANY WAY
CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, WHETHER NOW EXISTING OR
HEREAFTER ARISING, THE BORROWER, THE AGENT AND THE LENDERS HEREBY
AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION,
SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY
AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION, SUIT OR PROCEEDING. ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
12.16. Special Funding Option.
(a) Notwithstanding anything to the contrary contained herein, any
Lender (for the purposes of this Section 12.16, a "Granting Lender") may grant
to a special purpose funding vehicle (for the purposes of this Section 12.16, an
"SPC") the option to make, on behalf of such Granting Lender, all or a portion
of the Advances and Participations which such Granting Lender is obligated to
make (a "Funding Obligation") hereunder, such option to be exercisable in the
sole discretion of the SPC; provided, however, that
(i) such Granting Lender's obligations under this Agreement
and the Loan Documents shall remain unchanged, including without
limitation the indemnification obligations of the Granting Lender
pursuant to Section 11.7 hereof;
(ii) such Granting Lender shall remain solely responsible to
the other parties hereto for the performance of all funding
obligations;
(iii) the Borrowers and the Lenders shall continue to deal
solely and directly with such Granting Lender in connection with such
Granting Lender's rights and obligations under this Agreement; the
Agent shall continue to deal directly with the Granting Lender as agent
for the SPC with respect to distribution of payment of principal,
interest and fees, notices of Conversion and Continuation and all other
matters;
(iv) such Granting Lender shall retain the sole right to
enforce the obligations of the Borrowers relating to its Loans and its
Notes and its Participations and to approve any amendment,
modification, or waiver of any provision of this Agreement, each of
which may, if so agreed in writing between the Granting Lender and the
SPC, require the prior consent of any such SPC which has exercised the
option to undertake the Funding Obligation in connection with such
Granting Lender's Commitments and Participations and Obligations owing
thereto before the Granting Lender approves any such amendment,
modification or waiver;
(v) the granting of such option shall not constitute an
assignment to or participation of such SPC of or in the Granting
Lender's Commitments and Participations and Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as a result
of the granting of such option;
(vii) such SPC shall not become obligated or committed to make
Advances as a result of the granting of such option;
(viii) if such SPC elects not to exercise such option or
otherwise fails to make all or any part of an Advance or Participation,
the Granting Lender shall retain its funding obligation and be
obligated to make the entire Advance or Participation or any portion of
such Advance or Participation not made by such SPC; and
(b) Advances and Participations made by an SPC hereunder shall be
deemed to satisfy the funding obligation and utilize the Commitment of the
Granting Lender as if, and to the same extent, such Advances were made by such
Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for any
indemnity or payment under this Agreement for which a Granting Lender would
otherwise be liable so long as, and to the extent that, the Granting Lender
provides such indemnity or makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States of America or any State thereof.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may (i) at any time and without paying any processing fee
therefor, assign or participate all or a portion of its interests in any Loans
or Participations as they may exist consistent with the terms of this Section
12.16 to its Granting Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans or Participations, and (ii) disclose on a
confidential basis any nonpublic information relating to Advances made by such
SPC hereunder to any rating agency, commercial paper dealer or provider of any
surety or guarantee to such SPC.
(e) This Section 12.16 may not be amended without the prior written
consent of the Granting Lender on behalf of which such SPC has made all or any
part of its Advances which remain outstanding at the time of such amendment.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
GTECH CORPORATION
By: /s/ William M. Pieri
--------------------------------------
William M. Pieri
Vice President and Treasurer
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ Igor Suica
--------------------------------------
Igor Suica
Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ Igor Suica
--------------------------------------
Igor Suica
Vice President
Lending Office:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone:
Telefacsimile:
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.: 13662122506
Reference: GTECH Corporation
Attention: Agency Services
THE BANK OF NOVA SCOTIA, as Syndication
Agent and as Lender
By: /s/ Authorized Signatory
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Lending Office:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Jill Quiroz
Telephone: (404) 877-1544
Telefacsimile: (404) 888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York
ABA# 026002532
Account No.: The Bank of Nova Scotia
Reference: Boston Loan Service A/C
#0609137 Ref. GTECH
Attention:
CREDIT LYONNAIS NEW YORK BRANCH, as
Co-Documentation Agent and as Lender
By: /s/ Deborah Bradley
--------------------------------------
Name: Deborah Bradley
------------------------------------
Title: First Vice President
-----------------------------------
Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Agnes Castillo
Telephone: (216) 261-7669
Telefacsimile: (216) 261-7696
Wire Transfer Instructions:
Federal Reserve Bank
ABA# 026-008-073
Account No.: For Account of Credit
Lyonnais NY Branch
Reference: GTECH Corporation
Attention: Loan Servicing
FLEET NATIONAL BANK, as Co-Documentation
Agent and as Lender
By: /s/ Harvey H. Thayer, Jr.
--------------------------------------
Name: Harvey H. Thayer, Jr.
------------------------------------
Title: Managing Director
-----------------------------------
Lending Office:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attention: Judy Vetters
Telephone: (617) 434-5182
Telefacsimile: (617) 434-0800
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA# 011000138
Account No.: 151035166156
Reference: GTECH Corporation
Attention: Commercial Loan Services
CITIZENS BANK OF RHODE ISLAND, as Lender
By: /s/ Stephen P. Higginbotham
--------------------------------------
Name: Stephen P. Higginbotham
------------------------------------
Title: Senior Vice President
-----------------------------------
Lending Office:
Citizens Bank of Rhode Island
1 Riverside Drive
East Providence, Rhode Island 02905
Attention: Carol Hawkins
Telephone: (401) 734-5296
Telefacsimile: (401) 734-5385
Wire Transfer Instructions:
Citizens Bank
Providence, Rhode Island
ABA# 011500120
Account No.: 1015524
Reference: GTECH Corporation
Attention: Carol Hawkins
THE BANK OF NEW YORK, as Lender
By: /s/ Kenneth P. Sneider, Jr.
--------------------------------------
Name: Kenneth P. Sneider, Jr.
------------------------------------
Title: Vice President
-----------------------------------
Lending Office:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Laina Chan
Telephone: (212) 635-6720
Telefacsimile: (212) 635-6426
Wire Transfer Instructions:
The Bank of New York
ABA# 021-000-018
Account No.: GLA #111556
Reference:
Attention: Loan Processing Support
ALLIED IRISH BANKS, p.l.c., as Lender
By: /s/ Anthony O'Reilly
--------------------------------------
Name: Anthony O'Reilly
------------------------------------
Title: Vice President
-----------------------------------
Lending Office:
Allied Irish Banks, p.l.c.
New York, New York
Attention: Anthony O'Reilly
Telephone: (212) 515-6847
Telefacsimile: (212) 339-8325
Wire Transfer Instructions:
Chase Manhattan Bank
New York, New York
ABA#
Account Name: AIB Dublin
Account No.: 001 1 907599
Reference: AIB Corporate Banking NY
Attention:
KEY CORPORATE CAPITAL, INC., as Lender
By: /s/ Jeff Kalinowski
--------------------------------------
Name: Jeff Kalinowski
------------------------------------
Title: Vice President
-----------------------------------
Lending Office:
Key Corporate Capital, Inc.
127 Public Square
MC: OH-01-27-0402
Cleveland, Ohio 44114
Attention:
Telephone:
Telefacsimile:
Wire Transfer Instructions:
KeyBank
Cleveland, Ohio
ABA# 041-001-039
Account No.: 3057
Reference: GTECH Corporation
Attention: Specialty Loan Services
COMMERZBANK AG, New York and Grand Cayman
Branches
By: /s/ Robert Donohue
--------------------------------------
Name: Robert Donohue
------------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ Peter Doyle
--------------------------------------
Name: Peter Doyle
------------------------------------
Title: Vice President
-----------------------------------
Lending Office:
Commerzbank AG, New York Branch
New York, New York
Attention: Al Caputo
Telephone: (212) 266-7694
Telefacsimile: (212) 266-7204
Wire Transfer Instructions:
Commerzbank AG, New York Branch
New York, New York
ABA# 026-008-044
Account No.: 150-101731805
Reference: GTECH Corporation
Attention: Commercial Lending Services
EXHIBIT A
APPLICABLE COMMITMENT PERCENTAGES
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
- ------ ---------- ----------
Bank of America, N.A $49,000,000 16.3333333333%
Bank of Nova Scotia 42,000,000 14.0000000000%
Credit Lyonnais 42,000,000 14.0000000000%
Fleet Bank 42,000,000 14.0000000000%
Bank of New York 25,000,000 8.3333333333%
Commerzbank 25,000,000 8.3333333333%
Allied Irish 25,000,000 8.3333333333%
Citizens 25,000,000 8.3333333333%
Key Bank 25,000,000 8.3333333333%
---------- ------------
$300,000,000 100%
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of __________, 2001
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement"; the terms defined therein being used herein
as therein defined), among GTECH Corporation, a Delaware corporation (the
"Borrower"), the Lenders from time to time party thereto, and Bank of America,
N.A., as Agent, the Issuing Bank and Swing Line Lender, The Bank of Nova Scotia,
as Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation
Agent, and Fleet National Bank, as Co-Documentation Agent.
The assignor identified on the signature page hereto (the "Assignor")
and the assignee identified on the signature page hereto (the "Assignee") agree
as follows:
1. (a) Subject to paragraph 11, effective as of the date
specified on Schedule 1 hereto (the "Effective Date"), the
Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, the interest described on Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's
rights and obligations under the Agreement.
