Exhibit 99.1

 

To:                              The Royal Bank of Scotland plc, as Agent under the Senior Facilities Agreement (as defined below)

 

From:                International Game Technology PLC, as Obligors’ Agent under the Senior Facilities Agreement

 

19 November 2018

 

CONFIDENTIAL

 

Ladies and Gentlemen:

 

Fifth Amendment Request - Senior Facilities Agreement dated 4 November 2014, as amended 2 April 2015, 28 October 2015, 26 July 2016 and  31 July 2017, for the US$1,200,000,000 and €725,000,000 multicurrency revolving credit facilities among International Game Technology PLC (as successor-by-merger with GTECH S.p.A.) , as the Parent and a Borrower; IGT Global Solutions Corporation (formerly known as GTECH Corporation) , as a Borrower; J.P. Morgan Limited and Mediobanca - Banca di Credito Finanziario S.p.A., as the Global Coordinators, Bookrunners and Mandated Lead Arrangers; the entities listed in Part III of Schedule 1 thereto, as the Bookrunners and Mandated Lead Arrangers, the entities listed in Part IV of Schedule 1 thereto, as the Mandated Lead Arrangers; the entities listed in Part V of Schedule 1 thereto, as the Arrangers; the financial institutions listed in Part IIA of Schedule 1 thereto, as the Original Lenders; The Royal Bank of Scotland plc, as the Agent; The Royal Bank of Scotland plc, as the Issuing Agent; KeyBank National Association, as the Swingline Agent; and the financial institutions listed in Part IIB of Schedule 1 thereto, as the Original US Dollar Swingline Lenders (the “Senior Facilities Agreement”)

 

1.                                       Introduction

 

We refer to the Senior Facilities Agreement. Unless a contrary indication appears, a term defined in the Senior Facilities Agreement has the same meaning when used in this letter.

 

2.                                       Proposed Amendments Requiring Consent of the Majority Lenders

 

Pursuant to Clause 42.1 ( Required consents ) of the Senior Facilities Agreement, the Parent hereby requests the consent of the Majority Lenders to the following proposed amendments:

 

2.1.                             Paragraph (c) of the definition of Permitted Disposal in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<<(c)                     of any asset by a member of the Group (the “ Disposing Company ”) to another member of the Group (the “ Acquiring Company ”), but if:

 

 

(i)                                      the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor; and

 

(ii)                                   the Disposing Company is a Guarantor, the Acquiring Company must be (A) a Borrower, (B) a Guarantor guaranteeing at all times an amount no less than the amount guaranteed by the Disposing Company or (C) a Guarantor guaranteeing an amount less than the amount guaranteed by the Disposing Company provided that the guarantee of such Guarantor (including the Italian Holdco) is limited solely to the extent required to comply with the Agreed Security Principles,

 

it being understood that (x) if any of the assets being sold, leased, licensed, transferred or otherwise disposed of are at such time subject to Security in favour of the Lenders, then the Agent is reasonably satisfied that the Lenders will continue to benefit from the same or equivalent Security; and (y) an initial disposal of assets by a member of the Group to another member of the Group which initial disposal is made to effect a subsequent disposal to a member of the Group or to a third party that is not a member of the Group and that is otherwise permitted under the definition of “Permitted Disposal” shall not be considered for the purposes of this paragraph (c) or paragraph (i) below as long as such subsequent disposal is completed within two (2) months following the date of such initial disposal. For the avoidance of doubt, any subsequent disposal to a third party that is not a member of the Group shall be considered for the purposes of paragraph (i) below;>>

 

2.2.                             The proviso following paragraph (i) of the definition of Permitted Disposal in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<< provided that nothing in this Agreement will be taken to permit the disposal of a Borrower or a Guarantor (whether by Third Party Disposal or otherwise) save in circumstances where (x) prior to the disposal, the relevant Borrower or Guarantor resigns as a Borrower or a Guarantor (or both, as they case may be) in accordance with paragraph (a) of Clause 31.3 ( Resignation of an Obligor ) and satisfies the conditions set out in, and its resignation is accepted pursuant to, paragraph (b) of Clause 31.3 ( Resignation of an Obligor ) or (y) the disposal of the relevant Borrower or Guarantor is permitted pursuant to paragraph (c) above.>>

 

2.3.                             The definition of Permitted Restricted Payment in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<<“ Permitted Restricted Payment ” means any of the following:

 

(a)                                  a Permitted Transaction;

 

2

 

(b)                                  [Intentionally omitted];

 

(c)                                   subject to the proviso below, for the Financial Year ending on 31 December 2015 and each Financial Year thereafter, Restricted Payments in an aggregate amount up to:

 

(i)                                      US$400,000,000 for each Financial Year if the Public Debt Ratings are equal to or higher than BB+ and Ba1; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (i) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable; and

 

(ii)                                   US$300,000,000 for each Financial Year if any Public Debt Rating is lower than BB+ or Ba1 or any Public Debt Rating is withdrawn; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (ii) shall be interpreted to mean two of the three Public Debt Ratings issued by the Rating Agencies being lower than BB+ or Ba1 as applicable,

 

subject in each case to the Parent certifying that the ratio of (x) the sum of Total Net Debt at the last day of most recent Relevant Period for which a Compliance Certificate was due pursuant to Clause 26.2 ( Provision and contents of Compliance Certificate ) and the amount of the Restricted Payment to (y) EBITDA for such Relevant Period does not exceed (1)  ninety per cent (90%) (for all Relevant Periods other than the Relevant Periods set forth in clause (2)) or (2) ninety-five per cent (95%) (for the Relevant Periods ending 31 December 2018, 31 March 2019, 30 June 2019, 30 September 2019 and 31 December 2019) of the ratio of Total Net Debt to EBITDA applicable for such Relevant Period pursuant to Clause 27.2(b) ( Financial condition );

 

(d)                                  [Intentionally omitted];

 

(e)                                   for the period starting on 1 January 2016 and ending on the Final Maturity Date and for so long as the Public Debt Ratings are equal to or higher than BB+ and Ba1 (in addition to amounts permitted under paragraphs (a), (b) and (c) above), Share Buy Backs in an aggregate amount up to US$150,000,000; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this paragraph (e) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable;

 

3

 

(f)                                    any Shareholder Payments in the ordinary course of business and on market terms in an aggregate amount up to US$3,000,000 in any Financial Year; and

 

(g)                                   any Restricted Payments made in connection with share capital of the Parent owned by management of the Group as part of an employee compensation plan, including stock based compensation and management incentive plans.>>

 

2.4.                             The following paragraph (d) is hereby inserted following paragraph (c) of Clause 28.25 ( MFN to Financial Covenants and Mandatory Prepayments ):

 

<<(d)                    For purposes of this Clause 28.25, the Agent may (without receiving any instructions from the Majority Lenders) agree with the Parent any documents as are necessary (including entering into an amendment and restatement of this Agreement) to procure that the Finance Parties receive the benefit of the same or substantially the same (i) financial covenants (on the same or substantially the same terms and conditions and at substantially the same levels) (as the case may be) or (ii) mandatory prepayment provisions (on the same or substantially the same terms and conditions subject to paragraph (c) above) (as the case may be).>>

 

2.5.                             Paragraph (c) of Clause 31.2 ( Additional Obligors ) is amended in its entirety to read as follows:

 

<<(c)                     A member of the Group which is a wholly owned Subsidiary of the Parent shall become an Additional Obligor if:

 

(i)                                      other than with respect to those Additional Obligors set out in subparagraphs (i), (ii) and (iii) of paragraph (b) above, (A) all Lenders (in the case of a proposed Additional Borrower) have approved that member of the Group becoming an Additional Borrower or (B) the Majority Lenders (in the case of a proposed Additional Guarantor) have approved that member of the Group becoming an Additional Guarantor; provided that the approval of the Majority Lenders shall not be required, and the Agent may approve such member of the Group becoming an Additional Guarantor without receiving any instructions from the Majority Lenders, if any proposed Additional Guarantor (1) is incorporated, organised or formed under the laws of the United States or any state thereof (including the District of Columbia), England and Wales, a member state of the European Union or the European Economic Area or Canada or any province or territory thereof or (2) is becoming an Additional Guarantor in connection with the Parent’s compliance with Clause 28.24 ( Guarantor Threshold Test and Additional Guarantors );

 

4

 

(ii)                                   the Parent and the proposed Additional Obligor deliver to the Agent a duly completed and executed Accession Letter; and

 

(iii)                                the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ) in relation to the proposed Additional Obligor, each in form and substance satisfactory to the Agent.>>

 

3.                                       Proposed Amendment to Correct Manifest Error

 

Pursuant to Clause 42.6 ( Amendment to correct manifest error ) of the Senior Facilities Agreement, the Parent hereby requests that the Agent agree to the following proposed amendment:

 

3.1.                             Paragraph (c) of Clause 28.25 ( MFN to Financial Covenants and Mandatory Prepayments ) be amended in its entirety to read as follows:

 

(c)                                   For the purposes of paragraph (b) above, it is acknowledged and agreed that any such mandatory prepayment provision introduced into this Agreement as a result shall provide for prepayment of the Facilities without cancellation such that the amount prepaid may subsequently be re-drawn (though it is understood that the amount redrawn may not be used to finance, directly or indirectly, the equivalent mandatory prepayment of Pari Passu Indebtedness).

 

4.                                       Amendment Fee and Consent Deadline

 

4.1.                             We hereby request that you seek and obtain the consent of the Majority Lenders to the amendments proposed in Section 2 and if you obtain the consent of the Majority Lenders to the amendments proposed in Section 2, that you sign a copy of this letter and return it to us as soon as practicable after the Consent Deadline (as defined in Section 4.2). We will then instruct Clifford Chance to reflect the amendments proposed in Section 2 in a revised conformed copy of the Senior Facilities Agreement and arrange for it to be delivered to you for circulation to the Lenders.

 

4.2.                             In consideration of the Majority Lenders consenting to the amendments proposed in Section 2 on or before the Consent Deadline, we will pay an amendment fee to each consenting Lender (the “ Amendment Fee ”) equal to the product of ten one-hundredths of one per cent. (0.10%) and each consenting Lender’s aggregate Revolving Facility Commitments to the extent that the Majority Lenders consent to such amendments on or before the Consent Deadline. For the purposes of this letter, the “ Consent Deadline ” shall be 17 December 2018, unless extended in accordance with Section 4.4 and the “ Amendment Effective Date ” is the date on which the amendments proposed in Section 2 take effect, being the date specified in the copy of this letter which has been countersigned by you in accordance with Section 3.1.

 

5

 

4.3.                             The Amendment Fee for each consenting Lender will be paid through the Agent (in accordance with Clause 35.1 ( Payments to the Agent ) of the Senior Facilities Agreement) on or before the date which is five (5) Business Days following the Amendment Effective Date. For avoidance of any doubt, the amendments proposed in Section 2 shall not become effective and no Amendment Fee will be paid unless the Majority Lenders consent to the amendments proposed in Section 2 on or before the Consent Deadline.

 

4.4.                             The Parent reserves the right (a) to withdraw the request that you seek and obtain the consent of the Majority Lenders to the amendments proposed in Section 2 and (b) to extend the Consent Deadline at any time prior to the then current Consent Deadline.

 

5.                                       Miscellaneous

 

5.1.                             The Repeating Representations are true on the date of this letter and will be deemed to be made on the Amendment Effective Date.

 

5.2.                             The provisions of the Finance Documents shall, save as amended in this letter, continue in full force and effect and shall incorporate the amendments proposed in Section 2 and Section 3 (the “ Proposed Amendments ”). The Parent confirms for the benefit of the Finance Parties that, after giving effect to the Proposed Amendments, the guarantees of the Guarantors and the Security created pursuant to the Security Documents will remain in full force and effect.

 

5.3.                             This letter is a Finance Document for the purposes of the Senior Facilities Agreement.

 

5.4.                             The provisions of Clause 41 ( Remedies and Waivers ), Clause 46 ( Governing Law ) and Clause 47 ( Enforcement ) of the Senior Facilities Agreement shall be incorporated into this letter as if set out in full in this letter and as if references in those provisions to “this Agreement” are or include references to this letter.

 

5.5.                             This letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of copy of this letter.

 

[THE NEXT PAGE IS THE SIGNATURE PAGE]

 

6

 

Yours faithfully

 

International Game Technology PLC

as Obligors’ Agent

 

 

By	/s/ Claudio Demolli
	Claudio Demolli,
	Treasurer

 

The Agent confirms on behalf of the Finance Parties that the Majority Lenders consent to the amendments proposed in Section 2 above and that the Amendment Effective Date will be 17 December 2018. The Agent hereby agrees to the amendment proposed in Section 3 above.

 

The Royal Bank of Scotland plc

as Agent on its own behalf and on behalf of each Finance Party

 

 

By	/s/ Manuel Caseiro
Print Name	Manuel Caseiro
Title	Director

 

Date:  17 December 2018

 

Exhibit 99.2

 

To:                              Mediobanca - Banca di Credito Finanziario S.p.A., as Agent under the Senior Facility Agreement (as defined below)

 

From:                International Game Technology PLC, as Obligors’ Agent under the Senior Facility Agreement

 

19 November 2018

 

CONFIDENTIAL

 

Ladies and Gentlemen:

 

First Amendment Request - Senior Facility Agreement dated 25 July 2017 for the €1,500,000,000 term loan facility among International Game Technology PLC, as the Borrower; the entities listed in Part I of Schedule 1 thereto, as the Original Guarantors; Bank of America Merrill Lynch International Limited and Mediobanca - Banca di Credito Finanziario S.p.A., as the Global Coordinators, Bookrunners and Mandated Lead Arrangers; the entities listed in Part III of Schedule 1 thereto, as the Bookrunners and Mandated Lead Arrangers, the entities listed in Part IV of Schedule 1 thereto, as the Mandated Lead Arrangers; the financial institutions listed in Part II of Schedule 1 thereto, as the Original Lenders; and Mediobanca - Banca di Credito Finanziario S.p.A. , as the Agent (the “Senior Facility Agreement”)

 

1.                                       Introduction

 

We refer to the Senior Facility Agreement. Unless a contrary indication appears, a term defined in the Senior Facility Agreement has the same meaning when used in this letter.

