EXHIBIT A
APPLICABLE COMMITMENT PERCENTAGES
Applicable Commitment
Lender Revolving Credit Commitment Percentage
- ------------------------------------------ ---------------------------------- ------------------------------
Bank of America, N.A $ 74,000,000 14.800000000%
Calyon New York Branch $ 74,000,000 14.800000000%
KeyBank National Association $ 64,000,000 12.800000000%
The Bank of Nova Scotia $ 64,000,000 12.800000000%
Wachovia Bank, N.A $ 64,000,000 12.800000000%
Commerzbank AG, New York and Grand Cayman $ 40,000,000 8.000000000%
Branches
Citizens Bank of Rhode Island $ 40,000,000 8.000000000%
Fifth Third Bank $ 40,000,000 8.000000000%
SunTrust Bank $ 40,000,000 8.000000000%
------------ -------------
Total $500,000,000 100.000000000%
EXHIBIT B
FORM
OF
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Agent as contemplated below (i) all of the Assignor's rights and obligations as
a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including,
without limitation, the Letters of Credit and Swing Line Loans included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate of
[identify Lender]]
3. Borrower: GTECH Corporation, a Delaware corporation
4. Administrative Agent: Bank of America, N. A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of October 25, 2004, as
amended, restated, supplemented or otherwise modified from time to
time, among the Borrower, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer
6. Assigned Interest:
Aggregate Amount of Percentage
Commitment/ Amount of Commitment/ Assigned of
Facility Assigned Loans for all Lenders* Loans Assigned* Commitment/Loans CUSIP No.
----------------- --------------------- -------------- ---------------- ---------
------------- $--------------- $--------------- --------------% -------------
------------- $--------------- $--------------- --------------% -------------
------------- $--------------- $--------------- --------------% -------------
[7. Trade Date: __________________]
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
* Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR:
---------
[NAME OF ASSIGNOR]
By:
--------------------------------------------
Title:
ASSIGNEE:
---------
[NAME OF ASSIGNEE]
By:
--------------------------------------------
Title:
[Consented to and] Accepted:
Bank of America, N. A., as
Administrative Agent
By:
-------------------------------------------------
Title:
[Consented to:]
By:
-------------------------------------------------
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, and
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 8.1 thereof, as
applicable, 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 Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on Agent or any other Lender; and (b) agrees that (i) it will, independently and
without reliance on Agent, the Assignor or any other Lender, and based on 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 Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, Agent shall make all
payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued
to but excluding the Effective Date and to the Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
EXHIBIT C
NOTICE OF APPOINTMENT (OR REVOCATION) OF AUTHORIZED REPRESENTATIVE
Reference is hereby made to the Credit Agreement dated as of October
25, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement") among GTECH Corporation, a Delaware
corporation (the "Borrower"), the Lenders from time to time party thereto (as
defined in the Agreement), and Bank of America, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent") and as Swing Line Lender and L/C
Issuer. 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
------------------------- ----------------------- ------------------------------
-------------------------
-------------------------
------------------------- ----------------------- ------------------------------
-------------------------
-------------------------
The Borrower hereby revokes (effective upon receipt hereof by the Agent) the
prior appointment of ________________ as an Authorized Representative.
Executed as of this the ___ day of October, 2004.
GTECH CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT D-1
FORM OF BORROWING NOTICE
To: Bank of America, N.A., as Administrative Agent
One Independence Center
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Donna Dunn
Reference is hereby made to the Credit Agreement dated as of October
25, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement") among GTECH Corporation, a Delaware
corporation (the "Borrower"), the Lenders from time to time party thereto (as
defined in the Agreement), and Bank of America, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent") and as Swing Line Lender and L/C
Issuer. 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
(circle 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, subject to
availability, nine 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; and on a
Business Day for all Loans.