(a) From and after the Effective Date, (i) the Assignee shall be a
party under the Agreement and will have all the rights and
obligations of a Lender for all purposes under the Loan
Documents to the extent of the Assigned Interest and be bound
by the provisions thereof, and (ii) the Assignor shall
relinquish its rights and be released from its obligations
under the Agreement to the extent of the Assigned Interest.
The Assignor and/or the Assignee, as agreed by the Assignor
and the Assignee, shall deliver, in immediately available
funds, any applicable assignment fee required under Section
12.1 of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by the Assignor and the Assignee.
3. From and after the Effective Date, the Agent shall make all payments
under the Agreement and the Notes, if any, in respect of the Assigned Interest
(including all payments of principal, interest and fees with respect thereto) to
the Assignee. The Assignor and the Assignee shall make all appropriate
adjustments in payments under the Agreement and such Notes, if any, for periods
prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) the Assignor is the legal and beneficial owner of the
Assigned Interest, and the Assigned Interest is free
and clear of any adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately
and completely sets forth the outstanding amount of
all Loans and Participations relating to the Assigned
Interest as of the Effective Date;
(c) it has the power and authority and the legal right to
make, deliver and perform, and has taken all
necessary action, to authorize the execution,
delivery and performance of this Assignment and
Acceptance, and any and all other documents delivered
by it in connection herewith and to fulfill its
obligations under, and to consummate the transactions
contemplated by, this Assignment and Acceptance and
the Loan Documents, and no consent or authorization
of, filing with, or other act by or in respect of any
Governmental Authority, is required in connection
herewith or therewith; and
(d) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any of its Affiliates
or the performance by the Borrower or any of its Affiliates of their respective
obligations under the Loan Documents, and assumes no responsibility with respect
to any statements, warranties or representations made under or in connection
with any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document other than as expressly
set forth above.
5. The Assignee represents and warrants to the Assignor and the Agent
that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection herewith or therewith;
(c) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignee;
(d) under applicable laws no tax will be required to be
withheld by the Agent or the Borrower with respect to any payments to
be made to the Assignee hereunder or under any Loan Document, and
unless otherwise indicated in the space opposite the Assignee's
signature below, no tax forms described in Section 5.6(d) of the
agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement,
together with copies of the most recent financial statements of the
Borrower delivered pursuant thereto, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance.
The Assignee has independently and without reliance upon the Assignor
or the Agent and based on such information as the Assignee has deemed
appropriate, made its own credit analysis and decision to enter into
this Assignment and Acceptance. The Assignee will, independently and
without reliance upon the Agent or any Lender, and based upon such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Agreement.
5. The Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof,
together with such powers as are incidental thereto.
6. The Assignee appoints and authorizes the agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof,
together with such powers as are incidental thereto.
7. If either the Assignee or the Assignor desires a Note to
evidence its Loans, it shall request the Agent to procure a
Note from the Borrower.
8. The Assignor and the Assignee agree to execute and deliver
such other instruments, and take such other action, as either
party may reasonably request in connection with the
transactions contemplated by this Assignment and Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure
to the benefit of the parties and their respective successors
and assigns; provided, however, that the Assignee shall not
assign its rights or obligations hereunder without the prior
written consent of the Assignor and any purported assignment,
absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually
signed and may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together
shall constitute one and the same instrument. This Assignment
and Acceptance shall be governed by and construed in
accordance with the laws of the state specified in Section
12.14(a) of the Agreement.
11. The effectiveness of the assignment described herein is
subject to:
(a) if such consent is required by the Agreement, receipt
by the Assignor and the Assignee of the consent of
the Agent, the Issuing Bank and the Swing Line Lender
and/or the Borrower to the assignment described
herein. By delivering a duly executed and delivered
copy of this Assignment and Acceptance to the Agent,
the Assignor and the Assignee hereby request any such
required consent and request that the Agent register
the Assignee as a Lender under the Agreement
effective as of the Effective Date; and
(b) receipt by the Agent of (or other arrangements
acceptable to the Agent with respect to) any
applicable assignment fee referred to in Section 12.1
of the Agreement and any tax forms required by
Section 5.6(d) of the Agreement.
By signing below, the Agent agrees to register the Assignee as a Lender
under the Agreement, effective as of the Effective Date with respect to the
Assigned Interest, and will adjust the registered Applicable Commitment
Percentage of the Assignor under the Agreement to reflect the assignment of the
Assigned Interest.
12. Attached hereto as Schedule 2 is all contact, address, account and
other administrative information relating to the Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor:
[NAME OF ASSIGNOR]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Tax forms required by Section 5.6(d) Assignee:
of the Agreement included.
[NAME OF ASSIGNEE]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
In accordance with and subject to Section 12.1 of the
Credit Agreement, the undersigned consent to the
foregoing assignment as of the Effective Date.
[BORROWER]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A., as Agent, Issuing
Bank and Swing Line Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date:
----------------------------
Type and
amount of outstanding Assigned Applicable
Assigned Commitment Obligations assigned Commitment Percentage
- ------------------- -------------------- ---------------------
$ [type] $ %
------------------ ------------ -----
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information.)
C-2
#413235.23
EXHIBIT C
NOTICE OF APPOINTMENT (OR REVOCATION) OF AUTHORIZED REPRESENTATIVE
Reference is hereby made to the Credit Agreement dated as of
____________ __, 2001 (the "Agreement") among GTECH Corporation, a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"), The Bank of Nova
Scotia, as Syndication Agent, Credit Lyonnais New York Branch, as
Co-Documentation Agent and Fleet National Bank, as Co-Documentation Agent.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
- ----------------------------- -------------------- ------------------------
- -----------------------------
- -----------------------------
- ----------------------------- -------------------- ------------------------
- -----------------------------
- -----------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, 20__.
GTECH CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT D-1
FORM OF BORROWING NOTICE
To: Bank of America, N.A.,
as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-14
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 409-0296
Reference is hereby made to the Credit Agreement dated as of _________
__, 2001 (the "Agreement") among GTECH Corporation, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Agent for the Lenders ("Agent"), The Bank of Nova Scotia, as
Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation Agent,
and Fleet National Bank, as Co-Documentation Agent. Capitalized terms used but
not defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent that Loans of the type and amount set forth below be made on the
date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- --------- --------- ---------------
- -------------- --------------- ---------------------- ------------------------
Base Rate Loan
Eurodollar Rate Loan
--------------- ---------------------- ------------------------
- -----------------------
(1) For any Eurodollar Rate Loan, one, two, three, six or twelve months.
(2) Must be $5,000,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions].
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 7.6(a) of the
Agreement shall be deemed to refer to those financial statements most recently
delivered to you pursuant to Section 8.1 of the Agreement (it being understood
that any financial statements delivered pursuant to Section 8.1(b) have not been
certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
GTECH CORPORATION
BY:
--------------------------------------
Authorized Representative
DATE:
------------------------------------
EXHIBIT D-2
FORM OF BORROWING NOTICE--SWING LINE LOANS
To: Bank of America, N.A.,
101 North Tryon Street, 15th Floor
NC1-001-15-14
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 409-0296
Reference is hereby made to the Credit Agreement dated as of _______
__, 2001 (the "Agreement") among GTECH Corporation, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Agent for the Lenders ("Agent"), The Bank of Nova Scotia, as
Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation Agent,
and Fleet National Bank, as Co-Documentation Agent. Capitalized terms used but
not defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to Bank of America that a Swing Line Loan of the amount set forth below be made
on the date indicated:
Amount(1) Date of Loan
----------------- ---------------- ----, ------
- -----------------------
(1) Must be $500,000 or if greater an integral multiple of $100,000, unless
a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[insert transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 7.6(a) of the
Agreement shall be deemed to refer to those financial statements most recently
delivered to you pursuant to Section 8.1 of the Agreement (it being understood
that any financial statements delivered pursuant to Section 8.1(b) have not been
certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
BY:
----------------------------------------
Authorized Representative
DATE:
--------------------------------------
EXHIBIT E
FORM OF INTEREST RATE SELECTION NOTICE
To: Bank of America, N.A., as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-14
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 409-0296
Reference is hereby made to the Credit Agreement dated as of June 22,
2001 (the "Agreement") among GTECH Corporation, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Agent for the Lenders ("Agent"), The Bank of Nova Scotia, as
Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation Agent,
and Fleet National Bank, as Co-Documentation Agent. Capitalized terms used but
not defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Revolving Loan
- --------------
Base Rate Loan
--------------- -------------------- ------------------------
Eurodollar Rate Loan
--------------- -------------------- ------------------------
(1) For any Eurodollar Rate Loan, one, two, three, six or twelve months.
(2) Must be $5,000,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan; may
be same Business Day in case of a Base Rate Loan.