 

2.                                       Proposed Amendments Requiring Consent of the Majority Lenders

 

Pursuant to Clause 37.1 ( Required consents ) of the Senior Facility Agreement, the Borrower hereby requests the consent of the Majority Lenders to the following proposed amendments:

 

2.1.                             Paragraph (c) of the definition of Permitted Disposal in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<<(c)                     of any asset by a member of the Group (the “ Disposing Company ”) to another member of the Group (the “ Acquiring Company ”), but if:

 

(i)                                      the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor; and

 

 

(ii)                                   the Disposing Company is a Guarantor, the Acquiring Company must be (A) the Borrower, (B) a Guarantor guaranteeing at all times an amount no less than the amount guaranteed by the Disposing Company or (C) a Guarantor guaranteeing an amount less than the amount guaranteed by the Disposing Company provided that the guarantee of such Guarantor (including Lottomatica Holding S.r.l.) is limited solely to the extent required to comply with the Agreed Security Principles,

 

it being understood that (x) if any of the assets being sold, leased, licensed, transferred or otherwise disposed of are at such time subject to Security in favour of the Lenders, then the Agent is reasonably satisfied that the Lenders will continue to benefit from the same or equivalent Security; and (y) an initial disposal of assets by a member of the Group to another member of the Group which initial disposal is made to effect a subsequent disposal to a member of the Group or to a third party that is not a member of the Group and that is otherwise permitted under the definition of “Permitted Disposal” shall not be considered for the purposes of this paragraph (c) or paragraph (i) below as long as such subsequent disposal is completed within two (2) months following the date of such initial disposal. For the avoidance of doubt, any subsequent disposal to a third party that is not a member of the Group shall be considered for the purposes of paragraph (i) below;>>

 

2.2.                             The proviso following paragraph (i) of the definition of Permitted Disposal in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<< provided that nothing in this Agreement will be taken to permit the disposal of a Guarantor (whether by Third Party Disposal or otherwise) save in circumstances where (x) prior to the disposal, the relevant Guarantor resigns as a Guarantor in accordance with paragraph (a) of Clause 26.3 ( Resignation of a Guarantor ) and satisfies the conditions set out in, and its resignation is accepted pursuant to, paragraph (b) of Clause 26.3 ( Resignation of a Guarantor ) or (y) the disposal of the relevant Guarantor is permitted pursuant to paragraph (c) above.>>

 

2.3.                             The definition of Permitted Restricted Payment in Clause 1.1 ( Definitions ) be amended in its entirety to read as follows:

 

<<“ Permitted Restricted Payment ” means any of the following:

 

(a)                                  a Permitted Transaction;

 

(b)                                  subject to the proviso below, for each Financial Year, Restricted Payments in an aggregate amount up to:

 

(i)                                      US$400,000,000 for each Financial Year if the Public Debt Ratings are equal to or higher than BB+ and Ba1; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (i) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable; and

 

2

 

(ii)                                   US$300,000,000 for each Financial Year if any Public Debt Rating is lower than BB+ or Ba1 or any Public Debt Rating is withdrawn; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (ii) shall be interpreted to mean two of the three Public Debt Ratings issued by the Rating Agencies being lower than BB+ or Ba1 as applicable,

 

subject in each case to the Borrower certifying that the ratio of (x) the sum of Total Net Debt at the last day of most recent Relevant Period for which a Compliance Certificate was due pursuant to Clause 21.2 ( Provision and contents of Compliance Certificate ) and the amount of the Restricted Payment to (y) EBITDA for such Relevant Period does not exceed (1) ninety per cent (90%) (for all Relevant Periods other than the Relevant Periods set forth in clause (2)) or (2) ninety-five per cent (95%) (for the Relevant Periods ending 31 December 2018, 31 March 2019, 30 June 2019, 30 September 2019 and 31 December 2019) of the ratio of Total Net Debt to EBITDA applicable for such Relevant Period pursuant to Clause 22.2(b) ( Financial condition );

 

(c)                                   for so long as the Public Debt Ratings are equal to or higher than BB+ and Ba1 (in addition to amounts permitted under paragraphs (a) and (b) above), Share Buy Backs in an aggregate amount up to US$150,000,000; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this paragraph (c) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable;

 

(d)                                  any Shareholder Payments in the ordinary course of business and on market terms in an aggregate amount up to US$3,000,000 in any Financial Year; and

 

(e)                                   any Restricted Payments made in connection with share capital of the Borrower owned by management of the Group as part of an employee compensation plan, including stock based compensation and management incentive plans.>>

 

2.4.                             The following paragraph (c) is hereby inserted following paragraph (b) of Clause 23.24 ( MFN to Financial Covenants and Mandatory Prepayments ):

 

3

 

<<(c)                     For purposes of this Clause 23.24, the Agent may (without receiving any instructions from the Majority Lenders) agree with the Borrower any documents as are necessary (including entering into an amendment and restatement of this Agreement) to procure that the Finance Parties receive the benefit of the same or substantially the same (i) financial covenants (on the same or substantially the same terms and conditions and at substantially the same levels) (as the case may be) or (ii) mandatory prepayment provisions (on the same or substantially the same terms and conditions) (as the case may be).>>

 

2.5.                             Paragraph (c) of Clause 26.2 ( Additional Guarantors ) is amended in its entirety to read as follows:

 

<<(c)                     A member of the Group which is a wholly owned Subsidiary of the Borrower shall become an Additional Guarantor if:

 

(i)                                      other than with respect to Lottomatica Holding S.r.l., IGT Foreign Holdings Corporation and IGT Germany Gaming GmbH, the Majority Lenders have approved that member of the Group becoming an Additional Guarantor; provided that the approval of the Majority Lenders shall not be required, and the Agent may approve such member of the Group becoming an Additional Guarantor without receiving any instructions from the Majority Lenders, if any proposed Additional Guarantor (1) is incorporated, organised or formed under the laws of the United States or any state thereof (including the District of Columbia), England and Wales, a member state of the European Union or the European Economic Area or Canada or any province or territory thereof or (2) is becoming an Additional Guarantor in connection with the Borrower’s compliance with Clause 23.23 ( Guarantor Threshold Test and Additional Guarantors );

 

(ii)                                   the Borrower and the proposed Additional Guarantor deliver to the Agent a duly completed and executed Accession Letter; and

 

(iii)                                the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ) in relation to the proposed Additional Guarantor, each in form and substance satisfactory to the Agent.>>

 

3.                                       Amendment Fee and Consent Deadline

 

3.1.                             We hereby request that you seek and obtain the consent of the Majority Lenders to the amendments proposed in Section 2 and if you obtain the consent of the Majority Lenders to the amendments proposed in Section 2, that you sign a copy of this letter and return it to us as soon as practicable after the Consent Deadline (as defined in Section 3.2). We will then instruct Clifford Chance to reflect the amendments proposed in Section 2 in a revised conformed copy of the Senior Facility Agreement and arrange for it to be delivered to you for circulation to the Lenders.

 

4

 

3.2.                             In consideration of the Majority Lenders consenting to the amendments proposed in Section 2 on or before the Consent Deadline, we will pay an amendment fee to each consenting Lender (the “ Amendment Fee ”) equal to the product of ten one-hundredths of one per cent. (0.10%) and each consenting Lender’s Commitment to the extent that the Majority Lenders consent to such amendments on or before the Consent Deadline. For the purposes of this letter, the “ Consent Deadline ” shall be 18 December 2018, unless extended in accordance with Section 3.4 and the “ Amendment Effective Date ” is the date on which the amendments proposed in Section 2 take effect, being the date specified in the copy of this letter which has been countersigned by you in accordance with Section 3.1.

 

3.3.                             The Amendment Fee for each consenting Lender will be paid through the Agent (in accordance with Clause 30.1 ( Payments to the Agent ) of the Senior Facility Agreement) on or before the date which is five (5) Business Days following the Amendment Effective Date. For avoidance of any doubt, the amendments proposed in Section 2 shall not become effective and no Amendment Fee will be paid unless the Majority Lenders consent to the amendments proposed in Section 2 on or before the Consent Deadline.

 

3.4.                             The Borrower reserves the right (a) to withdraw the request that you seek and obtain the consent of the Majority Lenders to the amendments proposed in Section 2 and (b) to extend the Consent Deadline at any time prior to the then current Consent Deadline.

 

4.                                       Miscellaneous

 

4.1.                             The Repeating Representations are true on the date of this letter and will be deemed to be made on the Amendment Effective Date.

 

4.2.                             The provisions of the Finance Documents shall, save as amended in this letter, continue in full force and effect and shall incorporate the amendments proposed in Section 2 (the “ Proposed Amendments ”). The Borrower confirms for the benefit of the Finance Parties that, after giving effect to the Proposed Amendments, the guarantees of the Guarantors and the Security created pursuant to the Security Documents will remain in full force and effect.

 

4.3.                             This letter is a Finance Document for the purposes of the Senior Facility Agreement.

 

4.4.                             The provisions of Clause 36 ( Remedies and Waivers ), Clause 42 ( Governing Law ) and Clause 43 ( Enforcement ) of the Senior Facility Agreement shall be incorporated into this letter as if set out in full in this letter and as if references in those provisions to “this Agreement” are or include references to this letter.

 

5

 

4.5.                             This letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of copy of this letter.

 

[THE NEXT PAGE IS THE SIGNATURE PAGE]

 

6

 

Yours faithfully

 

International Game Technology PLC

as Obligors’ Agent

 

 

By	/s/ Claudio Demolli
	Claudio Demolli,
	Treasurer

 

The Agent confirms on behalf of the Finance Parties that the Lenders consent to the amendments proposed in Section 2 above and that the Amendment Effective Date will be 18 December 2018.

 

Mediobanca — Banca di Credito Finanziario S.p.A.

as Agent on its own behalf and on behalf of each Finance Party

 

 

By	/s/ Stefano Angelini
Print Name	Stefano Angelini
Title	Authorized Signer

 

Date:  18 December 2018

 

By	/s/ Stefania Peverelli
Print Name	Stefania Peverelli
Title	Authorized Signer

 

Date:  18 December 2018

 

Exhibit 99.3

 

CLIFFORD CHANCE STUDIO LEGALE IN ASSOCIAZIONE CON CLIFFORD CHANCE

 

CONFORMED COPY (including Fifth Amendment Request dated 19 November 2018)

 

GTECH S.P.A. (1)

AS PARENT

 

GTECH CORPORATION

GTECH S.P.A.

AS BORROWERS

 

J.P. MORGAN LIMITED

MEDIOBANCA — BANCA DI CREDITO FINANZIARIO S.P.A.

AS GLOBAL COORDINATORS, BOOKRUNNERS AND MANDATED LEAD ARRANGERS

 

THE ENTITIES LISTED IN PART III OF SCHEDULE 1

AS BOOKRUNNERS AND MANDATED LEAD ARRANGERS

 

THE ENTITIES LISTED IN PART IV OF SCHEDULE 1

AS MANDATED LEAD ARRANGERS

 

THE ENTITIES LISTED IN PART V OF SCHEDULE 1

AS ARRANGERS

 

THE ROYAL BANK OF SCOTLAND PLC

AS AGENT

 

KEYBANK NATIONAL ASSOCIATION

AS SWINGLINE AGENT

 

AND

 

OTHERS

 

 

US$1,800,000,000 (2) AND €1,050,000,000(3)

MULTICURRENCY REVOLVING

CREDIT FACILITIES FOR GTECH

CORPORATION AND GTECH S.P.A.

 

 

(1)  Currently International Game Technology PLC (as successor-by-merger with GTECH S.p.A.)

 

(2)  Currently US$1,200,000,000.

 

(3)  Currently €725,000,000.

 

i

 

CONTENTS

 

Clause			Page
1.	DEFINITIONS AND INTERPRETATION		3
2.	THE FACILITIES		49
3.	PURPOSE		51
4.	CONDITIONS OF UTILISATION		52
5.	UTILISATION — REVOLVING FACILITY LOANS		53
6.	UTILISATION — LETTERS OF CREDIT		55
7.	UTILISATION - US DOLLAR SWINGLINE LOANS		61
8.	LETTERS OF CREDIT		63
9.	REPAYMENT		67
10.	OPTIONAL CURRENCIES		68
11.	US DOLLAR SWINGLINE FACILITY		68
12.	ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION		71
13.	MANDATORY PREPAYMENT		74
14.	RESTRICTIONS		75
15.	INTEREST		75
16.	INTEREST PERIODS		77
17.	CHANGES TO THE CALCULATION OF INTEREST		77
18.	FEES		79
19.	TAX GROSS UP AND INDEMNITIES		81
20.	INCREASED COSTS		96
21.	OTHER INDEMNITIES		97
22.	MITIGATION		99
23.	COSTS AND EXPENSES		99
24.	GUARANTEE AND INDEMNITY		100
25.	REPRESENTATIONS		105
26.	INFORMATION UNDERTAKINGS		111
27.	FINANCIAL COVENANTS		115
28.	GENERAL UNDERTAKINGS		117
29.	EVENTS OF DEFAULT		128

 

i

 

30.	CHANGES TO THE LENDERS		133
31.	CHANGES TO THE OBLIGORS		140
32.	ROLE OF THE AGENT, THE ARRANGING PARTIES, THE GLOBAL COORDINATORS, THE SWINGLINE AGENT, THE ISSUING AGENT AND OTHERS		143
33.	CONDUCT OF BUSINESS BY THE FINANCE PARTIES		151
34.	SHARING AMONG THE FINANCE PARTIES		151
35.	PAYMENT MECHANICS		153
36.	SET-OFF		157
37.	NOTICES		157
38.	CALCULATIONS AND CERTIFICATES		160
39.	TAX CHARACTERIZATION		161
40.	PARTIAL INVALIDITY		161
41.	REMEDIES AND WAIVERS		161
42.	AMENDMENTS AND WAIVERS		161
43.	NEGOTIATED AGREEMENT		165
44.	CONFIDENTIALITY		166
45.	COUNTERPARTS		168
46.	GOVERNING LAW		168
47.	ENFORCEMENT		168
SCHEDULE 1 THE ORIGINAL PARTIES			170
SCHEDULE 2 CONDITIONS PRECEDENT			180
SCHEDULE 3 REQUESTS			185
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE			186
SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT			189
SCHEDULE 6 FORM OF ACCESSION LETTER			191
SCHEDULE 7 FORM OF RESIGNATION LETTER			192
SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE			193
SCHEDULE 9 TIMETABLES - LOANS - NOTICES TO THE AGENT			194
SCHEDULE 10 FORM OF LETTER OF CREDIT			197
SCHEDULE 11 AGENTS’ DETAILS			203
SCHEDULE 12 ORIGINAL BORROWERS’ DETAILS			204
SCHEDULE 13 AGREED SECURITY PRINCIPLES			205
SCHEDULE 14 FORM OF AFFIDAVIT			209
SCHEDULE 15 FORM OF SUBSTITUTE AFFILIATE LENDER DESIGNATION NOTICE			216
SCHEDULE 16 SELF DECLARATION FORM			218

 

ii

 

THIS SENIOR FACILITIES AGREEMENT (this “ Agreement ”) is dated 4 November 2014, amended on 2 April 2015, 28 October 2015, 26 July 2016, 31 July 2017, and 17 December 2018, and made

 

BETWEEN :

 

(1)                                  GTECH S.p.A. , a company incorporated in Italy as a società per azioni (“ GTECH ”);

 

(2)                                  GTECH CORPORATION , a Delaware corporation (“ GTECH Corporation ” and together with GTECH, the “ Original Borrowers ”);

 

(3)                                  THE ENTITIES listed in Part I of Schedule 1 as original guarantors (the “ Original Guarantors ”);

 

(4)                                  J.P. MORGAN LIMITED AND MEDIOBANCA — BANCA DI CREDITO FINANZIARIO S.p.A. (directly or by way of their Affiliates) as global coordinators, bookrunners and mandated lead arrangers (the “ Global Coordinators, Bookrunners and Mandated Lead Arrangers ”);

 

(5)                                  THE ENTITIES listed in Part III of Schedule 1 as bookrunners and mandated lead arrangers (the “ Bookrunners and Mandated Lead Arrangers ”);

 

(6)                                  THE ENTITIES listed in Part IV of Schedule 1 as mandated lead arrangers (the “ Mandated Lead Arrangers ”);

 

(7)                                  THE ENTITIES listed in Part V of Schedule 1 as arrangers (the “ Arrangers ”);

 

(8)                                  THE FINANCIAL INSTITUTIONS listed in Part IIA of Schedule 1 ( The Original Parties ) as lenders (the “ Original Lenders ”);

 

(9)                                  THE ROYAL BANK OF SCOTLAND PLC as facility agent of the other Finance Parties (the “ Agent ”);

 

(10)                           THE ROYAL BANK OF SCOTLAND PLC as issuing agent of the Lenders (the “ Issuing Agent ”);

 

(11)                           KEYBANK NATIONAL ASSOCIATION as agent of the US Dollar Swingline Lenders (the “ Swingline Agent ”); and

 

(12)                           THE FINANCIAL INSTITUTIONS listed in Part IIB of Schedule 1 ( The Original US Dollar Swingline Lenders ) as US Dollar Swingline Lenders (the “ Original US Dollar Swingline Lenders ”).

 

IT IS AGREED as follows:

 

1.                                       DEFINITIONS AND INTERPRETATION

 

1.1                                Definitions

 

In this Agreement:

 

“ Acceptable Bank ” means:

 

3

 

(a)                                  a bank or financial institution which has a rating for its long term unsecured and non credit-enhanced debt obligations of BBB- or higher by S&P or Fitch or Baa3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency; or

 

(b)                                  an Original Lender or any of its Affiliates; or

 

(c)                                   any other bank or financial institution approved by the Agent, the Swingline Agent and the Issuing Agent.

 

“ Accession Letter ” means a document substantially in the form set out in Schedule 6 ( Form of Accession Letter ) or in any other form acceptable to the Parent and the Agent.

 

“ Accounting Principles ” means generally accepted accounting principles in the United States, the United Kingdom and Italy or IFRS.

 

“ Additional Borrower ” means a company which becomes a Borrower in accordance with Clause 31 ( Changes to the Obligors ).

 

“ Additional Guarantor ” means a person which becomes a Guarantor in accordance with Clause 31 ( Changes to the Obligors ).

 

“ Additional Obligor ” means an Additional Borrower or an Additional Guarantor.

 

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Agent.

 

“ Affidavit ” means the affidavit substantially in the form set out in Schedule 14 ( Form of Affidavit ) as approved by the Italian Revenues Agency and made available on the website www.agenziaentrate.gov.it .

 

“ Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.  Notwithstanding the foregoing, in relation to The Royal Bank of Scotland plc, the term “Affiliate” shall include The Royal Bank of Scotland N.V. and each of its subsidiaries or subsidiary undertakings, but shall not include (i) the UK government or any member or instrumentality thereof, including Her Majesty’s Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof) or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including Her Majesty’s Treasury and UK Financial Investments Limited) and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.