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 (a) the representations and warranties set forth in Sections 7.4 and 7.6 of
the Agreement are deemed to include and take into account any merger or
consolidation permitted under Section 9.6 of the Agreement and (b) 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., as Administrative Agent
One Independence Center
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Donna Dunn
Reference is hereby made to the Credit Agreement dated as of October
25, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement") among GTECH Corporation, a Delaware
corporation (the "Borrower"), the Lenders from time to time party thereto (as
defined in the Agreement), and Bank of America, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent") and as Swing Line Lender and L/C
Issuer. 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 Swing Line Lender that a Swing Line Loan of the amount set forth below be
made on the date indicated:
1. On _________________________ (a Business Day).
2. In the amount of $_______________.(1)
(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 (a) the representations and warranties set forth in Sections 7.4 and 7.6 of
the Agreement are deemed to include and take into account any merger or
consolidation permitted under Section 9.6 of the Agreement and (b) 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 E
FORM OF INTEREST RATE SELECTION NOTICE
To: Bank of America, N.A., as Administrative Agent
One Independence Center
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Donna Dunn
Reference is hereby made to the Credit Agreement dated as of October
25, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement") among GTECH Corporation, a Delaware
corporation (the "Borrower"), the Lenders from time to time party thereto (as
defined in the Agreement), and Bank of America, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Agent") and as Swing Line Lender and L/C
Issuer. 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
(circle 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, subject to
availability, nine 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; and on a
Business Day for all Loans.
GTECH CORPORATION
BY:
------------------------------------
Authorized Representative
DATE:
----------------------------------
EXHIBIT F-1
FORM OF REVOLVING NOTE
Promissory Note
(Revolving Loan)
$______________________ October 25, 2004
FOR VALUE RECEIVED, GTECH Corporation, a Delaware corporation having
its principal place of business located in West Greenwich, Rhode Island (the
"Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, in accordance with the provisions of the Credit Agreement
dated as of October 25, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Agreement"; all capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Agreement)
among the Borrower, the financial institutions party thereto (collectively, the
"Lenders"), and Bank of America, N.A., as administrative agent for the Lenders
(in such capacity, the "Agent"), Swing Line Lender and L/C Issuer, in lawful
money of the United States of America, in immediately available funds, the
principal amount of ______________________________ ____________________________
($_____________) 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 at the
Principal Office, 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 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.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times 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 Revolving 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. 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)
$40,000,000 October 25, 2004
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, in accordance with the provisions of
the Credit Agreement dated as of October 25, 2004 (as amended, restated,
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) among the Borrower, the financial
institutions party thereto (collectively, the "Lenders"), and Bank of America,
N.A., as administrative agent for the Lenders (in such capacity, the "Agent"),
Swing Line Lender and L/C Issuer, in lawful money of the United States of
America, in immediately available funds, the principal amount of FORTY MILLION
AND NO/100 DOLLARS ($40,000,000) 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 the Principal 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 Swing Line 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 Swing Line 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.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement.
This Swing Line 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 Swing Line Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement. Payment of
all amounts due under this Swing Line Note is guaranteed by each Guarantor
pursuant to the Facility Guaranties.
This Swing Line 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. 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 Swing Line 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
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should
be covered by the legal opinion on behalf of the Borrower:
o Section 7.1
o Section 7.2
o Section 7.10
o Section 7.12
o Section 7.15
[Add other matters as appropriate to the transaction]
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _______________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of October
25, 2004 (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 party from time to time thereto (as defined in the
Agreement), and Bank of America, N.A., as Administrative Agent for the Lenders
(in such capacity, the "Agent") and as Swing Line Lender and L/C Issuer.
The undersigned Authorized Representative hereby certifies as of the
date hereof that he/she is the _____________________________________________ of
the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 8.1(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 8.1(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, the
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or observed and
the following is a list of each such Default and its nature and status:]
4. 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 (a) the representations and warranties set forth in Sections 7.4 and 7.6 of
the Agreement are deemed to include and take into account any merger or
consolidation permitted under Section 9.6 of the Agreement and (b) 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).
5. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_______________, _______.