GTECH CORPORATION
BY:
----------------------------------
Authorized Representative
DATE:
--------------------------------
EXHIBIT F-1
FORM OF REVOLVING NOTE
Promissory Note
(Revolving Loan)
$---------------------- ---------, --------------
2001
----------- ----,
FOR VALUE RECEIVED, GTECH Corporation, a Delaware corporation having
its principal place of business located in West Greenwich, Rhode Island (the
"Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for the
Lenders (the "Agent"), located at 101 North Tryon Street, NC1-001-15-04,
Charlotte, North Carolina 28255 (or at such other place or places as the Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of ________________, 2001 among the Borrower, the financial institutions
party thereto (collectively, the "Lenders") the Agent, The Bank of Nova Scotia,
as Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation
Agent, and Fleet National Bank, as Co-Documentation Agent (the "Agreement" --all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
______________________________ ____________________________ ($_____________) or,
if less than such principal amount, the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Agreement on
the Revolving Credit Termination Date or such earlier date as may be required
pursuant to the terms of the Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on the
dates and at the rates provided in Articles II and IV of the Agreement. All or
any portion of the principal amount of Loans may be prepaid or required to be
prepaid as provided in the Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Revolving Note upon the occurrence of certain events and for prepayments of
Revolving Loans upon the terms and conditions specified therein. If payment of
all sums due hereunder is accelerated under the terms of the Agreement or under
the terms of the other Loan Documents executed in connection with the Agreement,
the then remaining principal amount and accrued but unpaid interest thereon
evidenced by this Revolving Note shall bear interest which shall be payable on
demand at the Default Rate, or the maximum rate permitted under applicable law,
if lower, until such principal and interest have been paid in full. Further, in
the event of such acceleration, this Revolving Note, and all other indebtedness
of the Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement. Payment of
all amounts due under this Note is guaranteed by each Guarantor pursuant to the
Facility Guaranties.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[Signature page follows.]
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
GTECH CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT F-2
FORM OF SWING LINE NOTE
Promissory Note
(Swing Line Loan)
$25,000,000 ---------, --------------
2001
----------- ----,
FOR VALUE RECEIVED, GTECH Corporation, a Delaware corporation having
its principal place of business located in West Greenwich, Rhode Island (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A. ("Bank
of America"), in its individual capacity, at Bank of America's offices located
at 101 North Tryon Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at
such other place or places as Bank of America may designate) at the times set
forth in the Credit Agreement dated as of ________ __, 2001 among the Borrower,
the financial institutions party thereto (collectively, the "Lenders") and Bank
of America, N.A., as agent for the Lenders (the "Agent"), The Bank of Nova
Scotia, as Syndication Agent, Credit Lyonnais New York Branch, as
Co-Documentation Agent, and Fleet National Bank, as Co-Documentation Agent (as
amended, supplemented or otherwise modified from time to time, the "Agreement"
- -- all capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of TWENTY FIVE
MILLION AND NO/100 DOLLARS ($25,000,000) or if less than such principal amount,
the aggregate unpaid principal amount of all Swing Line Loans made by Bank of
America to the Borrower pursuant to the Agreement on the Revolving Credit
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Articles II and IV of the Agreement. All or any portion of the
principal amount of Swing Line Loans may be prepaid as provided in the
Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
Default Rate, or the maximum rate permitted under applicable law, if lower,
until such principal and interest have been paid in full. Further, in the event
of such acceleration, this Note, and all other indebtedness of the Borrower to
the Lender shall become immediately due and payable, without presentation,
demand, protest or notice of any kind, all of which are hereby waived by the
Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed (i) in the case of a Eurodollar
Loan, on the basis of a 360 day year for the actual number of days in the
interest period, and (ii) in the case of a Base Rate Loan, on the basis of the
actual number of days elapsed in a 365/366 day year.
This Note is the Swing Line Note referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement. Payment of all amounts due under this
Note is guaranteed by each Guarantor pursuant to the Facility Guaranties.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[Signature page follows.]
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
GTECH CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT G
FORM OF OPINION OF BORROWER'S COUNSEL
June __, 2001
To Each of the Agent
and the Lenders
Listed on Schedule I
Attached Hereto
Re: $300,000,000 Revolving Credit, Swing Line and Letter of Credit
Facilities to GTECH Corporation
Ladies and Gentlemen:
We have acted as special counsel to GTECH Corporation, a Delaware
corporation (the "Borrower"), GTECH Holdings Corporation, a Delaware corporation
(the "Parent"), GTECH Rhode Island Corporation, a Rhode Island corporation (the
"Rhode Island Guarantor"), and GTECH Latin America Corporation, a Delaware
corporation (the "Latin America Guarantor" which, together with the Borrower,
the Parent, and the Rhode Island Guarantor, may be collectively referred to as
the "Obligors"), in connection with each of the revolving credit facility, swing
line facility and letter of credit facility (collectively, the "Credit
Facilities") being made available by you to the Borrower on this date in the
maximum principal amount outstanding of $300,000,000 pursuant to the Credit
Agreement of even date herewith among the Borrower, Bank of America, N.A.,
individually and as Administrative Agent, The Bank of Nova Scotia, individually
and as Syndication Agent, Credit Lyonnais New York Branch, individually and as
Co-Documentation Agent, Fleet National Bank, individually and as
Co-Documentation Agent, and the other Lenders party thereto from time to time
(the "Credit Agreement").
We have also acted as special counsel to (a) the Parent in connection
with the Guaranty Agreement of even date herewith between the Parent and the
Agent for the benefit of the Lenders to the Credit Agreement (the "Parent
Guaranty") and (b) the Rhode Island Guarantor and the Latin America Guarantor in
connection with the Guaranty Agreement of even date herewith among the Rhode
Island Guarantor, the Latin America Guarantor, and the Agent for the benefit of
the Lenders to the Credit Agreement (the "Subsidiary Guaranty).
We have been requested by the Borrower to deliver this opinion to you
in accordance with the condition set forth in Section 6.1(a)(ii) of the Credit
Agreement. All capitalized terms not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement.
As such counsel, we have reviewed the following documents:
1. the Credit Agreement;
2. the Notes;
3. the Parent Guaranty; and
4. the Subsidiary Guaranty.
The Credit Agreement and the Notes are collectively referred to hereinafter as
the "Borrower Loan Documents". All the foregoing documents are collectively
referred to hereinafter as the "Loan Documents".
In these capacities, we have examined and are familiar with the
following documents relating to the Borrower:
a. Certificate of Good Standing issued by the Delaware Secretary
of State on June 11, 2001;
b. Restated Certificate of Incorporation dated as of January 13,
1993, certified by the Delaware Secretary of State on June 11,
2001;
c. Amended and Restated Bylaws as certified in the Borrower
Secretary's Certificate (as hereinafter defined);
d. Certificate of Good Standing issued by the Rhode Island
Secretary of State on June 12, 2001;
e. Certificate of Status Foreign Corporation issued by the
California Secretary of State on June 13, 2001;
f. Certificate of Legal Existence issued by the Georgia Secretary
of State on June 12, 2001;
g. Certificate of Good Standing issued by the New York Secretary
of State on June 8, 2001;
h. Certificate of Good Standing issued by the Texas Secretary of
State on June 12, 2001; and
i. Certificate of Assistant Secretary of even date herewith (the
"Borrower Secretary's Certificate"), relating to, among other
things, authorization to enter into the transactions
contemplated by the Borrower Loan Documents and execution and
delivery of the Borrower Loan Documents and related documents
and instruments.
In these capacities, we have examined and are familiar with the
following documents relating to the Parent:
j. Certificate of Good Standing issued by the Delaware Secretary
of State on June 11, 2001;
k. Restated Certificate of Incorporation dated as of January 22,
1990, as amended, certified by the Delaware Secretary of State
on June 11, 2001;
l. Amended and Restated Bylaws as certified in the Parent
Secretary's Certificate (as hereinafter defined);
m. Certificate of Good Standing issued by the Rhode Island
Secretary of State on June 12, 2001; and
n. Certificate of Assistant Secretary of even date herewith (the
"Parent Secretary's Certificate"), relating to, among other
things, authorization to enter into the transactions
contemplated by the Parent Guaranty and execution and delivery
of the Parent Guaranty and related documents and instruments.
In these capacities, we have examined and are familiar with the
following documents relating to the Rhode Island Guarantor:
o. Certificate of Good Standing issued by the Rhode Island
Secretary of State on June 12, 2001;
p. Certificate of Incorporation dated as of August 13, 1997,
certified by the Rhode Island Secretary of State;
q. Bylaws as certified in the Rhode Island Guarantor Secretary's
Certificate (as hereinafter defined); and
r. Certificate of Assistant Secretary of even date herewith (the
"Rhode Island Guarantor Secretary's Certificate") relating to,
among other things, authorization to enter into the
transactions contemplated by the Subsidiary Guaranty and
execution and delivery of the Subsidiary Guaranty and related
documents and instruments.
In these capacities, we have examined and are familiar with the
following documents relating to the Latin America Guarantor:
s. Certificate of Good Standing issued by the Delaware Secretary
of State on June 12, 2001;
t. Certificate of Incorporation dated as of November 28, 1989,
certified by the Delaware Secretary of State;
u. Bylaws as certified in the Latin America Guarantor Secretary's
Certificate (as hereinafter defined); and
v. Certificate of Assistant Secretary of even date herewith (the
"Latin America Guarantor Secretary's Certificate") relating
to, among other things, authorization to enter into the
transactions contemplated by the Subsidiary Guaranty and
execution and delivery of the Subsidiary Guaranty and related
documents and instruments.
In addition, for purposes of giving this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
certificates of public officials, certificates of officials or other
representatives of the Obligors, and such other documents, instruments or
certificates or have made such inquiries as we have deemed appropriate as the
basis for the opinions expressed below.