 

“ Agent’s Fee Letter ” means the fee letter dated on or about the date of this Agreement between the Agent and the Borrowers.

 

“ Agent’s Spot Rate of Exchange ” means, for a currency, the rate determined by the Agent, the Swingline Agent or the Issuing Agent (as applicable) to be the rate quoted by the person acting in such capacity as the spot rate for the purchase by such person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Agent, the Swingline Agent or the Issuing Agent may obtain such spot rate from another financial institution designated by the Agent, the Swingline Agent or the

 

4

 

Issuing Agent if the person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the Issuing Agent may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Optional Currency.

 

“ Agreed Security Principles ” means the principles set out in Schedule 13 ( Agreed Security Principles ).

 

“ Anti-Corruption Laws ” means all laws, rules and regulations of any jurisdiction applicable to a Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

“ Anti-Terrorism Law ” means each of:

 

(a)                                  the Executive Order;

 

(b)                                  the USA PATRIOT Act;

 

(c)                                   the Money Laundering Control Act of 1986, Public Law 99-570;

 

(d)                                  the Foreign Asset Control Laws;

 

(e)                                   the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.);

 

(f)                                    the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.);

 

(g)                                   the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.);

 

(h)                                  the Trading with the Enemy Act (50 U.S.C. App. §§1 et seq.); and

 

(i)                                      any similar law enacted in the United States of America subsequent to the date of this Agreement.

 

“ Arrangement Fee Letter(s) ” means each arrangement fee letter dated on or about the date of this Agreement among the Original Borrowers and the Arranging Parties.

 

“ Arranging Parties ” means the Global Coordinators, Bookrunners and Mandated Lead Arrangers, the Bookrunners and Mandated Lead Arrangers, the Mandated Lead Arrangers and the Arrangers.

 

“ Assignment Agreement ” means an agreement substantially in the form set out in Schedule 5 ( Form of Assignment Agreement ) or any other form agreed between the relevant assignor and assignee.

 

“ Auditors ” means PricewaterhouseCoopers or any other firm approved in advance by the Agent (such approval not to be unreasonably withheld or delayed).

 

“ Authorisation ” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

 

5

 

“ Availability Period ” means:

 

(a)                                  in relation to Revolving Facility A, the period from and including the date of this Agreement to and including the date falling one (1) Month prior to the Final Maturity Date; and

 

(b)                                  in relation to Revolving Facility B, the period from and including the date of this Agreement to and including the date falling one (1) Month prior to the Final Maturity Date.

 

“ Available Revolving Commitment ” means, in relation to:

 

(a)                                  Revolving Facility A (but without limiting Clause 7.5 ( Relationship with Revolving Facility A), a Lender’s Revolving Facility A Commitment less:

 

(i)                                      the Base Currency Amount of its participation in any outstanding Utilisations (including any Revolving Facility A Loan deemed as such pursuant to Clause 8.3 ( Claims under a Letter of Credit )); and

 

(ii)                                   in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Utilisations (other than the proposed Utilisation) that are due to be made under Revolving Facility A on or before the proposed Utilisation Date; and

 

(b)                                  Revolving Facility B, a Lender’s Revolving Facility B Commitment less:

 

(i)                                      the Base Currency Amount of its participation in any outstanding Utilisations (including any Revolving Facility B Loan deemed as such pursuant to Clause 8.3 ( Claims under a Letter of Credit )); and

 

(ii)                                   in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Utilisations (other than the proposed Utilisation) that are due to be made under Revolving Facility B on or before the proposed Utilisation Date,

 

it being understood in each case that for the purposes of calculating the “Available Revolving Commitment”, any Revolving Facility Commitment of Wells Fargo Bank, NA shall only be deemed to be a Revolving Facility A Commitment or a Revolving Facility B Commitment, as the case may be, from and including the Target Accession Date.

 

For the purposes of calculating a Lender’s Available Revolving Commitment in relation to any proposed Utilisation of Loans, such Lender’s participation in any Loans under Revolving Facility A or as the case may be, Revolving Facility B that are due to be repaid or prepaid on or before the proposed Utilisation Date as well as such Lender’s US Dollar Swingline Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date shall not be deducted from a Lender’s Commitment under such Revolving Facility.

 

For the purposes of calculating a Lender’s Available Revolving Commitment in relation to any proposed Utilisation under a Revolving Facility, such Lender’s participation in any Letters of Credit issued under such Revolving Facility that are due to be reduced or cancelled on or before the proposed Utilisation Date under such Revolving Facility shall not be deducted from a Lender’s Commitment under the relevant Revolving Facility.

 

6

 

“ Available Revolving Facility ” means, in relation to each Revolving Facility, the aggregate for the time being of each Lender’s Available Revolving Commitment in respect of that Revolving Facility.

 

“ Available US Dollar Swingline Commitment ” of a US Dollar Swingline Lender means (but without limiting Clause 7.5 ( Relationship with Revolving Facility A )) that Lender’s US Dollar Swingline Commitment minus:

 

(a)                                  the amount of its participation in any outstanding US Dollar Swingline Loans; and

 

(b)                                  in relation to any proposed Utilisation under the US Dollar Swingline Facility, the amount of its participation in any US Dollar Swingline Loans that are due to be made under the US Dollar Swingline Facility on or before the proposed Utilisation Date,

 

other than that Lender’s participation in any US Dollar Swingline Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

 

“ Available US Dollar Swingline Facility ” means the aggregate for the time being of each US Dollar Swingline Lender’s Available US Dollar Swingline Commitment.

 

“ B&D Holding ” means B&D Holding di Marco Drago e C. S.a.p.a., a company incorporated in Italy as a società in accomandita per azioni .

 

“ Base Currency ” means, in relation to Revolving Facility A, US Dollars and, in respect of Revolving Facility B, Euro.

 

“ Base Currency Amount ” means in relation to a Utilisation, the amount specified in the Utilisation Request delivered by the relevant Borrower for that Utilisation (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is two (2) Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement and, in the case of a Letter of Credit, as adjusted under Clause 6.10 ( Revaluation of Letters of Credit ) to reflect any repayment (other than a repayment arising from a change of currency), prepayment, cancellation or reduction (as applicable) of the Utilisation, as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation.

 

“ Base Reference Bank Rate ” means the arithmetic mean of the rates (rounded upwards to four (4) decimal places) as supplied to the Agent at its request by the Base Reference Banks:

 

(a)                                  in relation to LIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market; or

 

(b)                                  in relation to EURIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the European interbank market,

 

in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.

 

“ Base Reference Banks ” means in relation to LIBOR, the principal London offices of Banca IMI S.p.A., Milan and Bank of America, N.A., London Branch and the principal Milan office

 

7

 

of Mediobanca — Banca di Credito Finanziario S.p.A., Milan and, in relation to EURIBOR, the principal office in London of Banca IMI S.p.A., Milan and Bank of America, N.A., London Branch and the principal Milan office of Mediobanca — Banca di Credito Finanziario S.p.A., Milan or such other banks as may be appointed by the Agent (acting on the instructions of the Majority Lenders) in consultation with the Parent.

 

“ Blacklisted Resident Entity ” means any person that is resident, domiciled, located for Tax purposes, or acting through a lending office qualifying as a Permanent Establishment to which any payment under the Finance Document is effectively connected, in a Blacklisted Jurisdiction.

 

“ Blacklisted Jurisdiction ” means:

 

(a)                                  any country or territory listed as having a privileged tax regime in the Italian Ministerial Decree dated 23 January 2002 and issued by the Italian Minister of Finance, as amended or updated from time to time; or

 

(b)                                  (as from the fiscal year in which the decree to be issued pursuant to article 168-bis of Italian Presidential Decree of 22 December 1986, No. 917 is effective, any country or territory which is not included in the list of countries and territories (the “ White List ”) allowing an adequate exchange of information with the Italian Tax authorities (for the five (5) years starting on the date of publication of such decree in the Official Gazette, countries and territories that are not included in the current black-lists set forth by Italian Ministerial Decrees of 4 May 1999, 21 November 2001 and 23 January 2002, nor in the current white list set forth by Italian Ministerial Decree of 4 September 1996 or included under article 2 of Ministerial Decree 21 November 2001, with regards to the persons therein enclosed, and under article 3 of Ministerial Decree 21 November 2001, with the exclusions of the persons therein enclosed, are deemed to be included in the White List); or

 

(c)                                   upon the occurrence of any Change of Tax Law, any country or territory listed in any regulation referred to under Article 110, Paragraph 10 of Italian Presidential Decree of 22 December 1986, No. 917, as from time to time amended or restated, as not allowing an adequate exchange of information with the Italian Tax authorities.

 

“ Borrower ” means an Original Borrower or an Additional Borrower, unless it has ceased to be a Borrower in accordance with Clause 31 ( Changes to the Obligors ).

 

“ Borrower DTTP Filing ” shall have the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Borrower Materials ” shall have the meaning ascribed thereto in Clause 26.7 ( Posting on electronic system ).

 

“ Break Costs ” means the amount (if any) by which:

 

(a)                                  the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

8

 

exceeds:

 

(b)                                  the amount which such Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

 

“ Bridge Facilities ” means the 364-day senior bridge facility to be entered into in accordance with the terms of the commitment letter dated 15 July 2014 among inter alios the Parent and Credit Suisse AG, Cayman Islands Branch, Barclays Bank PLC, Citigroup Global Markets Limited and Citibank N.A., London Branch, as joint lead bookrunners and joint lead arrangers.

 

“ Business ” means, with respect to the Group:

 

(a)                                  the design, manufacture, sale, lease, delivery, installation, operation or maintenance of hardware and equipment (e.g. computers, computer terminals, on-line lottery terminals, instant ticket vending and dispensing machines, self-service terminals, gaming devices and machines, video lottery terminals, slot machines and amusement with prize machines) (collectively, “ Gaming Hardware ”) and the design, development, sale, licensing, delivery, installation, operation or maintenance of software or game content (collectively, “ Gaming Software ”) pertaining to the operation of games of chance or skill or pari-mutuel or fixed odds games (including lotteries (e.g. on-line, off-line, passive ticket, instant/scratch ticket, break-open ticket and video), pari-mutuel betting, bingo, race tracks, jai alai, legalized bookmaking, off-track betting, casino games, racino, keno, lotto and sports betting) (collectively, “ Games ”) and the provision of any type of ancillary service or product related to or connected with the foregoing;

 

(b)                                  the management, ownership or operation of (i) Games; (ii) Gaming Hardware; (iii) Gaming Software; and (iv) sales channels (retail, interactive and mobile) and the exercise of any governmental power or authority granted to any member of the Group in connection with any of the foregoing businesses set out at (i) to (iv) (including acting as operator/private manager of legal gaming licenses and concessions) and the provision of any products or services related to any of the foregoing businesses set out at (i) to (iv) (including, without limitation, marketing activities and services, player tracking activities and loyalty management, back-office software (player management tools), field service, field sales force management and security and consulting services to customers including software, telecommunications, marketing and other related advisory services or other ancillary tools and platform related services);

 

(c)                                   (i) the provision of any type of government or state benefits processing or eligibility, or payment processing (including tax, utility, fines, fees and duties payment processing) and any products or services related to any of the foregoing businesses set out at paragraphs (a) and (b) and this paragraph (c); and (ii) the exercise of any governmental power or authority granted to any member of the Group in connection with the foregoing businesses described in paragraphs (a) and (b) above and in this paragraph (c);

 

(d)                                  the provision of any type of commercial transaction processing or distribution services, including (i) debit, credit and bill payment transactions and money transfer transactions; (ii) distribution services such as electronic top-up services for pre-paid mobile and fixed-line telephone accounts and ticketing services for sporting, musical and other events; (iii) stored value services such as pre-paid cards for pay TV channels and debit cards; and

 

9

 

(iv) any products or services related to the foregoing businesses described in paragraphs (a) through (c) above and in this paragraph (d);

 

(e)                                   the provision of any type of information technology or any services derived from the technical, management, operational or other expertise developed or used by any member of the Group in connection with any business described herein and any products or services related to the foregoing businesses described in paragraphs (a) through (d) above and in this paragraph (e);

 

(f)                                    the provision of any type of telecommunication services and other communications services similar to those or provided in connection with the businesses described in paragraphs (a) through (d) above;

 

(g)                                   the design, manufacture, printing, sale or distribution (whether physically, electronically or by any other method) of instant, scratch, traditional or other lottery tickets (whether such tickets are physical, electronic or expressed through any other medium and whether such tickets allow the player to remove a cover layer (or any semblance thereof) physically, electronically or by any other method, to reveal whether the ticket is a prize winner) and the provision of any products or services related to the foregoing business described in paragraphs (a) through (f) above and in this paragraph (g);

 

(h)                                  the employment of any hardware or software utilised in any of the businesses described in paragraphs (a) through (g) above whether by sale, lease, license or service in either government or commercial enterprises worldwide;

 

(i)                                      the provision of social games, including, without limitation, through Internet websites and applications for smart phones, tablets and other devices; and

 

(j)                                     any other business that is related to, or which is an extension, development or expansion of, any of the foregoing businesses described in paragraphs (a) through (i).

 

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in Las Vegas, London, Milan and New York and:

 

(a)                                  (in relation to any date for payment or purchase of a currency other than Euro and US Dollars) the principal financial centre of the country of that currency; or

 

(b)                                  (in relation to any date for payment or purchase of Euro) any TARGET Day.

 

“ Calculation Date ” has the meaning given to it in Clause 27.1 ( Financial definitions ).

 

“ Cancellation Date ” means the date specified in the notice which cancels and prepays the Existing Facilities in full.

 

“ Capital Securities ” means the €750,000,000 Subordinated Interest-Deferrable Capital Securities due 2066 and issued on 17 May 2006 by GTECH.

 

“ Cash Collateral Account ” means:

 

(a)                                  an account to be established by the Agent in its name for the deposit of cash cover required to be posted pursuant to paragraph (b) of Clause 6.9 ( Revaluation of Letters of Credit ) and any replacement account thereof; and

 

10

 

(b)                                  an account to be established by the Issuing Agent in its name for the deposit of cash cover required pursuant to Clause 8.6 ( Cash cover by Borrower ) to be posted in respect of Issuing Agent or Lender exposure to a Borrower or a beneficiary and any replacement account thereof.

 

“ Cash Equivalent Investments ” means at any time:

 

(a)                                  demand or overnight deposits, time deposits, Eurodollar time deposits, bankers acceptances or certificates of deposit (in any case maturing within one (1) year after the relevant date of calculation):

 

(i)                                      with or issued by an Acceptable Bank; or

 

(ii)                                   with or issued by a Non-Acceptable Bank; provided that the amount of any such investments does not at any time exceed in the aggregate US$50,000,000 (or its equivalent in any other currencies);

 

(b)                                  any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating and any auction rate, variable rate or demand securities issued or guaranteed by any federal, state or municipal governmental authority of the United States of America, in each case, having a credit rating equal to BBB or higher by S&P or Baa2 or higher by Moody’s, maturing or having a scheduled auction within one (1) year after the relevant date of calculation and not convertible or exchangeable to any other security;

 

(c)                                   commercial paper not convertible or exchangeable to any other security:

 

(i)                                      for which a recognised trading market exists;

 

(ii)                                   issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State;

 

(iii)                                which matures within one (1) year after the relevant date of calculation; and

 

(iv)                               which has a credit rating of either A-1 or higher by S&P or F-1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

(d)                                  sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

 

(e)                                   any investment accessible within thirty (30) days in money market funds which have a credit rating of either A-1 or higher by S&P or F-1 or higher by Fitch Rating Ltd or P-1 or higher by Moody’s and which invest substantially all their assets in securities of the types described in paragraphs (a) through (d) above; or

 

(f)                                    any other debt security approved by the Majority Lenders,

 

11

 

in each case to which any member of the Group is beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security.

 

“ Change of Control ” means any person or group of persons acting in concert (other than any of the entities or companies constituting the Principal Shareholders) gains control of the Parent.