GTECH CORPORATION
By:
-----------------------------------------
Authorized Representative
Name:
---------------------------------------
Title:
--------------------------------------
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
I. Section 9.1(a) - Consolidated Total Debt Ratio.
A. Consolidated Total Indebtedness for the Four-Quarter
Period ending on the Statement Date ("Subject Period"): $_____________
B. Consolidated EBITDA for the Subject Period:
1. Consolidated Net Income (excluding any extraordinary
gains or losses) for Subject Period: $_____________
2. Consolidated Interest Expense for Subject Period: $_____________
3. Provision for income taxes for Subject Period: $_____________
4. Depreciation expenses for Subject Period: $_____________
5. Amortization expenses for Subject Period: $_____________
6. All other non-cash expense items for Subject
Period: $_____________
7. Consolidated EBITDA (Lines II.B.1 plus 2 plus 3
plus 4 plus 5 plus 6): $_____________
C. Consolidated Total Debt Ratio (Line I.A / Line I.B.7): ______ to 1.00
Maximum allowed: 2.75 to 1.00
II. Section 9.1(b) - Consolidated Interest Coverage Ratio.
A. Consolidated EBITDA for the Subject Period (Line I.B.7
above): $_____________
B. Consolidated Interest Expense for Subject Period: $_____________
C. Consolidated Interest Coverage Ratio
(Line II.A / Line II.B): ______ to 1.00
Minimum required: 4.00 to 1.00
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 3
to the Compliance Certificate
Consolidated EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
Consolidated EBITDA Quarter Quarter Quarter Quarter Twelve Months
Ended Ended Ended Ended Ended
__________ __________ __________ __________ __________
Consolidated
Net Income (excluding
any non-cash
extraordinary gains or
losses)
+ Consolidated
Interest Expense
+ income taxes
+ depreciation
expense
+ amortization
expense
+ all other
non-cash expense
items
= Consolidated
EBITDA
EXHIBIT I
FORM OF FACILITY GUARANTY
[see attached]
Execution Version
GUARANTY AGREEMENT
(Parent Guarantor)
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
October 25, 2004, is made by GTECH HOLDINGS CORPORATION, a Delaware corporation
(the "Guarantor"), to BANK OF AMERICA, N.A., a national banking association
organized and existing under the laws of the United States, as administrative
agent (in such capacity, the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties" and each a "Secured Party")
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 GTECH
Corporation, a Delaware corporation (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
October 25, 2004, among the Borrower, the Agent and the Lenders party thereto
from time to time (as from time to time amended, modified, supplemented or
restated, the "Credit Agreement"); and
WHEREAS, the Guarantor is the Parent 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, the 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 the 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 Guarantor enters into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Guaranty. The Guarantor hereby 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 Guarantor's obligations to the Secured Parties under this
Guaranty Agreement are hereinafter collectively referred to as the "Guarantor's
Obligations".
The Guarantor agrees that it is directly and primarily liable 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 the Guarantor will,
upon demand thereof by the Agent, fully pay to the Agent, for the benefit of the
Secured Parties, subject to any restriction on the 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 Guarantor's Obligations under this Guaranty Agreement
shall be absolute and unconditional irrespective of, and the 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 Guarantor's 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, 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,
or for any other obligations or liabilities of any Person under any of
the Related Agreements;
(e) any dissolution of the Borrower or the Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Borrower or the 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 the 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 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, 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 the Guarantor) which may or might in any manner or to
any extent vary the risks of the 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 the
Guarantor's Obligations.
It is the express purpose and intent of the parties hereto that this
Guaranty Agreement and the Guarantor's 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 of the Guarantor's 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 Guarantor's Obligations shall immediately be and
become due and payable.
6. Subordination. Until this Guaranty Agreement is terminated in
accordance with Section 23 hereof, the Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to the Guarantor (a) of the Borrower, to the payment in full of
the Borrower's Liabilities, (b) of every other guarantor of the Borrower's
Obligations (an "obligated guarantor"), to the payment in full of the
guarantor's obligations of such obligated guarantor, and (c) 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 Guarantor's Obligations, or such
other obligations, as applicable, and, after such request and pending such
payment, shall be held by the Guarantor as agent and bailee of the Secured
Parties separate and apart from all other funds, property and accounts of the
Guarantor.