We have assumed, without independent verification, that: (i) all
signatures are genuine (other than the signatures of the Obligors), (ii) the
competency of the individual signatories to the Loan Documents, (iii) all
documents submitted to us as originals are authentic, (iv) all documents
submitted to us as copies conform with the originals of those documents, (v) all
documents examined by us are accurate and complete, (vi) the legal capacity of
all persons (other than the Obligors) executing documents, (vii) the proper
indexing and accuracy of all public records and documents, and (viii) the due
issuance and validity of all laws, ordinances and regulations.
We assume for purposes of this opinion that each of the Loan Documents
has been duly authorized, executed and delivered by each person (other than the
Obligors) and constitutes a valid and binding obligation of such person,
enforceable against it in accordance with its terms. We are not expressing any
opinion as to, and hereby assume that all actions have been taken to effect your
compliance with any state or federal laws (or regulations of any political
subdivision thereof) applicable to the transactions described in the Loan
Documents. We assume throughout that you have and will exercise your rights and
remedies under the Loan Documents in good faith and in a manner which is
commercially reasonable. We assume that the Borrower has received or will
receive the proceeds of the Loan and that the proceeds will be used for the
purposes set forth in the Credit Agreement.
The opinions expressed below are made in reliance upon the accuracy of
the representations, warranties, and other information contained in the Loan
Documents and otherwise obtained during our examination of the documents and
other matters described above, including, without limitation, the facts stated
in the Certificate dated as of even date herewith executed by the Obligors, (the
"Certificate"), a copy of which is attached hereto as Exhibit A. Whenever our
opinion refers to "the best of our knowledge", it is based solely on the actual
knowledge of attorneys who are currently partners or employees of this firm and
who are directly involved in the representation of the Obligors in connection
with the transactions described in the Loan Documents. Except to the extent
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of Obligors. In particular, we advise you that we have not
searched the dockets of any court or undertaken a judgment search for judgments
against the Obligors in any jurisdiction.
The opinions hereinafter expressed are qualified to the extent that (i)
the enforceability of any agreement or instrument or any right granted
thereunder may be subject to or affected by, any bankruptcy, reorganization,
insolvency, avoidance, fraudulent conveyance, arrangement, moratorium,
marshaling or other similar laws relating to or affecting the rights of
creditors, generally, (ii) the remedy of injunctive relief, specific performance
and any other equitable remedies may be unavailable in any jurisdiction or may
be withheld as a matter of judicial discretion, (iii) the enforceability of any
agreement or instrument or any right granted thereunder may be subject to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
enforceability be considered in a proceeding in equity or in law) and to the
discretion of the court before which proceedings thereof may be brought, (iv)
the enforceability of any agreement or instrument or any right granted
thereunder may be subject to public policy considerations or court decisions
which may limit rights to obtain indemnification, (v) the enforceability of any
agreement or instrument or any right granted thereunder may be subject to the
enforceability under certain circumstances under applicable law or court
decisions of certain provisions in the Loan Documents expressly or by
implication waiving broadly or vaguely stated rights, unknown future rights,
defenses to obligations or rights granted by law, where such waivers are against
public policy or prohibited by law, and (vi) certain rights, remedies,
forfeitures, penalties, waivers or elections contained in the Loan Documents may
be rendered ineffective or limited by applicable laws or judicial decisions
governing such provisions, but the application thereof would not, in our
opinion, render the Loan Documents invalid as a whole, or render the remedies
provided for therein, taken as a whole, inadequate for the practical realization
of the benefits intended to be provided thereby.
In addition, we express no opinion: (a) as to the enforceability of any
provision providing for indemnification insofar as such indemnification would
violate public policy; (b) as to the binding effect, validity or enforceability
of any waiver of constitutional rights contained in the Loan Documents; or (c)
as to the binding effect or validity of any provision in any of the Loan
Documents which provides that delays by any of the Lenders will not operate as a
waiver.
In this regard, we are advised that you understand the potential
problems posed by the execution, delivery and performance of the Subsidiary
Guaranty by the Rhode Island Guarantor and by the Latin America Guarantor to
secure the liability of the Borrower under the Borrower Loan Documents. Although
we assume that the Rhode Island Guarantor and the Latin America Guarantor is
each receiving valuable consideration for its undertaking, the Rhode Island
Guarantor and the Latin America Guarantor is each undertaking an assumption of
liability to repay borrowings that will be utilized by the Borrower. In this
situation, if a bankruptcy proceeding or litigation involving the claims of an
unpaid creditor should be commenced against the Rhode Island Guarantor and/or
the Latin America Guarantor, there is a possibility that a trustee or creditor
of the Rhode Island Guarantor or the Latin America Guarantor will assert that
the execution and delivery of the Subsidiary Guaranty by the Rhode Island
Guarantor and by the Latin America Guarantor constituted a fraudulent
conveyance. The case law in this area is limited and not uniform, and there is a
possibility that a court could invalidate the Subsidiary Guaranty.
You have not asked us to pass upon your power and authority to enter
into the Loan Documents or to effect the transactions contemplated thereby, and
for purposes of this opinion we are assuming that each of you has all requisite
power and authority and has taken all necessary corporate action to enter into
the Loan Documents, and that each of the Loan Documents constitutes a valid and
binding obligation of you enforceable against you in accordance with its terms.
We express no opinion as to whether you must be qualified or licensed to do
business in the State of New York or the State of Rhode Island.
We have not passed on, are not passing on, and assume no responsibility
for the accuracy, completeness, or fairness of any statement, information, or
financial data furnished to you by the Obligors or any other party to the
transactions described herein. Our assumption of certain facts and
representations as set forth above does not constitute our representation that
we have independently verified such facts or representations, or the accuracy,
completeness or fairness of any statement, information, or financial data
furnished to you in this matter. We express no opinion as to the reasonableness
of our assumptions made herein, although (not having conducted any independent
investigation) nothing has come to our attention which would lead us to question
the reasonableness of any assumption made in this opinion.
We have not made or undertaken to make any investigation of the state
of title to the property described in the Loan Documents, and we express no
opinion with respect to the adequacy of the description of any real or personal
property in the Loan Documents, the state of title to such property or to the
perfection or priority of any liens created by the Loan Documents. No opinions
are expressed herein as to the compliance of any such property with any
applicable zoning, subdivision, building, safety, environmental, health,
hazardous waste, wetlands protection or other applicable laws or regulations.
We express no opinion as to the solvency of the Obligors or any other
person, and we assume for purposes of this opinion that transactions
contemplated by the Loan Documents do not render any of such persons insolvent.
We are members of the bar of the States of New York and Rhode Island,
and we express no opinion as to the laws of any state or jurisdiction other than
the States of New York and Rhode Island and the general corporate law of the
State of Delaware and federal law of the United States. We also express no
opinion as to whether a federal court (whether sitting in or outside of the
State of New York) or a state court outside of the State of New York would give
effect to the choice of New York law provided for in the Loan Documents.
Based on and subject to the foregoing, we are of the opinion that:
1. The Borrower, the Parent and the Latin America Guarantor is each a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified to transact business as a foreign
corporation and is in good standing in all other jurisdictions in which the
nature of its business requires such qualification and where the failure to be
so qualified or in good standing would have a Material Adverse Effect.
2. The Rhode Island Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Rhode Island and is
duly qualified to transact business as a foreign corporation and is in good
standing in all other jurisdictions in which the nature of its business requires
such qualification and where the failure to be so qualified or in good standing
would have a Material Adverse Effect.
3. Each of the Obligors has full corporate power and authority to own
its assets and conduct the businesses in which it is now engaged, and has full
corporate power and authority to enter into each of the Loan Documents to which
it is a party and to perform its respective obligations thereunder.
4. Each of the Borrower Loan Documents has been duly authorized by the
Board of Directors of the Borrower and executed and delivered by the Borrower,
and constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its respective terms.
5. The Parent Guaranty has been duly authorized by the Board of
Directors of the Parent and executed and delivered by the Parent, and
constitutes the legal, valid and binding obligations of the Parent, enforceable
against the Parent in accordance with its terms.
6. The Subsidiary Guaranty has been duly authorized by the Board of
Directors of the Rhode Island Guarantor and executed and delivered by the Rhode
Island Guarantor, and constitutes the legal, valid and binding obligations of
the Rhode Island Guarantor, enforceable against the Rhode Island Guarantor in
accordance with its terms.
7. The Subsidiary Guaranty has been duly authorized by the Board of
Directors of the Latin America Guarantor and executed and delivered by the Latin
America Guarantor, and constitutes the legal, valid and binding obligations of
the Latin America Guarantor, enforceable against the Latin America Guarantor in
accordance with its terms.
8. Neither the execution or delivery of, nor performance by each of the
Obligors of its respective obligations under the Loan Documents, (a) does or
will conflict with, violate or constitute a breach of (i) its charter or bylaws,
(ii) any laws, rules or regulations applicable to such Obligor which such
conflict, violation or breach would have a Material Adverse Effect, or (iii) any
contract, agreement, indenture, lease, instrument, other documents, judgment,
writ, determination, order or decree to which such Obligor is a party or by
which such Obligor or any of its properties is bound, the consequences of which
in any of the above cases would have a Material Adverse Effect, or (b) requires
the prior consent of, notice to or filing with any court or Governmental
Authority to the extent that failure thereof does not cause a Material Adverse
Effect, or (c) does or will result in the creation or imposition of any Lien,
pledge, charge or encumbrance of any nature upon or with respect to any of the
properties, real or personal, of the Obligors.