 

For the purpose of the paragraph above “control” means:

 

(a)                                  the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

(i)                                      cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of GTECH (or, following the completion of the Mergers, of Holdco); or

 

(ii)                                   appoint or remove all, or the majority, of the directors or other equivalent officers of GTECH (or, following completion of the Mergers, of Holdco); or

 

(iii)                                give directions with respect to the operating and financial policies of GTECH (or, following completion of the Mergers, of Holdco) with which the directors or other equivalent officers of GTECH (or, following completion of the Mergers, of Holdco) are obliged to comply; or

 

(b)                                  the holding of more than thirty per cent. (30%) of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) save in circumstances where the Principal Shareholders between them continue to hold directly or indirectly (whether by way of ownership of shares, proxy, contract, agency or otherwise) more of such issued share capital than the relevant person or group of persons.

 

For the purpose of the paragraph above “acting in concert” means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in GTECH (or, following completion of the Mergers, of Holdco), to obtain or consolidate control of GTECH (or, following completion of the Mergers, of Holdco).

 

“ Change of Tax Law ” shall have the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Code ” means the United States Internal Revenue Code of 1986 (26 U.S.C. §§ 1 et seq.), as amended from time to time.

 

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“ Compliance Certificate ” means a certificate substantially in the form set out in Schedule 8 ( Form of Compliance Certificate ) or otherwise in form and substance satisfactory to the Agent.

 

“ Confidential Information ” means all information relating to the Parent, any Obligor, the Group, the Finance Documents or a Revolving Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Revolving Facility from either:

 

12

 

(a)                                  any member of the Group or any of its advisers; or

 

(b)                                  another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

(i)                                      is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of the terms of this Agreement; or

 

(ii)                                   is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(iii)                                is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

 

“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in the recommended form of the LMA or in any other form agreed between the Borrowers and the Agent.

 

“ Consolidated Interest Expense ” has the meaning given to it in Clause 27.1 ( Financial Definitions ).

 

“ Default ” means an Event of Default or any event or circumstance specified in Clause 29 ( Events of Default ) which would (with the expiry of a grace period or the giving of notice, the making of any determination (where any provision of Clause 29 expressly requires a determination to be made) or any combination of any of the foregoing) be an Event of Default.

 

“ Defaulting Lender ” means any Lender:

 

(a)                                  which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Lenders’ participation );

 

(b)                                  which has otherwise rescinded or repudiated a Finance Document; or

 

(c)                                   with respect to which an Insolvency Event has occurred and is continuing.

 

Unless, in the case of paragraph (a) above:

 

(i)                                      its failure to pay is caused by:

 

(A)                                administrative or technical error; or

 

(B)                                a Disruption Event; and,

 

13

 

payment is made within one (5) Business Days of its due date; or

 

(ii)                                   the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

“ Designated Person ” means a person or entity:

 

(a)                                  listed in the annex to, or otherwise subject to the provisions of, the Executive Order;

 

(b)                                  named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list; or

 

(c)                                   to the best of the Obligor’s knowledge, with which any Finance Party is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law.

 

“ Designated Website ” has the meaning given to that term in Clause 37.7 ( Use of websites ).

 

“ Dispute ” has the meaning given to that term in paragraph (a) of Clause 47.1 ( Jurisdiction of English courts ).

 

“ Disruption Event ” means either or both of:

 

(a)                                  a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)                                  the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)                                      from performing its payment obligations under the Finance Documents; or

 

(ii)                                   from communicating with other Parties in accordance with the terms of the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

“ Distribution ” means:

 

(a)                                  any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of share capital (or any class of share capital) paid by the Parent; or

 

(b)                                  the payment or distribution of any dividend or share premium reserve by the Parent.

 

“ Double Taxation Treaty ” means a double taxation agreement made between any Relevant Tax Jurisdiction and any other jurisdiction which makes provision for full exemption from, or a reduction in, Tax imposed by such Relevant Tax Jurisdiction on interest.

 

14

 

“ EBITDA ” has the meaning given to it in Clause 27.1 ( Financial Definitions ).

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974 of the United States of America as amended from time to time and any applicable regulations promulgated thereunder.

 

“ ERISA Affiliate ” means, with respect to any Obligor, any person that for the purposes of Title IV of ERISA is from time to time a member of the controlled group of any Obligor or under common control with any Obligor within the meaning of Section 414 of the Code.

 

“ ERISA Event ” means:

 

(a)                                  the occurrence of a reportable event, within the meaning of Section 4043(c) of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC; or

 

(b)                                  the requirements of Section 4043(b) of ERISA applied with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following thirty (30) days;

 

(c)                                   the application for a minimum funding waiver with respect to a Plan;

 

(d)                                  the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA);

 

(e)                                   the cessation of operations at a facility of any Obligor or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA;

 

(f)                                    the withdrawal by any Obligor or any ERISA Affiliate from a Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;

 

(g)                                   the failure to make a required contribution to any Plan that would result in the imposition of an encumbrance under the Code or ERISA;

 

(h)                                  the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan;

 

(i)                                      a determination that any Plan is, or is expected to be, in at-risk status (within the meaning of Title IV of ERISA); or

 

(j)                                     the receipt by any Obligor or ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Obligor or ERISA Affiliate of any notice that a Multiemployer Plan is in endangered or critical status (within the meaning of Section 305 of ERISA).

 

“ EURIBOR ” means, in relation to any Loan in euro:

 

(a)                                  the applicable Screen Rate; or

 

15

 

(b)                                  (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

(c)                                   if:

 

(i)                                      no Screen Rate is available for the currency of that Loan; or

 

(ii)                                   no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,

 

the Base Reference Bank Rate,

 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for Euro and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, EURIBOR shall be deemed to be zero.

 

“ Euro ” or “ € ” means the single currency of the Participating Member States.

 

“ Event of Default ” means any event or circumstance specified as such in Clause 29 ( Events of Default ).

 

“Excluded Assets” means (i) loans to and receivables from other members of the Group, (ii) investments in Subsidiaries and (iii) consolidation entries (e.g., purchase accounting entries for goodwill and fair value adjustments to assets and liabilities) and elimination entries.

 

“Excluded EBITDA Entries” means consolidation entries and elimination entries.

 

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of Security to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such Security becomes effective with respect to such related Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or Security is or becomes illegal.

 

“Executive Order ” means the US Executive Order No. 13224 on Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism.

 

“ Exempt Lender ” shall have the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Existing GTECH Facilities ” means the revolving credit facilities and term loan facility made available under a senior facilities agreement dated 20 December 2010 and made among, inter alios , GTECH (formerly known as Lottomatica Group S.p.A.) as the Parent, GTECH and GTECH Corporation as Borrowers, Banc of America Securities Limited, Banca IMI S.p.A. and Mediobanca — Banca di Credito Finanziario as Global Coordinators, Bookrunners and Mandated Lead Arrangers and Banc of America Securities Limited as Agent (as amended from time to time).

 

16

 

“ Existing GTECH Notes ” means each of the following issuances of debt securities by GTECH:

 

(a)                                  €750,000,000 5.375% Guaranteed Notes due 2016;

 

(b)                                  €500,000,000 5.375% Guaranteed Notes due 2018;

 

(c)                                   €500,000,000 3.500% Guaranteed Notes due 2020; and

 

(d)                                  the Capital Securities.

 

“ Existing Indebtedness ” means any Financial Indebtedness outstanding at any time under the Bridge Facilities, the Existing GTECH Facilities, the Existing GTECH Notes and the Existing Target Facility.

 

“ Existing Lender ” has the meaning given to that term in Clause 30.1 ( Assignments and transfers by the Lenders ).

 

“ Existing Target Facility ” means the revolving credit facility made available under an amended and restated credit agreement dated as of 23 April 2013 and made among inter alios Target, as the Borrower, Wells Fargo Securities, LLC, RBS Securities Inc. and Union Bank, N.A., as Joint Lead Arrangers and Joint Book Runners and The Royal Bank of Scotland plc as Administrative Agent and Swing Line Lender.

 

“ Expiry Date ” means, for a Letter of Credit, the last day of its Term.

 

“ Facility Office ” means in respect of a Lender or an Issuing Agent, the office or offices notified by such Lender or an Issuing Agent to the Agent in writing on or before the date it becomes a Lender or an Issuing Agent (and, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

 

“ Facilities ” means Revolving Facility A, Revolving Facility B and the US Dollar Swingline Facility and “ Facility ” means any one of them.

 

“ FATCA ” means:

 

(a)                                  Sections 1471 to 1474 of the Code or any associated regulations;

 

(b)                                  any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)                                   any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

“ FATCA Application Date ” means:

 

(a)                                  in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

 

17

 

(b)                                  in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or

 

(c)                                   in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,

 

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

 

“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.

 

“ Federal Funds Rate ” means, in relation to any day, the rate per annum equal to:

 

(a)                                  the weighted average of the rates on overnight Federal funds transactions with members of the US Federal Reserve System arranged by Federal funds brokers, as published for that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or

 

(b)                                  if a rate is not so published for any day which is a New York Business Day, the average of the quotations for that day on such transactions received by the Agent from three Federal funds brokers of recognised standing selected by the Agent.

 

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

 

“ Fee Letter ” means each Arrangement Fee Letter, the Agent’s Fee Letter, the Swingline Agent’s Fee Letter and any letter or letters dated on or about the date of this Agreement between, inter alios , the Global Coordinators and the Borrowers (or the Agent and the Borrowers) setting out any of the fees referred to in Clause 18 ( Fees ).

 

“ Final Maturity Date ” means, in relation to each Facility, 26 July 2021.

 

“ Finance Document ” means this Agreement, any Accession Letter, any Compliance Certificate, the Mandate Letter, any Fee Letter, any Resignation Letter, any Utilisation Request and any document, agreement or instrument entered into by an Issuing Agent and a Borrower or in favour of an Issuing Agent and relating to any Letter of Credit and any other document designated as a “ Finance Document ” by the Agent and the Borrowers.

 

“ Finance Party ” means the Agent, the Arranging Parties, any US Dollar Swingline Lender, the Lenders, the Swingline Agent and any Issuing Agent.

 

“ Financial Indebtedness ” means any indebtedness for or in respect of (without double counting):

 

(a)                                  monies borrowed;

 

18

 

(b)                                  any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

(c)                                   any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

(d)                                  the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease;

 

(e)                                   receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

(f)                                    for the purposes of paragraph (e) of the definition of Permitted Guarantee, Clause 28.12 ( Priority Financial Indebtedness ) and an Event of Default only, any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value as at the relevant date on which Financial Indebtedness is calculated (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

 

(g)                                   any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

 

(h)                                  any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or (ii) the agreement is in respect of the supply of assets or services and payment is due more than one hundred and fifty (150) days after the date of supply;

 

(i)                                      any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; and

 

(j)                                     the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) through (i) above;

 

provided that any counter-indemnity obligation in respect of performance or similar bonds, letters of credit (including Letters of Credit) or guarantees, in each case, guaranteeing performance by a member of the Group in relation to a liability (other than a liability in respect of Financial Indebtedness) which arises in the ordinary course of those activities described in the definition of “Business” shall not constitute Financial Indebtedness unless and until, and to the extent that, such performance or similar bonds, letters of credit (including Letters of Credit) or guarantees are drawn or called (as applicable).

 

“ Financial Quarter ” means, with respect to the Parent, each of the quarterly periods ending on 31 March, 30 June, 30 September and 31 December in each Financial Year by reference to which the quarterly accounts of members of the Group are prepared.

 

“ Financial Year ” means each period ending on 31 December in respect of which annual audited consolidated financial statements of the Group are required to be prepared.

 

“ Fitch ” means Fitch Ratings Ltd.

 

19

 

“ Foreign Asset Control Laws ” means the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et seq., any Executive Order or regulation promulgated thereunder and administered by OFAC.

 

“ Fraudulent Transfer Law ” means any applicable US Bankruptcy Law or any applicable US state fraudulent transfer or conveyance law.

 

“ Group ” means GTECH (or, following completion of the Merger, Holdco) and its Subsidiaries from time to time and “ member of the Group ” means any one of them.

 

“ Guarantee Sub-limit ” means:

 

(a)                                  with respect to Revolving Facility A, the lesser of:

 

(i)                                      US$200,000,000 (or its equivalent in other currencies); and

 

(ii)                                   the Total Revolving Facility A Commitments; and

 

(b)                                  with respect to Revolving Facility B, the lesser of:

 

(i)                                      €200,000,000 (or its equivalent in other currencies); and

 

(ii)                                   the Total Revolving Facility B Commitments.

 

“ Guarantor ” means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 31 ( Changes to the Obligors ).

 

“ Hedging Bank ” means any (i) Lender or (ii) Affiliate of a Lender which has delivered an Accession Letter in the form set out in Schedule 6 ( Form of Accession Letter ) in each case which has entered into a hedging arrangement with any member of the Group in respect of a Treasury Transaction.

 

“ Hedging Document ” means the documents entered into between a Hedging Bank and a member of the Group for the purposes of implementing a hedging arrangement in respect of a Treasury Transaction.

 

“ Holdco ” means Georgia Worldwide PLC, a public limited company organised under the laws of England and Wales and a wholly owned Subsidiary of GTECH.

 

“ Holdco Merger ” means the series of transactions which consist principally of (i) the merger of GTECH with and into Holdco and (ii) the payment to GTECH’s shareholders exercising withdrawal rights following such merger, each in accordance with the steps set out in the Structure Memorandum.

 

“ Holding Company ” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

 

“ IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

20

 

“ Impaired Agent ” means the Agent, the Swingline Agent or the Issuing Agent, as the context requires, at any time when:

 

(a)                                  it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b)                                  it otherwise rescinds or repudiates a Finance Document;

 

(c)                                   (if it is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

 

(d)                                  an Insolvency Event has occurred and is continuing with respect to it;

 

(e)                                   unless, in the case of paragraph (a) above:

 

(i)                                      its failure to pay is caused by:

 

(A)                                administrative or technical error; or

 

(B)                                a Disruption Event; and

 

payment is made within five (5) Business Days of its due date; or

 

(ii)                                   it is disputing in good faith whether it is contractually obliged to make the payment in question.

 

“ Increased Costs ” has the meaning given to it in paragraph (b) of Clause 20.1 ( Increased Costs ).

 

“ Initial Margin Trigger Event ” means the first to occur of the following events:

 

(a)                                  the completion of the Transactions;

 

(b)                                  a change of at least one of the two Public Debt Ratings issued by S&P and Moody’s; and

 

(c)                                   termination of the Merger Agreement, or the public disclosure by the Parent that it no longer intends to proceed with the completion of the Mergers;

 

provided that if at any time after the date hereof three Public Debt Ratings have been issued, paragraph (b) shall be interpreted so as to mean a change of at least two of the three Public Debt Ratings.

 

“ Insolvency Event ” in relation to a Finance Party means that the Finance Party:

 

(a)                                  is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)                                  becomes insolvent or is unable to pay its debts as they become due or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)                                   makes a general assignment, arrangement or composition with or for the benefit of its creditors generally;

 

(d)                                  institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the

 

21

 

jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e)                                   has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)                                      results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)                                   is not dismissed, discharged, stayed or restrained in each case within thirty (30) days of the institution or presentation thereof;

 

(f)                                    has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(g)                                   seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

 

(h)                                  has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) days thereafter;

 

(i)                                      causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) through (h) above; or

 

(j)                                     takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

“ Insufficiency ” means, with respect to any Plan, the amount, if any, of its unfunded liabilities, as defined in section 4001(a)(18) of ERISA.

 

“ Intellectual Property ” means:

 

(a)                                  any patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, know-how and other intellectual property rights and interests, whether registered or unregistered; and

 

(b)                                  the benefit of all applications and rights to use such assets of each member of the Group.

 

22

 

“ Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 16 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 15.4 ( Default interest ).

 

“ Interpolated Screen Rate ” means, in relation to LIBOR or EURIBOR for any Loan, the rate which results from interpolating on a linear basis between:

 

(a)                                  the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)                                  the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

each as of the Specified Time on the Quotation Day for the currency of that Loan.

 

“ IRAP” means the Italian Regional tax on productive activities set forth by Italian Legislative Decree of 15 December 1997, No. 446.

 

“ ITA ” means the Income Tax Act 2007 of the United Kingdom.

 

“ Italian Borrower ” means a Borrower which is resident in Italy for Tax purposes and not acting for the purposes of the Finance Documents through a Permanent Establishment located outside Italy.

 

“ Italian Civil Code ” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942.

 

“ Italian Guarantor ” means a Guarantor which is resident in Italy for Tax purposes pursuant to article 73 of Italian Presidential Decree No. 917 of 22 December 1986 not acting for the purposes of the Finance Documents through a Permanent Establishment located outside Italy.

 

“ Italian Holdco ” means Lottomatica Holding S.r.l., a company incorporated in Italy as a società a responsabilità limitata with its registered office at Viale del Campo Boario 56/D 00154 Rome, Italy, and having registration number 13044331000.