7. Suits. The Guarantor from time to time shall pay to the Agent for
the benefit of the Secured Parties, on demand, at the Principal Office or such
other address as the Agent shall give notice of to the Guarantor, the
Guarantor's 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 the
Guarantor. At the Agent's election, one or more and successive or concurrent
suits may be brought hereon by the Agent against the Guarantor, 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. The 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 the 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 the Guarantor. The 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 the Guarantor, including any balance of any deposit account or of any credit
of the 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) The 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. The 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 the Guarantor from its Guarantor's Obligations, and the
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) The Guarantor hereby agrees that payment or performance 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 the Guarantor without the Agent being required, the
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 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
THE 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) The 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 the 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 the 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
Guarantor's 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 Guarantor's 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 the
Guarantor under this Guaranty Agreement may be asserted by the Agent on behalf
of the Secured Parties by written notice directed to the Guarantor in accordance
with Section 25 hereof.
11. Representations and Warranties. The 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
own its properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, (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 the Guarantor by its duly authorized representatives, (d)
this Guaranty Agreement is legal, valid, binding and enforceable against the
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) the 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 the
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. The Guarantor agrees to be directly and primarily 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. The 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, the Guarantor
hereby appoints the Agent, for the benefit of the Secured Parties, as its
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. The Guarantor represents and warrants to the Agent, for
the benefit of the Secured Parties, that: (a) the 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) the 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) the 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) the Guarantor has relied solely on its
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) the 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 the 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. The Guarantor agrees that no Secured
Party has any duty or responsibility whatsoever, now or in the future, to
provide to the 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 the Guarantor receives any such
information from any Secured Party or its or their employees, directors, agents
or other representatives or affiliates, the 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
Article I 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 the Guarantor
shall not 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 12.6
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.
No Person who obtains the benefit of this Guaranty Agreement by virtue
of the provisions of this Section shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any other
Loan Document or otherwise in respect of the Guarantors' Obligations (including
the release or modification of any Guarantors' Obligations or security therefor)
other than in its capacity as a Lender and only to the extent expressly provided
in the Loan Documents. Each Secured Party not a party to the Credit Agreement
who obtains the benefit of this Guaranty Agreement by virtue of the provisions
of this Section shall be deemed to have acknowledged and accepted the
appointment of the Agent pursuant to the terms of the Credit Agreement, and that
with respect to the actions and omissions of the Agent hereunder or otherwise
relating hereto that do or may affect such Secured Party, the Agent and each
Related Party of any of the foregoing shall be entitled to all the rights,
benefits and immunities conferred under Article XI of 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 12.4 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
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 the 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
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The 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. The 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 Guarantor's 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 Guarantor's 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 the 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 the Guarantor, at the address of the Borrower indicated in
Schedule 12.2 of the Credit Agreement and (b) with respect to the Agent or any
other Secured Party, at the Agent's address indicated in Schedule 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. Covenants.
(a) The Guarantor hereby agrees that until all the Borrower's
Liabilities described in Section 1 have been paid in full and any and
all documents relating thereto have been terminated, it shall comply
with the covenants of the Borrower set forth in Sections 8.1 through
8.17, inclusive, of the Credit Agreement as if it were the Borrower,
the terms of such sections being incorporated herein by reference.
(b) The Guarantor hereby agrees that until all Borrower's
Liabilities described in Section 1 have been paid in full and any and
all documents relating thereto have been terminated, it shall comply
with the covenants of the Borrower set forth in Sections 9.1 through
9.16, inclusive (except for Sections 9.13 and 9.14), of the Credit
Agreement as if it were the Borrower.
In applying the provisions of the Credit Agreement with
respect to the Guarantor pursuant to this Section 26, except as set
forth above those provisions shall be applied, mutatis mutandis, to the
Guarantor as if it were the Borrower. For example, the Guarantor may
make a restricted payment under Section 9.7 of the Credit Agreement to
one or more of its stockholders if the Borrower could make such
restricted payment in the same amount at such time to its stockholder,
the Guarantor.