9. Except as set forth in (a) the Loan Documents, (b) the Borrower's
Form 10-K filed with the Securities and Exchange Commission for the Borrower's
fiscal year ended February 24, 2001 and (c) the Certificate, there is no pending
or, to the best of our knowledge, threatened, action, suit, investigation or
proceeding against any Obligor, nor, to the best of our knowledge, is there any
basis therefore, before or by any court or Governmental Authority, or
governmental department, commission, board, bureau, instrumentality, agency or
arbitral authority an adverse result in which would have a Material Adverse
Effect, including, without limitation, any action, suit, investigation, or
proceeding under any environmental or labor law.
10. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the Letters of Credit or the proceeds
of any Advance made to the Borrower, will violate or result in a violation of
Regulation T, U or X of the Board of Governors of the Federal Reserve System,
and, to the best of our knowledge, the Borrower does not own or intend to
purchase or carry any "margin securities" as defined in said regulations.
We render no opinion on matters except as specifically stated. This
opinion speaks as of the date of issuance, and we assume no responsibility to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in laws which may hereafter
occur.
Our opinions contained herein are rendered solely for your information
in connection with the Loan Documents and the related documents or instruments
thereto and may not be relied upon in any manner by any other person, entity or
agency, or by you for any other purpose. Without our prior written consent, our
opinions herein shall not be quoted or otherwise included, summarized or
referred to in any publication or document, in whole or in part, for any
purposes whatsoever, or furnished to any other person, entity or agency, except
(i) as may be required by you by applicable law or regulation or request of any
Governmental Authority or regulatory agencies, and (ii) pursuant to any legal
process to which you are subject or in connection with any legal action or
proceeding with respect to the Loan Documents and the related documents or
instruments thereto.
The Next Page is the Signature Page
Very truly yours,
EDWARDS & ANGELL, LLP
By: /s/ Walter G.D. Reed
------------------------------
Walter G.D. Reed, Partner
AUTHORIZATION FOR BORROWER'S, PARENT'S,
RHODE ISLAND GUARANTOR'S AND LATIN AMERICA GUARANTOR'S
COUNSEL'S OPINION
June 22, 2001
Edwards & Angell, LLP
2800 Financial Plaza
Providence, Rhode Island 02903
We have engaged you to represent us in connection with a loan
transaction with Bank of America, N.A., individually and as Administrative
Agent, The Bank of Nova Scotia, individually and as Syndication Agent, Credit
Lyonnais New York Branch, individually and as Co-Documentation Agent, and Fleet
National Bank, individually and as Co-Documentation Agent and the other Lenders
party thereto (the "Lenders"). Agent and the Lenders have requested certain
legal opinions, one of which may be given either by you as our attorney or by
the Agent's and the Lenders' attorneys. You have explained to us that under Rule
2.3 of the Rhode Island Rules of Professional Conduct you may undertake and
evaluate matters affecting us for the benefit of third parties only if you
reasonably believe that the evaluation is compatible with your representation of
us in connection with the matter and we consent after you consult with us.
You have explained to us that Agent and the Lenders have requested that
they be furnished a legal opinion by you as our attorney with respect to our
authority and status as a borrower or a guarantor, as applicable, to enter into
the loan transaction.
In addition to the authority/status opinion mentioned above, the Agent
and the Lenders require an opinion concerning the validity, binding effect or
enforceability of the loan documents or the availability of legal remedies of
the Agent and the Lenders under the loan documents. Under Section 19-9-7 of the
Rhode Island General Laws of 1956, as amended, you have advised us that we (or
you) are not required to give this opinion. If we (or you) elect not to do so,
the opinion will be furnished by counsel selected by the Agent and the Lenders
on the basis of your authority/status opinion.
Prior to 1993, when Section 19-9-7 (formerly 19-19-10) was enacted, you
have informed us, as a matter of your common practice, you regularly furnished
legal opinions for your borrowing clients that included both of the opinions
mentioned above. You have advised us that if we voluntarily authorize you to do
so, you are prepared to satisfy the requirements of the Agent and the Lenders
concerning, both opinions.
After due consultation, we hereby voluntarily authorize and request
that you prepare and submit to the Agent and the Lenders a legal opinion
satisfactory to the Agent and the Lenders in connection with our pending loan
transaction with the Agent and the Lenders combining the two opinions referred
to above. We specifically acknowledge that this authorization permits you to
opine as to the validity, binding effect or enforceability of any of the loan
documents or the availability of any legal remedies thereunder. We further
acknowledge that this authorization and request has not been required of us by
the Agent or the Lenders or by anyone on behalf of the Agent or the Lenders.
Very truly yours,
Borrower:
GTECH CORPORATION
By:
-----------------------------------------
Print Name:
------------------------------
Title:
----------------------------------
Parent:
GTECH HOLDINGS CORPORATION
By:
-----------------------------------------
Print Name:
------------------------------
Title:
----------------------------------
Rhode Island Guarantor:
GTECH RHODE ISLAND CORPORATION
By:
-----------------------------------------
Print Name:
------------------------------
Title:
----------------------------------
Signatures Continued on Next Page
Latin America Guarantor:
GTECH LATIN AMERICA CORPORATION
By:
-----------------------------------------
Print Name:
------------------------------
Title:
----------------------------------
SCHEDULE I
Bank of America, N.A., individually and as Administrative Agent for the
Lenders
Credit Lyonnais New York Branch, individually and as Co-Documentation
Agent
Fleet National Bank, individually and as Co-Documentation Agent
Citizens Bank of Rhode Island
The Bank of New York
Allied Irish Banks, p.l.c.
Key Corporate Capital, Inc.
The Bank of Nova Scotia, individually and as Syndication Agent
Commerzbank AG, New York and Grand Cayman
EXHIBIT A
Certificate of Borrower, Parent, Rhode Island Guarantor and
Latin America Guarantor
June 22, 2001
Edwards & Angell, LLP
2800 Financial Plaza
Providence, Rhode Island 02903
Ladies and Gentlemen:
In connection with the extension of the Credit Facilities to the
Borrower, which Credit Facilities are described in the opinion (the "E&A
Opinion") which you are rendering of even date to the Agent and the Lenders, the
undersigned hereby certify that:
1. Neither the execution or delivery of, nor performance by each of the
Obligors of its respective obligations under the Loan Documents, (a) does or
will conflict with, violate or constitute a breach of (i) any laws, rules or
regulations applicable to such Obligor which such conflict, violation or breach
would have a Material Adverse Effect, or (ii) any contract, agreement,
indenture, lease, instrument, other documents, judgment, writ, determination,
order or decree to which such Obligor is a party or by which such Obligor or any
of its properties is bound, the consequences of which in any of the above cases
would have a Material Adverse Effect, or (b) requires the prior consent of,
notice to or filing with any court or Governmental Authority to the extent that
failure thereof does not cause a Material Adverse Effect, or (c) does or will
result in the creation or imposition of any Lien, pledge, charge or encumbrance
of any nature upon or with respect to any of the properties, real or personal,
of the Obligors.
2. Except as set forth in (a) the Loan Documents and (b) the Borrower's
Form 10-K filed with the Securities and Exchange Commission for the Borrower's
fiscal year ended February 24, 2001, there is no pending or threatened, action,
suit, investigation or proceeding against any Obligor, nor, is there any basis
therefore, before or by any court or Governmental Authority, or governmental
department, commission, board, bureau, instrumentality, agency or arbitral
authority an adverse result in which would have a Material Adverse Effect,
including, without limitation, any action, suit, investigation, or proceeding
under any environmental or labor law.
3. The Borrower does not own or intend to purchase or carry any "margin
securities" as defined in Regulation U with the proceeds of the Credit
Facilities.
4. The following states are the only ones where an Obligor needs to be
qualified to transact business as a foreign corporation in which the nature of
its business may require such qualification and where the failure to be so
qualified or in good standing could reasonably be expected to have a Material
Adverse Effect:
Borrower: California, Georgia, New York, Texas
Terms not defined herein shall have the same meanings as in the E&A
opinion.
Very truly yours,
Borrower:
GTECH CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Parent:
GTECH HOLDING CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Rhode Island Guarantor:
GTECH RHODE ISLAND CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Signatures Continued on Next Page
Latin America Guarantor:
GTECH LATIN AMERICA CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
EXHIBIT H
COMPLIANCE CERTIFICATE
[Bank of America, N.A.,
as Administrative Agent
101 North Tryon Street, 15th Floor
NC1-001-15-14
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 409-0296
[Bank of America, N.A.,
as Administrative Agent
Independence Center, 15th Floor
Charlotte, North Carolina 28255
Telephone: (704) 388-3917
Telefacsimile: (704) 386-9923
Attention: Dana Weir, Agency Services]
Reference is hereby made to the Credit Agreement dated as of ______ __,
2001 (the "Agreement") among GTECH Corporation, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement) and Bank of America,
N.A., as Agent for the Lenders ("Agent"), The Bank of Nova Scotia, as
Syndication Agent, Credit Lyonnais New York Branch, as Co-Documentation Agent,
and Fleet National Bank, as Co-Documentation Agent. Capitalized terms used but
not otherwise defined herein shall have the respective meanings therefor set
forth in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with Section 9.1 of the Credit Agreement:
Consolidated Shareholders' Equity
1. Consolidated Shareholders' Equity
required at the end of immediately
preceding fiscal quarter $_____________
2. 50% of Consolidated Net Income
for such fiscal quarter $_____________
100% of the aggregate amount of increases
in stated capital and additional paid-in
capital accounts resulting from issuance of equity
securities or other capital investments
during such fiscal quarter $_____________
4. Sum of 1. plus 2. plus 3. $_____________
Required: Consolidated Shareholders' Equity as of the last day
of such fiscal quarter must exceed line A.4.