 

“ Italian Insolvency Proceeding ” means, with respect to the Parent, each Obligor incorporated in Italy and each Material Subsidiary incorporated in Italy (i) any proceeding concerning its liquidation, bankruptcy, dissolution, reorganisation, moratorium or proceedings similar or analogous thereto including bankruptcy ( fallimento ), arrangements with creditors ( concordato preventivo ), forced administration liquidation ( liquidazione coatta amministrativa ), extraordinary administration of large companies in insolvency ( amministrazione straordinaria delle grandi imprese in stato di insolvenza ), assignments for the benefit of creditors ( cessione di beni ai creditori ), arrangements with creditors in the context of Article 67, paragraph 2, letter d) of the Italian Insolvency Law or restructuring arrangements pursuant to Article 182 bis of Italian Insolvency Law, out-of-court restructurings or winding-up ( liquidazione ) set out in the Italian Insolvency Law, the Italian Civil Code or any other applicable Italian laws, as well as any other proceeding defined as “ procedura di risanamento ” or “ procedura concorsuale ” under Legislative Decree no. 170 dated 21 May 2004, and (ii) any equivalent or analogous liquidation, insolvency or reorganisation proceedings under the applicable laws, legislation, rules and regulations of any other jurisdiction.

 

“ Italian Insolvency Law ” means Royal Decree No. 267 of 16 March 1942.

 

23

 

“ Italian Obligor ” means an Italian Borrower or an Italian Guarantor.

 

“ Italian Opco ” means an Italian newly incorporated Subsidiary of the Parent to which the operating assets and liabilities of the Parent are contributed pursuant to the Italian Reorganisation and in accordance with the Structure Memorandum.

 

“ Italian Qualifying Lender ” shall have the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Italian Reorganisation ” means the series of transactions which consists principally of (i) the contribution of the operating assets of GTECH to Italian Opco, (ii) the assumption of the liabilities related to such assets by Italian Opco and (iii) the contribution of shares in the Italian Opco and certain other Subsidiaries of GTECH by GTECH into Italian Holdco, each in accordance with the steps set out in the Structure Memorandum.

 

“ Italian Treaty Lender ” shall have the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Joint Venture ” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity in which the Group has a 50 per cent. or a minority interest and which is accordingly not consolidated in the financial statements of that member of the Group as a Subsidiary, it being understood however that in each case the proportion of the Group’s interest in the joint venture entity may be consolidated in the financial statements of the relevant member of the Group on a proportional basis.

 

“ L/C Proportion ” means, in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Commitment to the Available Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by such Lender.

 

“ Legal Opinion ” means any legal opinion delivered to the Agent under Clause 4.1 ( Initial Conditions Precedent ) or Clause 31 ( Changes to the Obligors ).

 

“ Legal Reservations ” means any matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions.

 

“ Lender ” means:

 

(a)                                  any Original Lender; and

 

(b)                                  any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 30 ( Changes to the Lenders ),

 

which, in each case, has not ceased to be a Party in accordance with the terms of this Agreement.

 

“ Letter of Credit ” means:

 

(a)                                  a syndicated letter of credit substantially in the form set out in Schedule 10 ( Form of Letter of Credit ); or

 

(b)                                  any syndicated letter of credit, syndicated guarantee, syndicated indemnity or other instrument of a similar nature in a form requested by the Borrowers which meets the minimum requirements of Clause 6.6 ( Form of Letters of Credit ) and agreed by the Agent

 

24

 

and the Issuing Agent (acting on the instructions of all the Lenders under the Revolving Facility pursuant to which it is requested),

 

in each case issued or deemed issued under this Agreement.

 

“ Letter of Credit Fee ” means the fee payable to the Agent (for the account of each Lender participating in the relevant Letter of Credit) in accordance with the provisions set out in Clause 18.6 ( Fees payable in respect of Letters of Credit ).

 

“ LIBOR ” means, in relation to any Loan in any currency other than Euro:

 

(a)                                  the applicable Screen Rate;

 

(b)                                  (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

(c)                                   if:

 

(i)                                      no Screen Rate is available for the currency of that Loan; or

 

(ii)                                   no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,

 

the Base Reference Bank Rate,

 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, LIBOR shall be deemed to be zero.

 

“ LMA ” means the Loan Market Association.

 

“ Loan ” means a Revolving Facility A Loan, a Revolving Facility B Loan or a US Dollar Swingline Loan.

 

“Majority Lenders ” means a Lender or Lenders whose Revolving Facility Commitments aggregate more than 66 2 / 3  per cent. of the Total Facility Commitments (or, if the Total Facility Commitments have been reduced to zero, aggregated more than 66 2 / 3  per cent. of the Total Facility Commitments immediately prior to that reduction).

 

“ Mandate Letter ” means the appointment letter dated 5 September 2014 among GTECH, GTECH Corporation and the Global Coordinators.

 

“ Margin ” means:

 

(a)                                  at any time prior to an Initial Margin Trigger Event, 1.60 per cent. per annum; and

 

(b)                                  from and including an Initial Margin Trigger Event until the Final Maturity Date for Revolving Facility A and Revolving Facility B, such percentage per annum as is set out below in the column “Applicable Margin” in respect of the Public Debt Rating applicable below:

 

25

 

Public Debt Ratings		Applicable Margin
BBB/Baa2 or higher		1.00	%
BBB-/Baa3		1.40	%
BB+/Ba1		1.80	%
BB/Ba2		2.20	%
BB-/Ba3 or lower		2.75	%

 

Provided that :

 

(a)                                  in the event of split Public Debt Ratings, the Applicable Margin shall be the average of the two (2) Applicable Margins;

 

(b)                                  in the event of withdrawal of a Public Debt Rating, the Applicable Margin shall be such rate which is the average of the applicable rate for the remaining Public Debt Rating and 2.75%; and

 

(c)                                   in the event of withdrawal of all Public Debt Ratings, the Applicable Margin shall be 2.75% until at least one Public Debt Rating is reinstated;

 

(d)                                  any increase or decrease in the Margin for a Loan shall take effect on the date which is the first day of the next Interest Period for that Loan following the occurrence of the relevant Margin Rating Event;

 

(e)                                   any increase or decrease in the Margin for a Loan for the purpose of calculation of the Commitment Fee shall take effect as of the date on which the relevant Margin Rating Event occurs;

 

(f)                                    in circumstances where there is no Loan outstanding, the Margin for the purposes of calculating any commitment fee shall nevertheless increase or decrease in accordance with the table set out in paragraph (b) above; and

 

(g)                                   notwithstanding paragraphs (a) through (f) above, when an Event of Default is continuing, the highest rate set out in the table in paragraph (b) above shall apply effective from the date on which the Event of Default occurs,

 

provided that if at any time after the date hereof three Public Debt Ratings have been issued, then the Public Debt Ratings in the table above and the references to Public Debt Ratings in paragraphs (a) through (c) above shall be interpreted on the basis of the three Public Debt Ratings such that references to “two (2)” shall be to “three (3)”.

 

“ Margin Rating Event ” means:

 

(a)                                  the Initial Margin Trigger Event; and

 

(b)                                  subsequently, a change of at least one of the two Public Debt Ratings issued by S&P and Moody’s;

 

26

 

provided that if at any time after the date hereof three Public Debt Ratings have been issued, paragraph (b) shall be interpreted so as to mean a change of at least two of the three Public Debt Ratings.

 

“ Margin Stock ” means “margin stock” as defined in Regulation U.

 

“ Market Disruption Event ” has the meaning given to it in Clause 17.2 ( Market disruption ).

 

“ Material Adverse Effect ” means a material adverse effect on:

 

(a)                                  the ability of the Obligors (taken as a whole) to perform in a timely manner their payment obligations arising under the Finance Documents, the obligations arising under Clause 27 ( Financial Covenants ) or any other material obligations under any of the Finance Documents;

 

(b)                                  the business, financial condition, assets or revenues of the Group taken as a whole; or

 

(c)                                   the legality, validity or enforceability against the Obligors of any Finance Document subject always to the Legal Reservations.

 

“ Material Subsidiary ” means a Subsidiary of the Parent whose:

 

(a)                                  total unconsolidated assets excluding the Excluded Assets are greater than or equal to ten per cent. (10%) (if the Subsidiary of the Parent is not a Guarantor) or five per cent. (5%) (if the Subsidiary is a Guarantor) of the total consolidated assets of the Group excluding the Excluded Assets, or

 

(b)                                  unconsolidated earnings before interest, taxes, depreciation and amortization (calculated on the same basis that EBITDA of the Group is calculated but excluding the Excluded EBITDA Entries are greater than or equal to ten per cent. (10%) (if the Subsidiary of the Parent is not a Guarantor) or five per cent. (5%) (if the Subsidiary is a Guarantor) of the EBITDA of the Group excluding the Excluded EBITDA Entries.

 

A Material Subsidiary will be determined by reference to the latest balance sheet and income statement (or, if available, audited financial statements) of such Subsidiary and the latest audited consolidated financial statements of the Group.  However, if a Subsidiary has been acquired since the date as at which the latest audited consolidated financial statements of the Group were prepared, the balance sheet and income statement (or, if available, audited financial statements) shall be deemed to be adjusted in order to take into account the acquisition of that Subsidiary (that adjustment being certified by an authorised officer of the Parent as representing an accurate reflection of the revised consolidated assets or EBITDA of the Group if so requested by the Agent).

 

“ Maximum Amount ” has the meaning given to it in Clause 24.13 ( Guarantee limitations applicable to GTECH as Parent ).

 

“ Merger Agreement ” means the agreement and plan of merger agreement dated 15 July 2014 and entered into among GTECH, GTECH Corporation (solely with respect to Section 5.02(a) and Article VIII), Holdco, Target Merger Sub and Target relating to the Mergers.

 

27

 

“ Merger Capital Reduction ” means the initial proposed court-approved reduction of capital of Holdco under the UK Companies Act 2006, to be implemented following completion of the Mergers as described in and effected in accordance with, the Structure Memorandum.

 

“ Mergers ” means the Holdco Merger and the Target Merger.

 

“ Month ” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)                                  (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)                                  if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(c)                                   if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

The above rules will only apply to the last Month of any period.  “ Monthly ” shall be construed accordingly.

 

“ Moody’s ” means Moody’s Investor Services Limited.

 

“ Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, then or at any time during the previous five (5) years maintained for, or contributed to (or to which there is or was an obligation to contribute) on behalf of, employees of any Obligor or ERISA Affiliates.

 

“ Multiple Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that:

 

(a)                                  is maintained for employees of any Obligor or any ERISA Affiliate and at least one person (other than the Obligors and the ERISA Affiliates); or

 

(b)                                  was so maintained and in respect of which any Obligor or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ New Lender ” has the meaning given to it in Clause 30.1 ( Assignment and transfers by the Lenders ).

 

“ New York Business Day ” means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York City.

 

“ Non-Acceptable Bank ” means any bank or financial institution that does not meet the requirements of paragraph (a) or (b) of the definition of “Acceptable Bank”.

 

“ Non-Consenting Lender ” has the meaning given to it in paragraph (c) of Clause 42.3 ( Replacement of Lender ).

 

28

 

“ Obligor ” means a Borrower or a Guarantor.

 

“ Obligor’s Agent ” means the Parent, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause (a) ( Obligors’ Agent ).

 

“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“ Optional Currency ” means, as applicable, US Dollars, Euro, Pounds Sterling and any other currency agreed by all Lenders and, in the case of a Letter of Credit, another currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 ( Conditions relating to Optional Currencies ).

 

“ Original Financial Statements ” means:

 

(a)                                  in relation to the Parent, the audited consolidated financial statements of the Group for the Financial Year ended 31 December 2013; and

 

(b)                                  in relation to GTECH Corporation, its audited financial statements for its financial year ended 31 December 2013.

 

“ Original Guarantors ” has the meaning given to it in the preamble of this Agreement.

 

“ Original Lenders ” has the meaning given to it in the preamble to this Agreement.

 

“ Original Obligor ” means an Original Borrower or an Original Guarantor.

 

“ Original US Dollar Swingline Lenders ” has the meaning given to it in the preamble to this Agreement.

 

“ Overall Facility A Commitment ” of a Lender means:

 

(a)                                  its Revolving Facility A Commitment; or

 

(b)                                  in the case of a US Dollar Swingline Lender which does not have a Revolving Facility A Commitment, the Revolving Facility A Commitment of a Lender which is its Affiliate.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation of United States of America established pursuant to Section 4002 of ERISA (or any successor).

 

“ Paper Form Lender ” has the meaning given to it in paragraph (a) of Clause 37.7 ( Use of Websites ).

 

“ Parent ” means GTECH and, following completion of the Holdco Merger, Holdco.

 

“ Pari Passu Indebtedness ” has the meaning given to it in Clause 28.23 ( Security following Debt Ratings decrease ).

 

“ Participating Member State ” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“ Party ” means a party to this Agreement.

 

29

 

“ Permanent Establishment ” means any fixed base of business ( stabile organizzazione ) regulated by article 162 of Presidential Decree No. 917 of 22 December 1986, Article 5 of the Organization for Economic Cooperation and Development Model Tax Convention and or any equivalent provision provided for by any relevant legislation.

 

“ Permitted Acquisition ” means any and all of the following:

 

(a)                                  any acquisition which constitutes a Permitted Transaction;

 

(b)                                  an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;

 

(c)                                   an acquisition of shares or securities pursuant to a Permitted Acquisition Share Issue;

 

(d)                                  an acquisition of securities or other investments which are Cash Equivalent Investments;

 

(e)                                   an acquisition in circumstances constituting a Joint Venture or the incorporation of a Joint Venture;

 

(f)                                    the incorporation or other organization of a person who upon incorporation or other organization becomes a member of the Group (and such incorporation may be by way of subscription for shares in cash or a transfer of assets permitted by this Agreement in lieu of cash); or

 

(g)                                   an acquisition by way of purchase, merger, consolidation or otherwise, of (A) at least a controlling interest in a person or (B) a business, line of business, division, or other business unit of a person, or an undertaking carried on as a going concern, but only if:

 

(i)                                      no Default is continuing on the closing date for the acquisition or would occur as a result of the acquisition;

 

(ii)                                   the acquired company, business or undertaking is (A) principally engaged in any part of the Business or is a Holding Company with respect to a company which is principally engaged in any part of the Business or (B) is empowered under its constitutional documents or by-laws to be engaged in any part of the Business; and

 

either

 

(A)                                the consideration (including associated costs and expenses) for the acquisition and any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in the acquired company (or any such business) at the date of acquisition (when aggregated with the consideration (including associated costs and expenses) for any other Permitted Acquisition and any Financial Indebtedness or other assumed actual or contingent liability, in each case remaining in any such acquired companies or businesses at the time of acquisition (A) does not exceed in aggregate in any Financial Year of the Parent, ten per cent. (10%) of the consolidated total assets of the Group and (B) does not exceed in aggregate at any time, US$2,250,000,000 (or its equivalent in other currencies) unless and until the Group obtains a Public Debt Rating

 

30

 

upgrade to BBB by S&P and Baa2 by Moody’s, in which case the cap of US$2,250,000,000 (or its equivalent in other currencies) will cease to apply for such time as the Group retains such ratings upgrade;

 

or

 

(B)                                upon confirmation of the acquisition, each of Moody’s and S&P disclose publicly that the Group has a Public Debt Rating and its indebtedness has, in each case, a credit rating of at least Baa3 and BBB-, respectively;

 

provided that if at any time after the date hereof three Public Debt Ratings have been issued, this paragraph (g) shall be interpreted so as to mean the date on which at least two of the three Public Debt Ratings issued by the Rating Agencies are so upgraded or disclosed.

 

“ Permitted Acquisition Share Issue ” means:

 

(a)                                  an issue of shares constituting a Permitted Transaction;

 

(b)                                  an issue of shares by one wholly owned Subsidiary of the Parent to its direct Holding Company which is another wholly owned Subsidiary of the Parent or to the Parent (or to another member of the Group which is the shareholder); or

 

(c)                                   an issue of shares by a Subsidiary of the Parent to the member of the Group which is its direct Holding Company and any minority shareholder in the relevant Subsidiary.