(c) All actions taken by the Guarantor in reliance upon a
basket set forth in any section of Article VIII or Article IX of the
Credit Agreement shall reduce dollar-for-dollar the amount of such
basket remaining available to the Borrower and its Subsidiaries for
purposes of such Section, as if the Borrower had taken such action; and
all actions taken by the Borrower or a Subsidiary in reliance upon a
basket set forth in any section of Article VIII or Article IX of the
Credit Agreement shall reduce dollar-for-dollar the amount of such
basket remaining available to the Guarantor for purposes of such
Section as incorporated herein. The Guarantor shall not permit the
Borrower or any of the Borrower's Subsidiaries to take any action in
reliance upon a basket set forth in any section of Article VIII or
Article IX of the Credit Agreement to the extent that, after giving
effect to such utilization of such basket by the Borrower or such
Subsidiaries, as the case may be, the aggregate utilization of such
basket at such time by the Guarantor, the Borrower and the Borrower's
Subsidiaries would exceed the amount of such basket stated in the
Credit Agreement.
(d) Notwithstanding anything herein or in the Credit Agreement
to the contrary, the Guarantor shall not create, incur or assume any
Lien upon stock of the Borrower owned by it other than Liens of the
type described in Sections 9.2(a), (b) or (j) of the Credit Agreement.
27. 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) THE 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, THE 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 THE GUARANTOR
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCON-DITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE 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 THE
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 THE GUARANTOR OR ANY OF ITS PROPERTY OR ASSETS MAY
BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF
ANY SUCH JURISDICTION, THE 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, THE 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) THE 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 pages follow.]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTOR:
GTECH HOLDINGS CORPORATION
By: /s/ William M. Pieri
-------------------------------------
Name: William M. Pieri
Title: Treasurer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent for the Lenders
By:_______________________________________
Name: ____________________________________
Title: ____________________________________
Execution Version
GUARANTY AGREEMENT
(Subsidiary Guarantors)
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
October 25, 2004, 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
administrative 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 GTECH
Corporation, a Delaware corporation (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
October 25, 2004, among the Borrower, the Agent and the Lenders party thereto
from time to time (as from time to time amended, modified, supplemented or
restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is, 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 and under each
Facility Guaranty Joinder Agreement 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 (a) of the Borrower, to the payment in full of
the Borrower's Liabilities, (b) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (c) 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 Principal Office 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
own its properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, (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 (or the Facility Guaranty Joinder Agreement to which it is a
party, as applicable); that this Guaranty Agreement (or the Facility Guaranty
Joinder Agreement to which it is a party, as applicable) has been duly executed
and delivered on behalf of such Guarantor by its duly authorized
representatives, (d) this Guaranty Agreement (and any Facility Guaranty Joinder
Agreement to which it is a party) 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 (and any Facility Guaranty Joinder
Agreement to which it is a party) 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 and any Facility Guaranty Joinder 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 (or the Facility Guaranty Joinder Agreement to which it
is a party, as applicable) freely and deliberately, and understands the
obligations and financial risk undertaken by providing this Guaranty Agreement
(and any Facility Guaranty Joinder Agreement to which it is a party); (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 any Facility Guaranty Joinder
Agreement to which it is a party) 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 (and any Facility Guaranty Joinder Agreement
to which it is a party), 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
Article I of the Credit Agreement shall be applicable to this Guaranty Agreement
and each Facility Guaranty Joinder 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 and each Facility
Guaranty Joinder 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 Facility Guaranty Joinder
Agreement nor any portion or provision hereof or thereof 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, each
Facility Guaranty Joinder Agreement and the terms, covenants and conditions
hereof and thereof, shall be binding upon and inure to the benefit of the
parties hereto and thereto, 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, any Facility Guaranty Joinder 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 12.6 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.
No Person who obtains the benefit of this Guaranty Agreement by virtue
of the provisions of this Section shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any other
Loan Document or otherwise in respect of the Guarantors' Obligations (including
the release or modification of any Guarantors' Obligations or security therefor)
other than in its capacity as a Lender and only to the extent expressly provided
in the Loan Documents. Each Secured Party not a party to the Credit Agreement
who obtains the benefit of this Guaranty Agreement by virtue of the provisions
of this Section shall be deemed to have acknowledged and accepted the
appointment of the Agent pursuant to the terms of the Credit Agreement, and that
with respect to the actions and omissions of the Agent hereunder or otherwise
relating hereto that do or may affect such Secured Party, the Agent and each
Related Party of any of the foregoing shall be entitled to all the rights,
benefits and immunities conferred under Article XI of 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 12.4 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 each Facility Guaranty Joinder 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
Schedule 12.2 of the Credit Agreement and (b) with respect to the Agent or any
other Secured Party, at the Agent's address indicated in Schedule 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. Joinder. Each Person who shall at any time execute and deliver to
the Agent a Facility Guaranty Joinder Agreement substantially in the form
attached as Exhibit A hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Guarantor,
and all references herein and in the other Loan Documents to the Guarantors or
to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.