B. Compliance with Section 9.1(b): Consolidated Total Debt Ratio
1. Consolidated Total Indebtedness $_____________
2. Consolidated EBITDA
a. Consolidated Net Income (as calculated
in the definition thereof, excluding
extraordinary gains and losses) $_____________
b. Consolidated Interest Expense (as
calculated in the definition thereof) $_________
c. Taxes on income $_________
d. Amortization and depreciation $_________
e. other non-cash expenses $_________
f. Consolidated EBITDA
(sum of a. through e.) $_________
3. Consolidated Leverage Ratio: Ratio of Consolidated Total
Indebtedness (B.1.) to Consolidated EBITDA (B.2.) is ____ to
1.00.
Required: The Consolidated Debt Ratio for such Four-Quarter
Period must not be greater than 2.25 to 1:00
C. Compliance with Section 9.1(c): Consolidated Interest Coverage
Ratio
1. Consolidated EBITDA (from B.2., above) $_____________
2. Consolidated Interest Expense $_________
3. The ratio of the Consolidated EBITDA (C.1.) to
Consolidated Interest Expense (C.2.) is ______ to
1.00.
Required: The Consolidated Interest Coverage Ratio such
Four-Quarter Period must not be less than 5.00 to 1.00.
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of Default
specified in Article X of the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrower
proposes to take the following action with respect to such Default or
Event of Default: _______________________________. (Note, if no Default
or Event of Default has occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 2___.
By:
-----------------------------------------
Authorized Representative
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT I
FORM OF FACILITY GUARANTY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
_________ __, 2___, is made by EACH OF THE UNDERSIGNED (each a "Guarantor" and
collectively the "Guarantors") to BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, as agent
(in such capacity, the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
________________________ (the "Borrower") certain credit facilities, including a
revolving credit facility with a letter of credit and swing line sublimit
pursuant to the terms of that certain Credit Agreement dated as of June 22,
2001, among the Borrower, the Agent, The Bank of Nova Scotia, as Syndication
Agent, Credit Lyonnais New York Branch, as Co-Documentation Agent, Fleet
National Bank, as Co-Documentation Agent and the Lenders (as from time to time
amended, modified, supplemented or restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is [the Parent] [, directly or indirectly, a
wholly owned Subsidiary] of the Borrower and will materially benefit from the
Loans and Advances made and to be made, and the Letters of Credit issued and to
be issued, under the Credit Agreement; and
WHEREAS, each Guarantor is required to enter into this Guaranty
Agreement pursuant to the terms of the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Secured Parties was the obligation of the Borrower to cause each Guarantor
to enter into this Guaranty Agreement, and the Secured Parties are unwilling to
extend and maintain the credit facilities provided under the Loan Documents
unless the Guarantors enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Guaranty. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the Agent
for the benefit of the Secured Parties the payment and performance in full of
the Borrower's Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Borrower's Liabilities" means: (a) the Borrower's prompt payment in
full, when due or declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the Notes, and all
other Loan Documents heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Borrower to any one or more of the Secured
Parties, including principal, interest, premiums and fees (including, but not
limited to, loan fees and attorneys' fees and expenses); (b) the Borrower's
prompt, full and faithful performance, observance and discharge of each and
every agreement, undertaking, covenant and provision to be performed, observed
or discharged by the Borrower under the Credit Agreement and all other Loan
Documents; and (c) the Borrower's prompt payment in full, when due or declared
due and at all such times, of Rate Hedging Obligations now or hereafter arising
under Swap Agreements. The Guarantors' obligations to the Secured Parties under
this Guaranty Agreement are hereinafter collectively referred to as the
"Guarantors' Obligations" and, with respect to each Guarantor individually, the
"Guarantor's Obligations". Notwithstanding the foregoing, the liability of each
Guarantor individually with respect to its Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
2. Payment. If the Borrower shall default in payment or performance of
any of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the Credit Agreement,
by acceleration, or otherwise, or upon the occurrence and during the continuance
of any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Agent, fully pay to the Agent, for
the benefit of the Secured Parties, subject to any restriction on each
Guarantor's Obligations set forth in Section 1 hereof, an amount equal to all
the Borrower's Liabilities then due and owing.
3. Absolute Rights and Obligations. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty Agreement and any other Loan Documents to
which it is a party by reason of:
(a) any lack of legality, validity or enforceability of the Credit
Agreement, of any of the Notes, of any other Loan Document, or of any other
agreement or instrument creating, providing security for, or otherwise relating
to any of the Guarantors' Obligations, any of the Borrower's Liabilities, or any
other guaranty of any of the Borrower's Liabilities (the Loan Documents and all
such other agreements and instruments being collectively referred to as the
"Related Agreements");
(b) any action taken under any of the Related Agreements, any exercise
of any right or power therein conferred, any failure or omission to enforce any
right conferred thereby, or any waiver of any covenant or condition therein
provided;
(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or of any
other obligations or liabilities of any Person under any of the Related
Agreements;
(d) any release, exchange, non-perfection, lapse in perfection,
disposal, deterioration in value, or impairment of any security for any of the
Borrower's Liabilities, for any of the Guarantor's Obligations of any Guarantor,
or for any other obligations or liabilities of any Person under any of the
Related Agreements;
(e) any dissolution of the Borrower or any Guarantor or any other party
to a Related Agreement, or the combination or consolidation of the Borrower or
any Guarantor or any other party to a Related Agreement into or with another
entity or any transfer or disposition of any assets of the Borrower or any
Guarantor or any other party to a Related Agreement;
(f) any extension (including without limitation extensions of time for
payment), renewal, amendment, restructuring or restatement of, and any
acceptance of late or partial payments under, the Credit Agreement, any of the
Notes or any other Loan Document or any other Related Agreement, in whole or in
part;
(g) the existence, addition, modification, termination, reduction or
impairment of value, or release of any other guaranty (or security therefor) of
the Borrower's Liabilities (including without limitation the Guarantor's
Obligations of any other Guarantor and obligations arising under any other
Facility Guaranty now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other consent to
any change in or departure from any term or provision contained in the Credit
Agreement, any other Loan Document or any other Related Agreement, including
without limitation any term pertaining to the payment or performance of any of
the Borrower's Liabilities, any of the Guarantor's Obligations of any other
Guarantor, or any of the obligations or liabilities of any party to any other
Related Agreement;
(i) any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of such Guarantor, or might otherwise constitute a legal or
equitable defense available to, or discharge of, a surety or a guarantor,
including without limitation any right to require or claim that resort be had to
the Borrower or any other Credit Party or to any collateral in respect of the
Borrower's Liabilities or Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this
Guaranty Agreement and the Guarantors' Obligations hereunder shall be absolute
and unconditional under any and all circumstances and shall not be discharged
except by payment as herein provided.
4. Currency and Funds of Payment. All Guarantors' Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower's Liabilities, or the rights
of any Secured Party with respect thereto as against the Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
the Borrower of any or all of the Borrower's Liabilities.
5. Events of Default. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit support
for the Borrower's Liabilities, at the Agent's election and without notice
thereof or demand therefor, the Guarantors' Obligations shall immediately be and
become due and payable.
6. Subordination. Until this Guaranty Agreement is terminated in
accordance with Section 23 hereof, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to such Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Credit Party, to the payment in full of the obligations of such
Credit Party owing to any Secured Party and arising under the Loan Documents.
All amounts due under such subordinated debts, liabilities, or obligations
shall, upon the occurrence and during the continuance of an Event of Default, be
collected and, upon request by the Agent, paid over forthwith to the Agent for
the benefit of the Secured Parties on account of the Borrower's Liabilities, the
Guarantors' Obligations, or such other obligations, as applicable, and, after
such request and pending such payment, shall be held by such Guarantor as agent
and bailee of the Secured Parties separate and apart from all other funds,
property and accounts of such Guarantor.
7. Suits. Each Guarantor from time to time shall pay to the Agent for
the benefit of the Secured Parties, on demand, at the Agent's place of business
set forth in the Credit Agreement or such other address as the Agent shall give
notice of to such Guarantor, the Guarantors' Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Agent may
proceed to suit against any one or more or all of the Guarantors. At the Agent's
election, one or more and successive or concurrent suits may be brought hereon
by the Agent against any one or more or all of the Guarantors, whether or not
suit has been commenced against the Borrower, any other Guarantor, or any other
Person and whether or not the Secured Parties have taken or failed to take any
other action to collect all or any portion of the Borrower's Liabilities or have
taken or failed to take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
8. Set-Off and Waiver. Each Guarantor waives any right to assert
against any Secured Party as a defense, counterclaim, set-off, recoupment or
cross claim, any defense (legal or equitable) or other claim which such
Guarantor may now or at any time hereafter have against the Borrower or the
Secured Parties without waiving any additional defenses, set-offs, counterclaims
or other claims otherwise available to such Guarantor. Each Guarantor agrees
that each Secured Party shall have a lien for all the Guarantor's Obligations
upon all deposits or deposit accounts, of any kind, or any interest in any
deposits or deposit accounts, now or hereafter pledged, mortgaged, transferred
or assigned to such Secured Party or otherwise in the possession or control of
such Secured Party for any purpose (other than solely for safekeeping) for the
account or benefit of such Guarantor, including any balance of any deposit
account or of any credit of such Guarantor with the Secured Party, whether now
existing or hereafter established, and hereby authorizes each Secured Party from
and after the occurrence and continuation of an Event of Default at any time or
times with or without prior notice to apply such balances or any part thereof to
such of the Guarantor's Obligations to the Secured Parties then due and in such
amounts as provided for in the Credit Agreement or otherwise as they may elect.