 

“ Permitted Disposal ” means any sale, lease, licence, transfer or other disposal:

 

(a)                                  which constitutes a Permitted Transaction;

 

(b)                                  of trading stock or inventory, supplies, materials, assets or cash made by any member of the Group in the ordinary course of business of the disposing entity;

 

(c)                                   of any asset by a member of the Group (the “ Disposing Company ”) to another member of the Group (the “ Acquiring Company ”), but if:

 

(i)                                      the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor; and

 

(ii)                                   the Disposing Company is a Guarantor, the Acquiring Company must be (A) a Borrower, (B) a Guarantor guaranteeing at all times an amount no less than the amount guaranteed by the Disposing Company or (C) a Guarantor guaranteeing an amount less than the amount guaranteed by the Disposing Company provided that the guarantee of such Guarantor (including the Italian Holdco) is limited solely to the extent required to comply with the Agreed Security Principles,

 

it being understood that (x) if any of the assets being sold, leased, licensed, transferred or otherwise disposed of are at such time subject to Security in favour of the Lenders, then the Agent is reasonably satisfied that the Lenders will continue to benefit from the same or equivalent Security; and (y) an initial disposal of assets by a member of the Group to another member of the Group which initial disposal is made to effect a

 

31

 

subsequent disposal to a member of the Group or to a third party that is not a member of the Group and that is otherwise permitted under the definition of “Permitted Disposal” shall not be considered for the purposes of this paragraph (c) or paragraph (i) below as long as such subsequent disposal is completed within two (2) months following the date of such initial disposal. For the avoidance of doubt, any subsequent disposal to a third party that is not a member of the Group shall be considered for the purposes of paragraph (i) below;

 

(d)                                  of assets (other than shares), in exchange for other assets substantially comparable or superior as to type, value or quality;

 

(e)                                   of (i) obsolete, worn out, inefficient or redundant vehicles, plant fixtures, equipment or other property or (ii) leases or subleases of Real Property (including surplus office and parking space);

 

(f)                                    of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;

 

(g)                                   constituted by a licence of intellectual property rights permitted by Clause 28.14 ( Intellectual Property );

 

(h)                                  by a member of the Group of any of its receivables on non-recourse terms where the relevant sale or disposal of such receivables does not constitute Financial Indebtedness for the purposes of the relevant applicable Accounting Principles and; provided that it is on normal commercial terms and in the ordinary course of business; or

 

(i)                                      of assets for cash where the greater of the fair market value and net consideration receivable (when aggregated with the greater of the fair market value and net consideration receivable for any other sale, lease, licence, transfer or other disposal not allowed under the preceding paragraphs or as a Permitted Merger) does not exceed (A) in any Financial Year of the Parent, seven and one-half per cent. (7.5%) of the consolidated total assets of the Group and (B) at any time, the sum of (i) the greater of the fair market value and net consideration receivable for all sales, leases, licenses, transfers and other disposals not allowed under the preceding paragraphs or as a Permitted Merger from the date of this Agreement through to 30 June 2017 and (ii) US$1,125,000,000 (or its equivalent in other currencies),

 

provided that nothing in this Agreement will be taken to permit the disposal of a Borrower or a Guarantor (whether by Third Party Disposal or otherwise) save in circumstances where (x) prior to the disposal, the relevant Borrower or Guarantor resigns as a Borrower or a Guarantor (or both, as they case may be) in accordance with paragraph (a) of Clause 31.3 ( Resignation of an Obligor ) and satisfies the conditions set out in, and its resignation is accepted pursuant to, paragraph (b) of Clause 31.3 ( Resignation of an Obligor ) or (y) the disposal of the relevant Borrower or Guarantor is permitted pursuant to paragraph (c) above.

 

“ Permitted Guarantee ” means:

 

(a)                                  any guarantee or counter-indemnity by a member of the Group which constitutes a Permitted Transaction;

 

(b)                                  the endorsement of negotiable instruments in the ordinary course of business;

 

32

 

(c)                                   any guarantee guaranteeing performance by a member of the Group in relation to an obligation or liability (other than an obligation or liability in respect of Financial Indebtedness) which arises in the ordinary course of business;

 

(d)                                  any counter-indemnities for performance or similar bond or letters of credit, or any guarantees, in each case guaranteeing performance by a member of the Group in relation to a liability (other than a liability in respect of Financial Indebtedness, save to the extent arising under the relevant performance or similar bond, letter of credit or guarantee itself) which arises in the ordinary course of business or by operation of law, including by way of example and without limitation, counter-indemnities for guarantees or bonds issued on behalf of any member of the Group in the ordinary course of business in respect of tax claims or otherwise as a result of any legal proceedings brought against any member of the Group, in each case which are being contested in good faith;

 

(e)                                   any guarantee by a Guarantor of Financial Indebtedness not restricted under Clause 28.12 ( Priority Financial Indebtedness ), including any guarantee issued pursuant to the terms of this Agreement;

 

(f)                                    any guarantee given in respect of the netting or set-off arrangements permitted pursuant to paragraph (d) of the definition of “Permitted Security”; or

 

(g)                                   any other guarantee made by any member of the Group so long as the aggregate amount of all such guarantees outstanding does not exceed US$75,000,000 (or its equivalent in other currencies) at any time.

 

“ Permitted Loan ” means:

 

(a)                                  any loan extended or made which constitutes a Permitted Transaction;

 

(b)                                  any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of business;

 

(c)                                   any financing extended in connection with the sale of products manufactured by a member of the Group by (i) a member of the Group or (ii) a distributor of products manufactured by a member of the Group to a customer, in each case on normal commercial terms and in the ordinary course of such member’s trade or business;

 

(d)                                  a loan extended or made by a member of the Group to another member of the Group;

 

(e)                                   a loan extended or made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans outstanding to employees and directors by members of the Group does not exceed US$15,000,000 (or its equivalent in other currencies) at any time; and

 

(f)                                    loans extended or made by any member of the Group (other than a loan made by a member of the Group to another member of the Group) so long as the aggregate amount of all such loans outstanding does not exceed US$35,000,000 (or its equivalent in other currencies) at any time.

 

33

 

“ Permitted Merger ” means:

 

(a)                                  any solvent amalgamation, merger, consolidation, intra-group demerger, corporate reconstruction, liquidation or reorganisation which constitutes a Permitted Transaction;

 

(b)                                  any amalgamation, merger or consolidation by and between Obligors on a solvent basis or any intra-group demergers or corporate reconstructions by Obligors on a solvent basis; provided that in the case of a merger between a Borrower and an Obligor which is not a Borrower, such Borrower shall be the surviving entity, obtain all of the rights and assume all of the obligations and liabilities of the other Obligor and confirm all existing Security granted by such other Obligor and such Security is not materially and adversely affected;

 

(c)                                   any amalgamation, merger or consolidation by and between an Obligor and any member of the Group on a solvent basis which is not an Obligor; provided that either (i) the Obligor is the surviving entity, obtains all of the rights and assumes all of the obligations and liabilities of the other member of the Group and confirms all existing Security granted by such other member of the Group or (ii) the non-Obligor is the surviving entity, incorporated, organised or formed under the laws of the jurisdiction under which the Obligor is incorporated, organized or formed, accedes to this Agreement as a Borrower or a Guarantor, as applicable, obtains all of the rights and assumes all of the obligations and liabilities of the other member of the Group and confirms all existing Security previously granted by such Obligor and such Security is not materially and adversely affected;

 

(d)                                  any amalgamation, merger or consolidation by and between members of the Group which are not Obligors;

 

(e)                                   any intra-group de-merger, corporate reconstruction, liquidation or reorganisation of any member of the Group which is not an Obligor; and

 

(f)                                    the Merger Reduction of Capital.

 

“ Permitted Restricted Payment ” means the any of the following:

 

(a)                                  a Permitted Transaction;

 

(b)                                  subject to the proviso below, for each Financial Year, Restricted Payments in an aggregate amount up to:

 

(i)                                      US$400,000,000 for each Financial Year if the Public Debt Ratings are equal to or higher than BB+ and Ba1; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (i) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable; and

 

(ii)                                   US$300,000,000 for each Financial Year if any Public Debt Rating is lower than BB+ or Ba1 or any Public Debt Rating is withdrawn; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this subparagraph (ii) shall be interpreted to mean two of the three Public Debt Ratings issued by the Rating Agencies being lower than BB+ or Ba1 as applicable,

 

34

 

subject in each case to the Parent certifying that the ratio of (x) the sum of Total Net Debt at the last day of most recent Relevant Period for which a Compliance Certificate was due pursuant to Clause 26.2 (Provision and contents of Compliance Certificate) and the amount of the Restricted Payment to (y) EBITDA for such Relevant Period does not exceed (1)  ninety per cent (90%) (for all Relevant Periods other than the Relevant Periods set forth in clause (2)) or (2) ninety-five per cent (95%) (for the Relevant Periods ending 31 December 2018, 31 March 2019, 30 June 2019, 30 September 2019 and 31 December 2019) of the ratio of Total Net Debt to EBITDA applicable for such Relevant Period pursuant to Clause 27.2(b) (Financial condition);

 

(c)                                   for the period starting on 1 January 2016 and ending on the Final Maturity Date and for so long as the Public Debt Ratings are equal to or higher than BB+ and Ba1 (in addition to amounts permitted under paragraphs (a) and (b) above), Share Buy Backs in an aggregate amount up to US$150,000,000; provided that if at any time after the date hereof three Public Debt Ratings have been issued, this paragraph (e) shall be interpreted to mean at least two of the three Public Debt Ratings issued by the Rating Agencies being equal to or higher than BB+ or Ba1 as applicable;

 

(d)                                  any Shareholder Payments in the ordinary course of business and on market terms in an aggregate amount up to US$3,000,000 in any Financial Year; and

 

(e)                                   any Restricted Payments made in connection with share capital of the Parent owned by management of the Group as part of an employee compensation plan, including stock based compensation and management incentive plans.

 

“ Permitted Security ” means:

 

(a)                                  any Security granted pursuant to Clause 28.23(a) ( Security following Debt Ratings Decrease );

 

(b)                                  any Security or Quasi-Security arising as a result of a Permitted Transaction and subject always to Clause 28.23(a) ( Security following Debt Ratings Decrease );

 

(c)                                   any lien arising by operation of law and in the ordinary course of its trading and not as a result of any default or omission on the part of any member of the Group;

 

(d)                                  Security constituted by any netting or set off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances (other than cash collateral) of members of the Group; provided that such arrangement does not (i) permit or require credit balances of Obligors to be netted or set off against debit balances of non-Obligors or (ii) give rise to other Security over the assets of Obligors in support of the liabilities of non-Obligors;

 

(e)                                   any Security or Quasi-Security over or affecting any assets acquired by a member of the Group after the date of this Agreement if:

 

(i)                                      the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

 

(ii)                                   the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group and is not guaranteed by a member of the Group; and

 

35

 

(iii)                                the Security or Quasi-Security is removed or discharged within three (3) months of the date of acquisition of such asset;

 

(f)                                    any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group if

 

(i)                                      the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

 

(ii)                                   the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

(iii)                                the Security or Quasi-Security is removed or discharged within three (3) months of the date of acquisition of such asset;

 

(g)                                   any Security arising under any retention of title, hire purchase or conditional sale arrangement in respect of goods or assets supplied to any member of the Group in the ordinary course of the trading of such Group member and on the supplier’s standard or usual terms in respect of the goods or assets supplied (and not arising as a result of any default or omission by any member of the Group);

 

(h)                                  any Security or Quasi-Security arising as a result of any disposal which is a Permitted Disposal;

 

(i)                                      any Security constituted by rights of set off existing in the ordinary course of trading activities between any member of the Group and its respective suppliers or customers (and not as a result of any default or omission by any member of the Group);

 

(j)                                     any rights of set-off or netting on market standard terms arising under derivative transactions not prohibited by Clause 28.15 ( No Speculative Hedging Arrangements );

 

(k)                                  any Security over cash or goods or documents of title to goods and insurances in favour of the Issuing Agent by a member of the Group arising in the ordinary course of its trade or as a result of Clause 8.6 ( Cash cover by a Borrower ) (and not by reason of a default or omission by any member of the Group);

 

(l)                                      any Security arising pursuant to an order of attachment or injunction restraining disposal of assets or similar legal process arising in connection with court proceedings which are contested by any member of the Group in good faith by appropriate proceedings with a reasonable prospect of success and which legal process does not constitute a Default;

 

(m)                              any Security arising (other than by way of affirmative action taken by or in favour of any taxation authority or any government authority or organization) in respect of Taxes, assessments or governmental charges which are either (i) being contested by the relevant member of the Group in good faith by appropriate proceedings and with a reasonable prospect of success, with respect to which appropriate reserves have been made on the relevant financial statement of the subject member of the Group, or (ii) not yet due and payable;

 

36

 

(n)                                  any Security arising in connection with, and deposits made to secure, the payment and performance of bids, trade contracts (other than for borrowed money), contracts with respect to the business of the Group, leases, statutory obligations, surety and appeal bonds, performance bonds, indemnity agreements in favour of issuers of bonds and other obligations of a like nature, and rights of usufruct and similar rights to continued use and possession of lottery equipment or other property in favour of lottery customers, in each case incurred in the ordinary course of business; and

 

(o)                                  any Security not permitted by Clause 28.7 ( Negative Pledge ) securing Financial Indebtedness incurred in the ordinary course of business of the Group which in aggregate does not at any time exceed US$125,000,000 (or its equivalent in other currencies).

 

“ Permitted Transaction ” means:

 

(a)                                  any transaction set out in the Structure Memorandum, as well as any other transaction which is necessary as a consequence of or ancillary to the implementation of such transactions, including, without limitation, the payment of any Rescission Payments in an aggregate amount which is less than or equal to twenty per cent. (20%) of the aggregate share capital of GTECH;

 

(b)                                  any loans, bond or other financing contracted or incurred by any member of the Group constituting Pari Passu Indebtedness, including, without limitation, pursuant to the Bridge Facilities, subject, always to Clause 28.25 ( MFN to Financial Covenants and Mandatory Prepayments );

 

(c)                                   Security granted by any member of the Group in favour of the creditors of Pari Passu Indebtedness, subject always to Clause 28.23 ( Security following Debt Ratings Decrease ); and

 

(d)                                  any guarantee granted by any member of the Group in favour of the creditors of Pari Passu Indebtedness, subject always to Clause 28.24(c) ( Guarantor Threshold Test and Additional Guarantors ).

 

“ Plan ” means a Single Employer Plan or a Multiple Employer Plan.

 

“ Platform ” has the meaning given to it in Clause 26.7 ( Posting on electronic system ).

 

“ Principal Shareholders ” means De Agostini S.p.A. (a company incorporated in Italy as a società per azioni ), its Subsidiaries or B&D Holding, or any other entity; provided that in each case, it is controlled by one or more of the beneficial holders, provided further that for the purposes of this definition, an entity or B&D Holding shall be treated as being controlled, directly or indirectly, by any such holder(s) if the latter (whether by way of ownership of shares, proxy, contract, agency or otherwise) have or has (as applicable) the power to (i) appoint or remove all, or the majority, of its directors or other equivalent officers or (ii) direct its operating and financial policies.  For the purpose of this definition, “ beneficial holder ” means each of the beneficial holders that directly or indirectly control B&D Holding as at 4 November 2014 (an “ original beneficial holder ”) and any spouse, legal or testamentary heir, legal or testamentary executor and legal or testamentary administrator of an original beneficial holder.

 

“ Prohibited Jurisdiction ” means:

 

(a)                                  the United States of America, Hong Kong, Israel and Turkey;

 

37

 

(b)                                  any jurisdiction in which a licence is required to conduct internet gambling activities and in which the Group does not possess the relevant licence; and

 

(c)                                   each other jurisdiction which the Group reasonably believes, based on advice of reputable and experienced counsel, prohibits, or is reasonably capable of enforcing against any member of the Group prohibitions on, internet gambling.

 

“ Protected Party ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Public Debt Rating ” means each solicited long-term credit rating of the Parent issued by a Rating Agency for an issue of debt or debt securities issued or guaranteed by, the Parent, where such rating is based primarily on the unsecured credit risk of the Parent.

 

“ Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding US$10,000,000 at the time the relevant Guarantee or grant of the relevant Security becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“ Qualifying Lender ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Quasi-Security ” has the meaning given to it in Clause 28.7 ( Negative pledge ).

 

“ Quotation Day ” means:

 

(a)                                  the second TARGET Day before the first day of a Revolving Facility for a Loan denominated in Euro; or

 

(b)                                  the second Business Day before the first day of a Revolving Facility for a Loan denominated in any currency other than Euro.

 

“ Rating Agencies ” means Fitch, Moody’s and S&P and “ Rating Agency ” means any of them.