27. Governing Law; Venue; Waiver of Jury Trial.
(a) THIS GUARANTY AGREEMENT AND EACH FACILITY GUARANTY JOINDER
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 GUARANTY AGREEMENT OR ANY FACILITY GUARANTY JOINDER 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
GUARANTY AGREEMENT OR ANY FACILITY GUARANTY JOINDER 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 GUARANTY AGREEMENT OR ANY
FACILITY GUARANTY JOINDER 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 pages follow.]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
GTECH Rhode Island Corporation, a Rhode Island corporation
By: /s/ William M. Pieri
----------------------------------------------------
Name: William M. Pieri
Title: Treasurer
GTECH Latin America Corporation, a Delaware corporation
By: /s/ William M. Pieri
----------------------------------------------------
Name: William M. Pieri
Title: Treasurer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent for the Lenders
By:_______________________________________
Name: ____________________________________
Title: ____________________________________
EXHIBIT A
Form of Facility Guaranty Joinder Agreement
GUARANTY JOINDER AGREEMENT
THIS GUARANTY JOINDER AGREEMENT (the "Guaranty Joinder Agreement"),
dated as of _____________, 20__ is made by and between
_______________________________, a ________________ (the "Joining Guarantor"),
and BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the "Agent")
under that certain Credit Agreement (as amended, supplemented or restated from
time to time, the "Credit Agreement"), dated as of October 25, 2004, by and
among GTECH Corporation, a Delaware corporation (the "Borrower"), the Lenders
party thereto from time to time and the Agent. All capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
WHEREAS, the Joining Guarantor is required by the terms of the Credit
Agreement to become a "Guarantor" under the Credit Agreement and be joined as a
party to the Guaranty; and
WHEREAS, the Joining Guarantor will materially benefit directly and
indirectly from the credit facilities made available and to be made available to
the Borrower by the Lenders under the Credit Agreement;
NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the
Agent, for the benefit of the Secured Parties (as defined in the Guaranty and
including any Lender or Affiliate of any Lender party to a Swap Agreement):
1. Joinder. The Joining Guarantor hereby irrevocably, absolutely and
unconditionally becomes a party to the Guaranty as a Guarantor and bound by all
the terms, conditions, obligations, liabilities and undertakings of each
Guarantor or to which each Guarantor is subject thereunder, including without
limitation the joint and several, unconditional, absolute, continuing and
irrevocable guarantee to the Agent for the benefit of the Secured Parties of the
payment and performance in full of the Borrower's Liabilities (as defined in the
Guaranty Agreement) whether now existing or hereafter arising, all with the same
force and effect as if the Joining Guarantor were a signatory to the Guaranty
Agreement.
2. Affirmations. The Joining Guarantor hereby acknowledges and
reaffirms as of the date hereof with respect to itself, its properties and its
affairs each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Guarantor contained in the Guaranty.
3. Severability. The provisions of this Guaranty Joinder 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 Joinder Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
4. Counterparts. This Guaranty Joinder 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 Joinder Agreement to produce or account for more than one such
counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 12.10 of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.
5. Delivery. The Joining Guarantor hereby irrevocably waives notice of
acceptance of this Guaranty Joinder Agreement and acknowledges that the
Borrower's Liabilities are and shall be deemed to be incurred, and credit
extensions under the Loan Documents made and maintained, in reliance on this
Guaranty Joinder Agreement and the Joining Guarantor's joinder as a party to the
Guaranty as herein provided.
6. Governing Law; Venue; Waiver of Jury Trial. The provisions of
Section 27 of the Guaranty are hereby incorporated by reference as if fully set
forth herein.
[Signature page follows.]
IN WITNESS WHEREOF, the Joining Guarantor has duly executed and
delivered this Guaranty Joinder Agreement as of the day and year first written
above.