For the purposes of this Section 8, all remittances and property shall be deemed
to be in the possession of a Secured Party as soon as the same may be put in
transit to it by mail or carrier or by other bailee.
9. Waiver of Notice; Subrogation.
(a) Each Guarantor hereby waives to the extent permitted by
law notice of the following events or occurrences: (i) acceptance of
this Guaranty Agreement; (ii) the Lenders' heretofore, now or from time
to time hereafter making Loans and issuing Letters of Credit and
otherwise loaning monies or giving or extending credit to or for the
benefit of the Borrower, whether pursuant to the Credit Agreement or
the Notes or any other Loan Document or Related Agreement or any
amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) presentment, demand, default, non-payment,
partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof. Each Guarantor agrees that
each Secured Party may heretofore, now or at any time hereafter do any
or all of the foregoing in such manner, upon such terms and at such
times as each Secured Party, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing
or releasing such Guarantor from its Guarantor's Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or performance
by such Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by the Agent on behalf of the Secured Parties
upon demand by the Agent to such Guarantor without the Agent being
required, such Guarantor expressly waiving to the extent permitted by
law any right it may have to require the Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the
Borrower or any other Guarantor or any other guarantor of the
Borrower's Liabilities, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances
granted to the Agent or any Lender or other party to a Related
Agreement by the Borrower, any other Guarantor or any other Person on
account of the Borrower's Liabilities or any guaranty thereof, IT BEING
EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT
DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE AGENT, AT ANY TIME AFTER ANY EVENT OF
DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.
(c) Each Guarantor further agrees with respect to this
Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to
security for the Borrower's Liabilities unless and until 93 days
immediately following the Facility Termination Date shall have elapsed
without the filing or commencement, by or against any Credit Party, of
any state or federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect
of creditors of, or the appointment of a receiver, liquidator, trustee
or conservator in respect to, such Credit Party or its assets. This
waiver is expressly intended to prevent the existence of any claim in
respect to such subrogation, reimbursement, contribution or indemnity
by any Guarantor against the estate of any other Credit Party within
the meaning of Section 101 of the Bankruptcy Code, in the event of a
subsequent case involving any other Credit Party. If an amount shall be
paid to any Guarantor on account of such rights at any time during the
continuance of an Event of Default prior to termination of this
Guaranty Agreement in accordance with the provisions of Section 23
hereof, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Agent, for the
benefit of the Secured Parties, to be credited and applied upon the
Guarantors' Obligations, whether matured or unmatured, in accordance
with the terms of the Credit Agreement or otherwise as the Secured
Parties may elect. The agreements in this subsection shall survive
repayment of all of the Guarantors' Obligations, the termination or
expiration of this Guaranty Agreement in any manner, including but not
limited to termination in accordance with Section 23 hereof, and
occurrence of the Facility Termination Date.
10. Effectiveness; Enforceability. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 23 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by the Agent on behalf
of the Secured Parties by written notice directed to such Guarantor in
accordance with Section 25 hereof.
11. Representations and Warranties. Each Guarantor warrants and
represents to the Agent, for the benefit of the Secured Parties, that (a) it is
a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has the requisite power and authority to
(i) own its properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, and (ii) to execute,
deliver and perform this Guaranty Agreement, (b) it is qualified to do business
and in good standing in every jurisdiction in which failure to be so qualified
or in good standing could reasonably be expected to have a Material Adverse
Effect, (c) it is duly authorized to execute, deliver and perform this Guaranty
Agreement; that this Guaranty Agreement has been duly executed and delivered on
behalf of such Guarantor by its duly authorized representatives, (d) this
Guaranty Agreement is legal, valid, binding and enforceable against such
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles, and (e) such Guarantor's execution, delivery and performance of this
Guaranty Agreement do not violate or constitute a breach of any of its Operating
Documents or Organizational Documents, any agreement or instrument to which such
Guarantor is a party, or any law, order, regulation, decree or award of any
Governmental Authority or arbitral body to which it or its properties or
operations is subject.
12. Expenses. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including attorneys' fees,
incurred by any Secured Party in connection with the enforcement of this
Guaranty Agreement, whether or not suit be brought.
13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Borrower's Liabilities
is rescinded or must be restored for any reason, or is repaid by any Secured
Party in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
14. Attorney-in-Fact. To the extent permitted by law, each Guarantor
hereby appoints the Agent, for the benefit of the Secured Parties, as such
Guarantor's attorney-in-fact for the purposes of carrying out the provisions of
this Guaranty Agreement and taking any action and executing any instrument which
the Agent may deem necessary or advisable to accomplish the purposes hereof,
which appointment is coupled with an interest and is irrevocable; provided, that
the Agent shall have and may exercise rights under this power of attorney only
upon the occurrence and during the continuance of an Event of Default.
15. Reliance. Each Guarantor represents and warrants to the Agent, for
the benefit of the Secured Parties, that: (a) such Guarantor has adequate means
to obtain on a continuing basis (i) from the Borrower, information concerning
the Borrower and the Borrower's financial condition and affairs and (ii) from
other reliable sources, such other information as it deems material in deciding
to provide this Guaranty Agreement ("Other Information"), and has full and
complete access to the Borrower's books and records and to such Other
Information; (b) such Guarantor is not relying on any Secured Party or its or
their employees, directors, agents or other representatives or affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other
Loan Documents as it has requested, is executing this Guaranty Agreement freely
and deliberately, and understands the obligations and financial risk undertaken
by providing this Guaranty Agreement; (d) such Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and analysis of the
Borrower, the Borrower's financial condition and affairs, the "Other
Information", and such other matters as it deems material in deciding to provide
this Guaranty Agreement and is fully aware of the same; and (e) such Guarantor
has not depended or relied on any Secured Party or its or their employees,
directors, agents or other representatives or affiliates, for any information
whatsoever concerning the Borrower or the Borrower's financial condition and
affairs or any other matters material to such Guarantor's decision to provide
this Guaranty Agreement, or for any counseling, guidance, or special
consideration or any promise therefor with respect to such decision. Each
Guarantor agrees that no Secured Party has any duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information
concerning the Borrower or the Borrower's financial condition and affairs, or
any Other Information, other than as expressly provided herein, and that, if
such Guarantor receives any such information from any Secured Party or its or
their employees, directors, agents or other representatives or affiliates, such
Guarantor will independently verify the information and will not rely on any
Secured Party or its or their employees, directors, agents or other
representatives or affiliates, with respect to such information.
16. Rules of Interpretation. The rules of interpretation contained in
Sections 1.2(c) through 1.2(l) of the Credit Agreement shall be applicable to
this Guaranty Agreement and are hereby incorporated by reference. All
representations and warranties contained herein shall survive the delivery of
documents and any extension of credit referred to herein or guaranteed hereby.
17. Entire Agreement. This Guaranty Agreement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Except as provided in Section 23, neither this Guaranty Agreement nor
any portion or provision hereof may be changed, altered, modified, supplemented,
discharged, canceled, terminated, or amended orally or in any manner other than
as provided in the Credit Agreement.
18. Binding Agreement; Assignment. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective heirs, legal
representatives, successors and assigns; provided, however, that no Guarantor
shall be permitted to assign any of its rights, powers, duties or obligations
under this Guaranty Agreement or any other interest herein without the prior
written consent of the Agent. Without limiting the generality of the foregoing
sentence of this Section 18, any Lender may assign to one or more Persons, or
grant to one or more Persons participations in or to, all or any part of its
rights and obligations under the Credit Agreement (to the extent permitted by
the Credit Agreement); and to the extent of any such assignment or participation
such other Person shall, to the fullest extent permitted by law, thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, subject however, to the provisions of the Credit Agreement,
including Article XI thereof (concerning the Agent) and Section 12.1 thereof
concerning assignments and participations. All references herein to the Agent
shall include any successor thereof.
19. Swap Agreements. All obligations of the Borrower under Swap
Agreements to which any Lender or its affiliates are a party shall be deemed to
be Borrower's Liabilities, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party hereunder with respect
to such Borrower's Liabilities; provided, however, that such obligations shall
cease to be Borrower's Liabilities at such time as such Person (or affiliate of
such Person) shall cease to be a "Lender" under the Credit Agreement.
20. Severability. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
21. Counterparts. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought.
22. Indemnification. Without limitation of Section 12.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, each
Guarantor agrees to indemnify and hold harmless each Secured Party and each of
their affiliates and their respective officers, directors, employees, agents,
and advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans or other
extension of credit under the Loan Documents [(including any of the foregoing
arising from the negligence of the Indemnified Party)], except to the extent
such claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 22 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by such Guarantor or any
other Credit Party, any of their respective directors, shareholders or
creditors, or an Indemnified Party or any other Person, or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. Each Guarantor agrees that no Indemnified Party shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to it, any of its subsidiaries or affiliates, or any security holders
or creditors thereof arising out of, related to or in connection with the
transactions contemplated herein, except to the extent that such liability is
found in a final non-appealable judgment by a court of competent jurisdiction to
have directly resulted from such Indemnified Party's gross negligence or willful
misconduct. Each Guarantor agrees not to assert any claim against any Secured
Party, any of its affiliates, or any of their directors, officers, employees,
attorneys, agents, or advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated therein or
the actual or proposed use of the proceeds of the Loans or other extension of
credit under the Loan Documents. The agreements in this Section 22 shall survive
repayment of all of the Guarantors' Obligations and the termination or
expiration of this Guaranty Agreement in any manner, including but not limited
to termination upon occurrence of the Facility Termination Date.