 

“ Real Property ” means:

 

(a)                                  any freehold, leasehold or immovable property; and

 

(b)                                  any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of that freehold, leasehold or immovable property.

 

“ Recovering Finance Party ” has the meaning given to Clause 34.1 ( Payments to Finance Parties ).

 

“ Regulation T ”, “ Regulation U ” or “ Regulation X ” means Regulation T, U or X, as the case may be, of the Board of Governors of the Federal Reserve System of the United States, as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“ Related Fund ” in relation to a trust, fund or other entity (the “ first fund ”), means another trust, fund or other entity which has the same fund manager or asset manager as is owned by the same person as the first trust, fund or other entity.

 

38

 

“ Related Parties ” means, with respect to any person, such person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such person and of such person’s Affiliates.

 

“ Relevant Interbank Market ” means, in relation to Euro, the European interbank market and, in relation to any other currency, the London interbank market.

 

“ Relevant Jurisdiction ” means, in relation to an Obligor:

 

(a)                                  its jurisdiction of incorporation; and

 

(b)                                  any jurisdiction where it conducts its business.

 

“Relevant Sub-Participant” means any sub-participant who, under Italian law or the application of the Organization for Economic Cooperation and Development’s guidance relating to the meaning of “beneficial ownership” as set out in the Organization for Economic Cooperation and Development’s Model Tax Convention (as amended from time to time), is required to be treated for tax purposes as the beneficial owner of any interest payable under any Finance Document.

 

“ Relevant Tax Jurisdiction ” means, in relation to any Obligor, the jurisdiction where it is resident, or deemed to be resident for Tax purposes.

 

“ Renewal Request ” means a written notice delivered to the Agent in accordance with Clause 6.8 ( Renewal of a Letter of Credit ).

 

“ Repeating Representations ” means the representations in Clauses 25.2 ( Status ) to 25.7 ( Governing Law and enforcement ) (inclusive), Clause 25.10 ( No Default ), Clause 25.11 ( No Misleading information ), Clause 25.13 ( No proceedings pending or threatened ), Clause 25.16 ( US Government Regulations ), Clause 25.17 ( ERISA ), Clause 25.20 ( US Anti-Terrorism Laws ), Clause 25.21 ( US Margin Regulations ), Clause 25.22 ( Sanctions, Anti-Corruption and other laws ), and Clause 25.23 ( Gaming ).

 

“ Replacement Lender ” has the meaning given to it in Clause 42.3(c) ( Replacement of Lender );

 

“ Representative ” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

“ Rescission Payments ” mean any payments which GTECH is required to make to its shareholders in connection with the exercise of the right of rescission ( recesso ) by its shareholders in the context of the Holdco Merger.

 

“ Resignation Letter ” means a letter substantially in the form set out in Schedule 7 ( Form of Resignation Letter ).

 

“ Restricted Payment ” means a Distribution, a Share Buy Back or a Shareholder Payment.

 

“ Retiring Guarantor ” has the meaning given to it in Clause 24.9 ( Release of Guarantors’ right of contribution ).

 

“ Revolving Facility ” means Revolving Facility A or Revolving Facility B.

 

39

 

“ Revolving Facility A ” means the revolving credit facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 ( The Facilities ).

 

“ Revolving Facility B ” means the revolving credit facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 ( The Facilities ).

 

“ Revolving Facility A Commitment ” means:

 

(a)                                  in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Revolving Facility A Commitment” in Part II ( The Original Lenders ) of Schedule 1 ( The Original Parties ) and the amount of any other Revolving Facility A Commitment transferred to it under this Agreement; and

 

(b)                                  in relation to any other Lender, the amount in the Base Currency of any Revolving Facility A Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

“ Revolving Facility A Loan ” means a loan made or to be made under Revolving Facility A or the principal amount outstanding for the time being of that loan.

 

“ Revolving Facility B Commitment ” means:

 

(a)                                  in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Revolving Facility B Commitment” in Part IIA or Part IIB ( The Original Lenders ) of Schedule 1 ( The Original Parties ) and the amount of any Revolving Facility B Commitment transferred to it under this Agreement; and

 

(b)                                  in relation to any other Lender, the amount in the Base Currency of any Revolving Facility B Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

“ Revolving Facility B Loan ” means a loan made or to be made under Revolving Facility B or the principal amount outstanding for the time being of that loan.

 

“ Revolving Facility Commitment ” means a Revolving Facility A Commitment or a Revolving Facility B Commitment;

 

“ Revolving Facility Loan ” means a Revolving Facility A Loan or a Revolving Facility B Loan.

 

“ Rollover Loan ” means one or more Loans:

 

(a)                                  made or to be made on the same day that:

 

(i)                                      a maturing Loan is due to be repaid; or

 

(ii)                                   a demand by the Agent pursuant to a drawing in respect of a Letter of Credit is due to be met;

 

(b)                                  the aggregate amount of which is equal to or less than the maturing Loan or the relevant claim in respect of that Letter of Credit;

 

40

 

(c)                                   in the same currency as the maturing Loan (unless Clause 10.2 ( Unavailability of a currency ) applies) or the relevant claim in respect of that Letter of Credit; and

 

(d)                                  made or to be made to the same Borrower for the purpose of:

 

(i)                                      refinancing that maturing Loan; or

 

(ii)                                   satisfying the obligations of the relevant Borrower to pay the amount of a claim under the Letter of Credit to the Agent for the Issuing Agent (as agent for each of the Lenders).

 

“ S&P ” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc.

 

“ Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by a Sanctions Authority.

 

“ Sanctions Authority ” means (i) the US government; (ii) the European Union; (iii) the United Kingdom; (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation, OFAC, the US Department of State and Her Majesty’s Treasury; or (vi) the United Nations Security Council.

 

“ Sanctioned Country ” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, North Sudan, South Sudan and Syria).

 

“Sanctioned Person ” means, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by a Sanctions Authority, (b) any person operating, organized or resident in a Sanctioned Country or (c) any person owned or controlled by any such person or persons.

 

“ Screen Rate ” means:

 

(a)                                  in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate); and

 

(b)                                  in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate),

 

or in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters.  If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Parent.

 

“ Security ” means a mortgage, charge, lien, encumbrance, pledge or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

41

 

“ Self-Declaration Form ” means the self-declaration form substantially in the form set out in Schedule 16 ( Self Declaration Form ) of this Agreement.

 

“ Security Documents ” has the meaning given to that term in Clause 28.23 ( Security following Date Ratings Decrease ).

 

“ Separate Loan ” has the meaning given to that term in Clause 9 ( Repayment ).

 

“ Share Buy Back ” means the redemption, repurchase, defeasement, retirement or repayment of any of the Parent’s share capital (including under any transaction pursuant to which shares issued to a third party are taken back into treasury) or the resolving to do so.

 

“ Shareholder Payment ” means the payment of any management, advisory or other fee to or to the order of any of the shareholders of the Parent.

 

“ Single Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that:

 

(a)                                  is maintained for employees of any Obligor or any ERISA Affiliate and no person other than the Obligors and the ERISA Affiliates; or

 

(b)                                  was so maintained and in respect of which any Obligor or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Special Notice Currency ” means, at any time, an Optional Currency other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.

 

“ Specified Lender ” means any Lender that notifies the relevant Borrower and the Agent that it is a Specified Lender.

 

“ Specified Time ” means a time determined in accordance with Schedule 9 ( Timetables — Loans — Notices to the Agent ).

 

“ Structure Memorandum ” means the “Project Cleopatra Structure Memorandum”, together with the annexes, dated 31 October 2014, as may be updated from time to time to reflect the implementation of the Transactions subject to the provisions of Clause 28.26 ( Structure Memorandum ).

 

“ Subrogation Rights ” has the meaning given to it in paragraph (a)(ii) of Clause 24.8 ( Deferral of Guarantor’s rights ).

 

“ Subsidiary ” means, in relation to any company, corporation or other legal entity (a “ holding company ”), a company, corporation or other legal entity:

 

(a)                                  which is controlled, directly or indirectly, by the holding company;

 

(b)                                  more than half the issued share capital of which is beneficially owned directly or indirectly by the holding company;

 

(c)                                   which is a subsidiary of another Subsidiary of the holding company; or

 

42

 

(d)                                  whose financial statements are in accordance with applicable law and generally accepted accounting principles applicable to the Parent consolidated with those of that company or corporation.

 

For the purposes of this definition, a company or corporation shall be treated as being controlled by another entity if the latter (whether by way of ownership of shares, proxy, contract, agency or otherwise) has the power to (a) appoint or remove all, or the majority, of its directors or other equivalent officers or (b) direct its operating and financial policies.

 

“ Super Majority Lenders ” means a Lender or Lenders whose Revolving Facility Commitments aggregate more than eighty five per cent. (85%) of the Total Facility Commitments (or, if the Total Facility Commitments have been reduced to zero, aggregated more than eighty five per cent. (85%) of the Total Facility Commitments immediately prior to that reduction).

 

“ Swap Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

“ Swingline Agent’s Fee Letter ” means the fee letter dated on or about the date of this Agreement between the Swingline Agent and the Borrowers.

 

“ Target ” means International Game Technology, a corporation organised under the laws of Nevada.

 

“ Target Accession Date ” means such date on which, following the completion of the Mergers, Target accedes to this Agreement as an Additional Borrower pursuant to Clause 31.2 ( Additional Obligors ).

 

“ Target Merger ” means the series of transactions which consist principally of the merger of Target Merger Sub with and into Target, in accordance with the steps set out in the Structure Memorandum.

 

“ Target Merger Sub ” means Georgia Worldwide Corporation, a corporation organized under the laws of Nevada and a wholly owned Subsidiary of Holdco.

 

“ TARGET2 ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

 

“ TARGET Day ” means any day on which TARGET2 is open for the settlement of payment in Euro.

 

“ Tax ” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

“ Tax Credit ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Tax Deduction ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ Tax Payment ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

43

 

“ Term ” means each period determined under this Agreement for which the Issuing Agent (as agent for each of the Lenders) or any Lender is under a liability under a Letter of Credit.

 

“ Terminated Lender ” has the meaning given to it in paragraph (d) of Clause 12.6 ( Right of cancellation and repayment in relation to a single Lender or the Issuing Agent ) .

 

“ Third Parties Act ” has the meaning given to it in Clause 1.3 ( Third Party Rights ).

 

“ Third Party Disposal ” means the disposal of an Obligor to a person which is not a member of the Group (and the Borrowers have confirmed this is the case) where that disposal is permitted under Clause 28.8 ( Disposals ) or made with the approval of the Majority Lenders.

 

“ Total Facility Commitments ” means the aggregate of the Revolving Facility Commitments, being US$1,800,000,000 and €1,050,000,000 at the date of this Agreement.

 

“ Total Net Debt ” has the meaning given to it in Clause 27.1 ( Financial definitions ).

 

“ Total Net Interest Costs ” has the meaning given to it in Clause 27.1 ( Financial definitions ).

 

“ Total US Dollar Swingline Commitments ” means the aggregate of the US Dollar Swingline Commitments, being US$100,000,000 at the date of this Agreement.

 

“ Transactions ” means the Italian Reorganisation and the Mergers.

 

“ Transfer Certificate ” means a certificate substantially in the form set out in Schedule 4 ( Form of Transfer Certificate ) or any other form agreed between the Agent and the Borrowers.

 

“ Transfer Date ” means, in relation to any assignment or transfer, the later of:

 

(a)                                  the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)                                  the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

“ Treasury Transaction ” means any derivative transaction entered into in connection with protection against or benefit from fluctuations in any rate or price including, for the avoidance of doubt, foreign exchange transactions; provided, however, that, with respect to any Guarantor, all obligations under Hedging Documents guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.

 

“ Treaty Lender ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ UK Borrower ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ UK Non-Bank Lender ” has the meaning ascribed thereto in Clause 19.1 (Definitions).

 

“ UK Treaty Lender ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ UK Treaty State ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ United States Person ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

44

 

“ Unpaid Sum ” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

“ US ” and “ United States ” means the United States of America, its territories and possessions.

 

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United States.

 

“ US Bankruptcy Law ” means the United States Bankruptcy Code (Title 11 of the United States Code), any other United States federal or state bankruptcy, insolvency or similar law.

 

“ US Borrower ” has the meaning ascribed thereto in Clause 19.1 ( Definitions ).

 

“ US Dollars ” or “ US$ ” means the lawful currency for the time being of the United States of America.

 

“ US Dollar Swingline Commitment ” means:

 

(a)                                  in relation to an Original US Dollar Swingline Lender, the amount in US Dollars set opposite its name under the heading “US Dollar Swingline Commitment” in Part IIB of Schedule 1 ( The Original Parties ) and the amount of any other US Dollar Swingline Commitment transferred to it under this Agreement; and

 

(b)                                  in relation to any other US Dollar Swingline Lender, the amount of any US Dollar Swingline Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

“ US Dollar Swingline Facility ” means the US Dollar swingline loan facility made available under this Agreement as described in Clause 11 ( US Dollar Swingline Facility ).

 

“ US Dollar Swingline Lender ” means:

 

(a)                                  an Original US Dollar Swingline Lender; or

 

(b)                                  any other person that becomes a US Dollar Swingline Lender after the date of this Agreement in accordance with Clause 30 ( Changes to the Lenders ),

 

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

 

“ US Dollar Swingline Loan ” means a loan made or to be made under the US Dollar Swingline Facility or the principal amount outstanding for the time being of that loan.

 

“ US Guarantor ” means a Guarantor that is organized, incorporated or formed under the laws of the United States or any State thereof (including the District of Columbia).

 

“ US Obligor ” means a US Borrower or a US Guarantor.

 

45

 

“ US Solvent ” means, with respect to any person on a particular date, that on such date:

 

(a)                                  the fair value of the property of such person and its Subsidiaries on a consolidated basis is greater than the total amount of liabilities, including contingent liabilities, of such person and its Subsidiaries on a consolidated basis;

 

(b)                                  the present fair saleable value of the assets of such person and its Subsidiaries on a consolidated basis is not less than the amount that will be required to pay the liability of such person and its Subsidiaries on a consolidated basis on their debts as they become absolute and matured;

 

(c)                                   such person and its Subsidiaries on a consolidated basis do not intend to, and do not believe that they will, incur debts or liabilities beyond the ability of such person and its Subsidiaries on a consolidated basis to pay such debts and liabilities as they mature; and

 

(d)                                  such person and its Subsidiaries on a consolidated basis are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the property of such person and its Subsidiaries on a consolidated basis would constitute an unreasonably small capital.

 

The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

For purposes of the foregoing, (i) “debt” means liability on a “claim” and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

 

“ US Tax Obligor ” means:

 

(a)                                  a Borrower which is resident for tax purposes in the US; or

 

(b)                                  an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

“ Utilisation ” means a Loan or a Letter of Credit (including a renewal of a Letter of Credit).

 

“ Utilisation Date ” means the date on which a Utilisation is made.

 

“ Utilisation Request ” means a notice substantially in the relevant form set out in Parts IA, IB or IC of Schedule 3 ( Requests ).

 

“ VAT ” means:

 

(a)                                  any tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) (including, in relation to the United Kingdom, value added tax imposed by the Value Added Tax Act 1994 and supplemental legislation and regulations and, in relation to Italy, value add tax imposed

 

46

 

by Presidential Decree No. 633 of 26 October 1972 and Legislative Decree No. 331 of 30 August 1993 and supplemental legislation and regulations); and

 

(b)                                  any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or elsewhere.

 

“ Website Lenders ” has the meaning given to it in Clause 37.7 ( Use of websites ).