JOINING GUARANTOR:
-----------------------------------------------
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Agent
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
----------------------------------------------
Schedule 1.1
EXISTING LETTERS OF CREDIT
Prod Country of
Type LC # Issued Expires Pricing Applicant Beneficiary Currency Currency Amount USD
----- ---- ------ ------- ------- --------- ----------- -------- --------------- ---
SBYPER 00000003030282 10/18/2000 4/30/2005 0.125 GTECH Corporation Bank Hapoalim USD 515,000.00 $515,000.00
SBYFIN 00000003045201 1/7/2002 1/4/2005 0.125 GTECH Corporation Credit Du Maroc USD 4,025,000.00 $4,025,000.00
SBYPER 00000003052913 12/11/2002 1/10/2005 0.125 GTECH Foreign Holding Banque BCP EUR 2,650,879.28 $3,285,897.41
SBYFIN 00000007414471 6/3/2004 4/30/2005 0.125 GTECH Corporation Bank of America, N.A. EUR 3,000,000.00 $3,718,650.00
SBYFIN 00000007414472 6/3/2004 1/31/2005 0.125 GTECH Corporation Bank of America, N.A. EUR 3,000,000.00 $3,718,650.00
SBYFIN 00000007414473 6/3/2004 4/30/2005 0.125 GTECH Corporation Bank of America, N.A. EUR 11,220,000.00 $13,907,751.00
Schedule 7.4
Material Subsidiaries
1. GTECH Rhode Island Corporation, a Rhode Island corporation (1,000
shares authorized and 1,000 shares issued to the Borrower)
2. GTECH Brasil Ltda, a company organized under the laws of Brazil (100%
of equity interests owned by the Borrower)
3. GTECH Global Services Corporation Limited, a corporation organized
under the laws of Cyprus (100% of all equity interests owned by the Borrower)
Schedule 7.6
Indebtedness
Customer Prepayment Obligations
Schedule 7.7
Liens
Liens to secure Customer Prepayment Obligations
Schedule 7.8
Tax Matters
None.
Schedule 7.18
Environmental Matters
None.
Schedule 7.22
INSURANCE
Package Insurer Policy No. Coverages Policy Period
- ------- ------- ---------- --------- -------------
Domestic Vigilant Insurance Company 3512860 Property and 10/01/04 to
Liability 10/01/05
International Great Northern Insurance Company 35395546 Property and 10/01/04 to
Liability 10/01/05
Schedule 12.2
Administrative Agent's Principal Office;
Certain Addresses for Notice
BORROWER:
GTECH Corporation
55 Technology Way
West Greenwich, Rhode Island 02817
Attention: William M. Pieri
Vice President, Mergers and Acquisitions, and Treasurer
Telephone: 401.392.7872
Telecopier: 401.392.4940
Electronic Mail: william.pieri@gtech.com
Website Address: www.gtech.com
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
One Independence Center
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Donna Dunn
Telephone: 704.386.3767
Telecopier: 704.409.0070
Electronic Mail: donna.x.dunn@bankofamerica.com
Account No. (for Dollars): 1366212250600
Ref: GTECH Corporation, Attn: Credit Services
ABA# 026009593
(other Notices as Administrative Agent):
Bank of America, N.A.
Agency Management
335 Madison Avenue, 4th Floor
Mail Code: NY1-503-04-03
New York, New York 10017
Attention: Steven Gazzillo
Telephone: 212.503.8328
Facsimile: 704.409.0912
Electronic Mail: steven.gazzillo@bankofamerica.com
L/C ISSUER:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
333 S. Beaudry Avenue, 19th Floor
Mail Code: CA9-703-19-23
Los Angeles, CA 90017-1466
Attention: Sandra Leon
Vice President
Telephone: 213.345.5231
Telecopier: 213.345.6694
Electronic Mail: Sandra.Leon@bankofamerica.com
SWING LINE LENDER:
Bank of America, N.A.
One Independence Center
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Donna Dunn
Telephone: 704.386.3767
Telecopier: 704.409.0070
Electronic Mail: donna.x.dunn@bankofamerica.com
Account No. (for Dollars): 1366212250600
Ref: GTECH Corporation, Attn: Credit Services
ABA# 026009593