23. Termination. Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and all of the Guarantors' Obligations hereunder
(excluding those obligations and liabilities that expressly survive such
termination) shall terminate on the Facility Termination Date.
24. Remedies Cumulative; Late Payments. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the Agent
or any other Secured Party provided by law or under the Credit Agreement, the
other Loan Documents or other applicable agreements or instruments. The making
of the Loans and other extensions of credit to the Borrower pursuant to the
Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon each Guarantor's guaranty of the Borrower's
Liabilities pursuant to the terms hereof. Any amounts not paid when due under
this Guaranty Agreement shall bear interest at the Default Rate.
25. Notices. Any notice required or permitted hereunder shall be given,
(a) with respect to each Guarantor, at the address [of the Borrower indicated in
Section 12.2 of the Credit Agreement] [at the address for such Guarantor set
forth below its signature on this Guaranty Agreement] and (b) with respect to
the Agent or any other Secured Party, at the Agent's address indicated in
Section 12.2 of the Credit Agreement. All such addresses may be modified, and
all such notices shall be given and shall be effective, as provided in Section
12.2 of the Credit Agreement.
26. Governing Law; Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, SUCH GUARANTOR EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH GUARANTOR
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
GUARANTOR IN EFFECT PURSUANT TO SECTION 25 HEREOF, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE THE AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, EACH GUARANTOR AND THE AGENT ON
BEHALF OF THE SECURED PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT
MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT
TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Guaranty Agreement as of the day and year first written above.
GUARANTORS:
---------------------------------------------
WITNESS:
By:
------------------------------------------
Name:
- ---------------------------- ----------------------------------------
Title:
- ---------------------------- ---------------------------------------
[Address for Notices:
-----------------------------------
-----------------------------------
-----------------------------------
Telefacsimile: (___) ___-____]
[Complete if Borrower's address is not to be
used pursuant to Section 25]
AGENT:
BANK OF AMERICA, N.A., as Agent for the
Lenders
By:
------------------------------------------
Name:
----------------------------------------
Title:
--------------------------------------
EXHIBIT J
FORM OF CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made this _____ day of __________, 20__ by and between
GTECH CORPORATION with its principal office at 55 Technology Way, West
Greenwich, Rhode Island 02817 (GTECH CORPORATION and any affiliates and
subsidiaries are referred to hereinafter as "GTECH") and
___________________________________ with offices at
___________________________________ (referred to hereinafter as the "Potential
Transferee").
WHEREAS, GTECH creates, develops, manufacturers and markets various
goods, including without limitation computerized gaming systems and the
components thereof (hardware and software included), and services, including
without limitation implementation, modification, promotion, and maintenance of
such systems; and
WHEREAS, GTECH is a party to that certain Credit Agreement
dated________________ ___, 2001, among GTECH Corporation, the Lenders which are
parties thereto (the "Lenders"), and Bank of America, N.A., in its capacity as
Administrative Agent for the Lenders (as amended or supplemented and in effect
from time to time, the "Credit Agreement") (capitalized terms not otherwise
defined herein shall have the same meaning as set forth in the Credit
Agreement); and
WHEREAS, the Potential Transferee is interested in exploring the
possibility of becoming a participant and/or an assignee (a "Transferee")
pursuant to Section 12.1 of the Credit Agreement (hereinafter referred to as
"Explorations"); and
WHEREAS, the Lender proposing to transfer a portion of its rights and
obligations under the Loan Documents (the "Transferor Lender") is permitted,
pursuant to Section 12.1(f) of the Credit Agreement, to disclose certain
information respecting GTECH, subject to the execution and delivery by the
Potential Transferee of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the promises
and covenants herein contained, the parties agree as follows:
1. The parties acknowledge that, as used in this Agreement, the
term "Confidential Information" means all financial
information in the Transferor Lender's possession concerning
GTECH and its affiliates which has been delivered to the
Transferor Lender by or on behalf of GTECH pursuant to the
Credit Agreement or which has been delivered to the Transferor
Lender by or on behalf of GTECH in connection with the
Transferor Lender's credit evaluations of GTECH and its
affiliates prior to becoming a party to the Credit Agreement,
and which is disclosed to the Potential Transferee by the
Transferor Lender under or in connection with Explorations.
Confidential Information does not include, without limitation,
information which is:
(a) in the public domain;
(b) already known to the Potential Transferee at the time
of such disclosure;
(c) subsequently received by the Potential Transferee in
good faith from a third party who is not known to the
Potential Transferee to be bound by a confidentiality
agreement with GTECH or known to the Potential
Transferee to be otherwise prohibited from
transmitting the information to the Potential
Transferee by a contractual, legal or fiduciary
obligation;
(d) independently generated by the Potential Transferee;
or
(e) approved for release or disclosure by GTECH in a
separate writing.
2. Except as necessary to conduct Explorations, the Potential
Transferee shall keep confidential and never disclose any
Confidential Information unless GTECH has, in its sole
discretion, previously and expressly consented to such use,
duplication or disclosure in writing. The Potential Transferee
may disclose such Confidential Information to: (a) those
directors, officers, employees, agents, accountants and
attorneys of the Potential Transferee whose knowledge is
necessary to conduct the Explorations, provided that all such
persons shall be advised of their obligations to protect
GTECH's interest, which obligations shall be identical to
those of the Potential Transferee under this Agreement; (b)
examiners or regulatory agencies having supervisory or
examination authority over the Potential Transferee in
accordance with customary banking practices; and (c) any
person pursuant to the order of any Governmental Authority or
as otherwise required by law.
3. The parties acknowledge and agree that:
(a) All Confidential Information disclosed by or
belonging to GTECH is and shall remain the exclusive
and valuable property of GTECH;
(b) The Potential Transferee does not hereby obtain any
license or other interest in or to Confidential
Information or the subjects thereof; and
(c) At GTECH's request, and in any event upon the
completion of the Explorations, the Potential
Transferee shall promptly deliver to GTECH all
records or other things in any media containing or
embodying Confidential Information which were
delivered or made available to the Potential
Transferee during or in connection with Explorations,
including any copies thereof, and any other
Confidential Information retained by the Potential
Transferee will be either destroyed by the Potential
Transferee or, to the extent such Potential
Transferee shall have become a Lender (or a
participant of a Lender), held by the Potential
Transferee subject to the terms of Section 12.14 of
the Credit Agreement.
4. (a) The Potential Transferee acknowledges that the
restrictions on the use, duplication and disclosure of GTECH's
Confidential Information set forth herein are reasonable to
protect GTECH's business interests. If any provision hereof is
held invalid under any applicable rule of law such invalidity
shall not affect other provisions hereof which can be given
effect without the invalid provisions, and to this end the
provisions hereof are declared to be severable. The above
notwithstanding, any such invalid provisions shall be
construed and enforced (to the extent possible) in accordance
with the original intent of the parties as herein expressed.
(b) This Agreement shall not be modified except in
writing signed by both parties hereto.
(c) No waiver of any provisions of the Agreement shall be
effective unless agreed to in writing by the party
against whom such waiver is sought to be enforced.
Waiver of any default or breach hereunder shall not
constitute a waiver of any other default or breach
whether similar or otherwise.
(d) The validity, interpretation, and enforcement of this
Agreement shall be governed by the laws of the State
of New York other than any rule which might refer
such matters to the laws of any other jurisdiction.
(e) The provisions of this Agreement shall indefinitely
survive the termination of the Explorations;
provided, however, if the Potential Transferee shall
become a Lender (or a participant of a Lender), the
provisions of this Agreement shall be superseded by
Section 12.14 of the Credit Agreement.
(f) This Agreement shall be binding upon and inure to the
benefit of GTECH, its legal representatives and
successors; and the Potential Transferee, its legal
representatives and successors.
IN WITNESS WHEREOF the parties have by their duly authorized
representatives executed this Agreement as of the date first written above.
GTECH CORPORATION Potential Transferee
By By
-------------------------------- ---------------------------------
Signature Signature
- ---------------------------------- ------------------------------------
Name (Print or Type) Name (Print or Type)
- ---------------------------------- ------------------------------------
Title Title
- ---------------------------------- ------------------------------------
Date Date
Schedule 7.4
Material Subsidiaries
GTECH Rhode Island Corporation, a Rhode Island corporation
o 1,000 shares authorized
o 1,000 shares issued, all to GTECH Corporation
GTECH Latin America Corporation, a Delaware corporation
o 8,000 shares authorized
o 100 shares issued, all to GTECH Corporation
GTECH Brasil LTDA, a company organized under the laws of Brazil
o __________ shares authorized
o __________ shares issued, all to GTECH Corporation
Schedule 7.6
Indebtedness
None.
Schedule 7.7
Liens
None.
Schedule 7.8
Tax Matters
None.
Schedule 7.18
Environmental Matters
None.