 

“ Withdrawal Liability ” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

 

1.2                                Construction

 

(a)                                 Unless a contrary indication appears, a reference in this Agreement to:

 

(i)                                      the “ Agent ”, any “ Arranging Party ”, any “ Borrower ”, any “ Finance Party ”, any “ Guarantor ”, and “ Hedging Bank ”, the “ Issuing Agent ”, any “ Lender ”, any “ Obligor ”, any “ Party ”, any “ Swingline Agent ” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

(ii)                                   a document in “ agreed form ” is a document which is on terms previously agreed in writing by or on behalf of the relevant Obligors and the Agent or, if not so agreed, is in the form agreed by or on behalf of the relevant Obligors and the Agent;

 

(iii)                                “ assets ” includes present and future properties, revenues and rights of every description (including, without limitation shares and receivables);

 

(iv)                               a “ Finance Document ” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(v)                                  “ guarantee ” means (other than in Clause 24 ( Guarantee and Indemnity )) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

(vi)                               the words “ including ” and “ in particular ” shall be construed as illustrative and not as limiting the generality of any preceding words;

 

(vii)                            “ indebtedness ” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(viii)                         an “ Interest Period ” includes each period determined under this Agreement by reference to which interest on a US Dollar Swingline Loan is calculated;

 

(ix)                               a “ Lender ” includes a US Dollar Swingline Lender unless the context otherwise requires;

 

47

 

(x)                                  a “ person ” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

 

(xi)                               “ prepay ” shall have the meaning given to it in Clause 6.1 ( General );

 

(xii)                            a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation as well as guidelines or rules of conduct adopted by any member of the Group under applicable laws (including but not limited to “ Modelli di organizzazione e gestione ” and the “ Codici Etici ” provided for under Legislative Decree no. 231 dated June 8, 2001 of Italy);

 

(xiii)                         “ repay ” shall have the meaning given to it in Clause 6.1 ( General );

 

(xiv)                        a Borrower providing “ cash cover ” for a Letter of Credit means that Borrower paying an amount in the currency of the Letter of Credit to an interest-bearing account located in London or New York in the name of the relevant Borrower over which security has been granted for the benefit of the relevant Issuing Agent and the following conditions are met:

 

(A)                                the account is with the Agent or an Affiliate (if the cash cover is to be provided for all the Lenders) or the Issuing Agent or an Affiliate; and

 

(B)                                subject to paragraph (b) of Clause 8.6 ( Cash Cover by Borrower ) withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Letter of Credit until no amount is or may be outstanding under that Letter of Credit; and

 

(C)                                the relevant Borrower has executed a security document, in form and substance satisfactory to the Agent or the Finance Party with which the account is held, creating a first ranking security interest over that account; and

 

unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at any such time, provided however , that with respect to any Letter of Credit that, by its terms, or the terms of any issuer document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time;

 

(xv)                           the furtherance of any transaction that is not restricted under the terms of this Agreement shall , for the avoidance of doubt, be considered to fall within the general corporate purposes of the Group;

 

(xvi)                        a provision of law or regulation or an accounting standard is a reference to that provision or accounting standard as amended, replaced or re-enacted from time to time under applicable law or regulation;

 

48

 

(xvii)                     any reference to any consent to be given by any Finance Party shall be deemed to be given only to the extent the same is given in writing; and

 

(xviii)                  a time of day is a reference to London time unless otherwise stated.

 

(b)                                 Section, Clause and Schedule headings are for ease of reference only.

 

(c)                                  Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(d)                                 A Default or an Event of Default is “ continuing ” if it has not been remedied or waived.

 

1.3                                Third party rights

 

(a)                                 Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “ Third Parties Act ”) to enforce or enjoy the benefit of any term of this Agreement.

 

(b)                                 Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

2.                                       THE FACILITIES

 

2.1                                The Facilities

 

(a)                                 Subject to the terms of this Agreement, the Lenders make available:

 

(i)                                      to GTECH Corporation and, (A) within ten (10) Business Days following completion of the Holdco Merger, and upon accession in accordance with Clause 31.2 ( Additional Obligors ), Holdco, and (B) within ten (10) Business Days following completion of the Target Merger and upon accession in accordance with Clause 31.2 ( Additional Obligors ), Target, a multicurrency revolving credit facility in an aggregate amount equal to the Revolving Facility A Commitments, being US$1,800,000,000 at the date of this Agreement; and

 

(ii)                                   to GTECH and, (A) within ten (10) Business Days following completion of the Italian Reorganisation and upon accession in accordance with Clause 31.2 ( Additional Obligors ), Italian Holdco, and (B) within ten (10) Business Days following completion of the Holdco Merger, and upon accession in accordance with Clause 31.2 ( Additional Obligors ), Holdco, a multicurrency revolving credit facility in an aggregate amount equal to the Revolving Facility B Commitments, being €1,050,000,000 at the date of this Agreement.

 

2.2                                Finance Parties’ rights and obligations

 

(a)                                 The obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

49

 

(b)                                 The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

(c)                                  A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

2.3                                Obligors’ Agent

 

(a)                                 Each Obligor (other than the Parent) by its execution of this Agreement or an Accession Letter irrevocably appoints the Parent to act on its behalf as the Obligors’ Agent in relation to the Finance Documents and irrevocably authorises:

 

(i)                                      the Obligors’ Agent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions, to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

 

(ii)                                   each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Obligors’ Agent,

 

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

(b)                                 Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it.  In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

 

2.4                                Lender Affiliates and Facility Office

 

(a)                                 In respect of a Utilisation or Utilisations to a particular Borrower (“ Designated Loans ”) a Lender (a “ Designating Lender ”) may at any time and from time to time designate (by written notice to the Agent and the Parent):

 

50

 

(i)                                      a substitute Facility Office from which it will make Designated Loans (a “ Substitute Facility Office ”); or

 

(ii)                                   nominate an Affiliate to act as the Lender of Designated Loans (a “ Substitute Affiliate Lender ”).

 

(b)                                 A notice to nominate a Substitute Affiliate Lender must be delivered in the form set out in Schedule 15 ( Form of Substitute Affiliate Lender Designation Notice ) and be countersigned by the relevant Substitute Affiliate Lender confirming that it will be bound as a Lender under this Agreement in respect of the Designated Loans in respect of which it acts as Lender.

 

(c)                                  The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender.  In particular the Revolving Facility Commitments of the Designating Lender will not be treated as reduced by the designation of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents.

 

(d)                                 Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents and having a Commitment equal to the principal amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement.

 

(e)                                  A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Parent; provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender.  Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender.

 

(f)                                   If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause 2.4:

 

(i)                                      any Substitute Affiliate Lender shall be treated for the purposes of Clause 19.2(d)(i) ( Tax gross-up ) as having become a Lender on the date of this Agreement; and

 

(ii)                                   the provisions of Clause 30.2(e) ( Conditions of Assignment or Transfer ) shall not apply to or in respect of any Substitute Facility Office or Substitute Affiliate Lender.

 

3.                                       PURPOSE

 

3.1                                Purpose

 

Each Borrower shall apply all amounts borrowed by it under the Facilities towards the general corporate purposes of the Group including, without limitation, the refinancing of Existing Indebtedness.

 

51

 

3.2                                Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.                                       CONDITIONS OF UTILISATION

 

4.1                                Initial conditions precedent

 

(a)                                 Subject to paragraph (b) below, the Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 ( Conditions Precedent ) which documents, shall be in form and substance satisfactory to the Agent.  The Agent shall notify each Borrower, the Parent and the Lenders promptly upon being so satisfied.

 

(b)                                 Without prejudice to paragraph (a) above, Wells Fargo Bank, NA will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation the Target Accession Date has occurred.

 

(c)                                  For the avoidance of doubt, save for the purposes of Clause 42.2 ( Exceptions ) and for the definition of “Original Lenders”, Wells Fargo Bank, NA will only be deemed to be a Lender for the purposes of this Agreement after the Target Accession Date has occurred and shall not have any liability in respect of any Utilisations requested prior to the Target Accession Date or any claims under any indemnity or loss sharing provisions under this Agreement in each case in relation to any Utilisations requested or made prior to the Target Accession Date.

 

4.2                                Further conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ), if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(a)                                 in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan, and in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and

 

(b)                                 the Repeating Representations to be made by each Obligor are true in all material respects.

 

4.3                                Conditions relating to Optional Currencies

 

(a)                                 A currency will constitute an Optional Currency in relation to a Revolving Facility A Utilisation if it is in Euro, Pounds Sterling or another currency agreed to by all Lenders.

 

(b)                                 A currency will constitute an Optional Currency in relation to a Revolving Facility B Utilisation if it is in US$, Pounds Sterling or another currency agreed to by all Lenders.

 

(c)                                  A currency will constitute an Optional Currency in relation to a Letter of Credit Utilisation if with respect to a Letter of Credit issued under Facility A, it is in Euro or Pounds Sterling, or, with respect to a Letter of Credit issued under Facility B, it is in US Dollars or Pounds Sterling, or in either case it has been approved by the Issuing Agent

 

52

 

(acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.

 

(d)                                 If the Issuing Agent has received a written request from a Borrower for a currency to be approved under paragraph (c) above, the Agent will confirm to such Borrower by the Specified Time:

 

(i)                                      whether or not the Lenders have granted their approval; and

 

(ii)                                   if approval has been granted, the minimum amount for any subsequent Utilisation in that currency.

 

4.4                                Maximum number of Utilisations

 

(a)                                 A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation 26 or more Revolving Facility A Utilisations or 26 or more Revolving Facility B Utilisations would be outstanding.

 

(b)                                 Any Loan made by a single Lender under Clause 10.2 ( Unavailability of a currency ) shall not be taken into account in this Clause 4.4.

 

(c)                                  Any Separate Loan shall not be taken into account in this Clause 4.4.

 

4.5                                Conditions precedent to the signing date

 

Each Party acknowledges that it has received, on or prior to the signing date of this Agreement, notification from the Agent whereby the Agent confirms that it has received all of the documents and other evidence listed in Part III of Schedule 2 ( Conditions Precedent ) and that such documents and other evidence are in form and substance satisfactory to it.

 

5.                                       UTILISATION — REVOLVING FACILITY LOANS

 

5.1                                Delivery of a Utilisation Request

 

The Borrowers may utilise a Revolving Facility by delivery to the Agent of a duly completed Utilisation Request, in each case not later than at the times specified below.

 

5.2                                Completion of a Utilisation Request for Revolving Facility Loans

 

(a)                                 Each Utilisation Request for a Revolving Facility A Loan shall be made upon a Borrower’s notice to the Agent. Each such notice must be received by the Agent no later than 9:00 a.m. (New York time) three (3) Business Days prior to the requested date of any borrowing of Revolving Facility A Loans denominated in the Base Currency.

 

(b)                                 Each Utilisation Request for a Revolving Facility B Loan shall be made upon a Borrower’s notice to the Agent. Each such notice must be received by the Agent no later than 11:00 a.m. (London time) three (3) Business Days prior to the requested date of any borrowing of Revolving Facility B Loans denominated in the Base Currency.

 

(c)                                  Each Utilisation Request for a Revolving Facility Loan is irrevocable and will not be regarded as having been duly completed unless:

 

53

 

(i)                                      it identifies the Facility to be utilised;

 

(ii)                                   the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

 

(iii)                                the currency and amount of the Utilisation comply with Clause 5.3 ( Currency and amount );

 

(iv)                               the proposed Interest Period complies with Clause 16 ( Interest Periods ); and

 

(v)                                  only one Utilisation may be requested in a Utilisation Request.

 

5.3                                Currency and amount

 

(a)                                 The currency specified in a Utilisation Request must be in relation to the Facilities, the Base Currency or an Optional Currency.

 

(b)                                 The amount of the proposed Utilisation is:

 

(i)                                      with respect to Revolving Facility A, if the currency selected is the Base Currency, a minimum of US$5,000,000 or, if the currency selected is an Optional Currency, the applicable equivalent of US$5,000,000 in the relevant Optional Currency, or, in either case, if less, the Available Revolving Facility; or

 

(ii)                                   with respect to Revolving Facility B, if the currency selected is the Base Currency, a minimum of €5,000,000 or, if the currency selected is an Optional Currency, the applicable equivalent of €5,000,000 in the relevant Optional Currency, or, in either case, if less, the Available Revolving Facility.

 

5.4                                Lenders’ participation

 

(a)                                 If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Revolving Facility Loan available by the Utilisation Date through its Facility Office not later than:

 

(i)                                      1:00 p.m. (London time) on the Utilisation Date for Revolving Facility Loans denominated in the Base Currency or an Optional Currency other than Dollars; or

 

(ii)                                   1:00 p.m. (New York time) on the Utilisation Date for Revolving Facility Loans denominated in Dollars.

 

(b)                                 The amount of each Lender’s participation in each Revolving Facility Loan will be equal to the proportion borne by its Available Revolving Commitment to the Available Revolving Facility immediately prior to making the Revolving Facility Loan.

 

(c)                                  The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Revolving Facility Loan and the amount of its participation in that Loan by the Specified Time.

 

54

 

6.                                       UTILISATION — LETTERS OF CREDIT

 

6.1                                General

 

(a)                                 Any reference in this Agreement to:

 

(i)                                      the Interest Period of a Letter of Credit will be construed as a reference to the Term of that Letter of Credit;

 

(ii)                                   an amount borrowed includes any amount utilised by way of Letter of Credit;

 

(iii)                                a Utilisation made by or to be made to a Borrower includes a Letter of Credit issued (or renewed) on its behalf;

 

(iv)                               a Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit;

 

(v)                                  amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit;

 

(vi)                               an outstanding amount of a Letter of Credit means at any time, unless otherwise specified herein, the US Dollar amount for Revolving Facility A and Euro amount for Revolving Facility B (or the equivalent amount thereof in US Dollars or Euro as determined by the Agent or the Issuing Agent for Revolving Facility A and Revolving Facility B, respectively, as the case may be, at such time on the basis of the Agent’s Spot Rate of Exchange for the purchase of US Dollars or Euro for Revolving Facility A and Revolving Facility B, respectively with such Optional Currency) the greater of the maximum amount that is or may be payable by the relevant Borrower, the Issuing Agent or the relevant Lenders, as the case may be under or in connection with that Letter of Credit at that time; provided that for the purposes of this calculation with respect to any Letter of Credit that, by its terms or the terms of any documents related thereto, provides for one or more automatic increases in the stated amount thereof, the notional amount of such Letter of Credit itself shall be deemed to be such US Dollars or Euro equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time;

 

(vii)                            “ L/C Participation Amount ” means, in relation to a Lender in respect of any Letter of Credit, the commitment of that Lender to the beneficiary under that Letter of Credit as defined in the relevant Letter of Credit.

 

(viii)                         “ L/C Proportion ” means, in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Commitment to the Available Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by such Lender.

 

(ix)                               “ L/C Schedule ” means a schedule or appendix to a Letter of Credit detailing the Lenders’ L/C Participation Amounts and Participation Percentages under that Letter of Credit as may be adjusted from time to time in accordance with Clause 6.9 ( Adjusted Letter of Credit Schedule ).

 

55

 

(x)                                  “ Loss Share Date ” means, at any time after any amount has become payable to the beneficiary under a Letter of Credit, any date on which any amount due and owing to a Lender in respect of a claim under a Letter of Credit in relation to that payment has not been repaid or discharged.

 

(xi)                               “ Loss Share Proportion ” means, in respect of a Lender and a Loss Share Date, the aggregate of its L/C Participation Amounts under all outstanding Letters of Credit as a proportion of the aggregate of the L/C Participation Amounts of all Lenders under all outstanding Letters of Credit.

 

(xii)                            a Borrower “ repaying ” or “ prepaying ” a Letter of Credit means:

 

(A)                                that Borrower providing cash cover for that Letter of Credit;

 

(B)                                the maximum amount payable under the Letter of Credit being reduced in accordance with its terms; or

 

(C)                                the Issuing Agent being satisfied that neither it (acting as agent for each of the Lenders) nor any Lender has any further liability under that Letter of Credit,

 

and the amount by which a Letter of Credit is repaid or prepaid under sub-paragraphs (xii)(A) and (xii)(B)above is the amount of the relevant cash cover or reduction.

 

(b)                                 Clause 5 ( Utilisation — Loans ) does not apply to a Utilisation by way of Letter of Credit.

 

(c)                                  In determining the amount of the Available Revolving Facility and a Lender’s L/C Proportion with respect to either Revolving Facility of a proposed Letter of Credit for the purposes of this Agreement the Available Revolving Commitment of a Lender will be calculated ignoring any cash cover provided for outstanding Letters of Credit and adjusting to reflect any assignment or transfer under this Agreement to or by the relevant Lender.

 

6.2                                Guarantee Sub-limit

 

Each Revolving Facility may be utilised by way of Letters of Credit up to an aggregate maximum amount equal to the relevant Guarantee Sub-limit.

 

6.3                                Delivery of a Utilisation Request for Letters of Credit

 

A Borrower may request a Letter of Credit to be issued by delivery to the Agent of a duly completed Utilisation Request substantially in the form of Part IB of Schedule 3 ( Utilisation Request - Letters of Credit ) not later than the Specified Time.

 

6.4                                Completion of a Utilisation Request for Letters of Credit

 

Each Utilisation Request for a Letter of Credit under either Revolving Facility is irrevocable and will not be regarded as having been duly completed unless:

 

(a)                                 it specifies that it is for a Letter of Credit;

 

56