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Exhibit 4.4
GTECH HOLDINGS CORPORATION
GTECH CORPORATION
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
New York, New York
As of February 22, 1999
Re: Amendment No. 1 to Note and Guarantee Agreement
dated as of May 15, 1997
To the Noteholders
Referred to Below
Ladies and Gentlemen:
Reference is made to the Note and Guarantee Agreement dated as of May
15, 1997 (the "Agreement") between GTECH CORPORATION, a Delaware corporation
(the "Company"), GTECH HOLDINGS CORPORATION, a Delaware corporation (the
"Guarantor" and, together with the Company, the "Obligors"), and the Purchasers
identified in Schedule A thereto, pursuant to which said Purchasers purchased
$300,000,000 aggregate principal amount of the Company's 7.75% Series A
Guaranteed Senior Notes due 2004 and 7.87% Series B Guaranteed Senior Notes due
2007 (the "Notes").
The Obligors have requested that the holders of the Notes (the
"Noteholders") agree, and the Noteholders party hereto are willing, to amend
various provisions of the Agreement, all on the terms and conditions of this
Amendment.
Accordingly, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Unless otherwise defined herein, all terms used
herein which are defined in the Agreement (as amended hereby) shall have their
respective meanings as therein defined.
Section 2. Amendments to Agreement. Subject to the satisfaction of the
conditions to effectiveness specified in Section 4 below, the Agreement is
amended as follows:
2.1. Amendment to Section 10.6. Section 10.6 of the Agreement is
amended to read in its entirety as follows:
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"10.6. INDEBTEDNESS.
The Guarantor will not at any time permit the ratio
of Consolidated Indebtedness to Consolidated EBDAIT to exceed 3.0 to
1.".
2.2. Amendment to Section 10.7. Section 10.7 of the Agreement is
amended to read in its entirety as follows:
"10.7. FIXED CHARGES.
The Guarantor will not at any time permit the Fixed Charges
Coverage Ratio to be less than 2.0 to 1.".
2.3 Amendments to Section 11. (a) Subsection (c) of Section 11 of the
Agreement is amended to read in its entirety as follows:
"(c) the Guarantor defaults in the performance of or
compliance with any terms contained in Section 7.1(d) or Section 10.2,
10.4, 10.5, 10.6, 10.7 or 10.8; or".
(b) The second parenthetical phrase contained in Subsection
(d) of Section 11 of the Agreement is amended to read in its entirety as
follows:
"(provided, that, with respect to any default arising under Section
10.1, such Obligor is proceeding diligently and in good faith to remedy
such default)".
2.4. Amendments to Schedule B. (a) Schedule B to the Agreement
is amended by deleting the defined term "Consolidated Shareholders' Equity"
contained therein.
(b) Schedule B to the Agreement is further amended by adding the
following defined term thereto in the appropriate alphabetical location:
"CONSOLIDATED FIXED CHARGES" means, with reference to
any period, the sum of (a) Consolidated Interest Expense for such
period plus (b) Consolidated Lease Rentals for such period.
"CONSOLIDATED INCOME AVAILABLE FOR FIXED CHARGES"
means, with reference to any period, the sum (without duplication) of
(i) Consolidated Net Income for such period, plus (to the extent
deducted in the computation of such Consolidated Net Income) (ii)
Consolidated Interest Expense for such period, (iii) Consolidated Lease
Rentals for such period and (iv) taxes on income of the Guarantor and
its Restricted Subsidiaries for such period, provided, however, that
there shall be excluded from the computation of Consolidated Net Income
for this purpose the special charge taken by the Guarantor in the
fiscal quarter of the Guarantor ending in February 1999 (in an amount
not in excess of $15,000,000) relating to the Guarantor's decision not
to seek renewal of contracts in the benefits distribution business of
Transactive Corporation.
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"CONSOLIDATED LEASE RENTALS" means, with reference to
any period, the sum of the rental and other obligations required to be
paid during such period by the Guarantor or any Restricted Subsidiary
as lessee under all leases of real or personal property (other than
Capital Leases), excluding any amounts required to be paid by the
lessee which are on the account of maintenance and repairs, insurance,
taxes, assessments and similar charges.
"FIXED CHARGES COVERAGE RATIO" means, as of any date
of determination, the ratio of (a) Consolidated Income Available For
Fixed Charges for the four fiscal quarters ending on, or most recently
prior to, such date to (b) Consolidated Fixed Charges for such four
fiscal quarters, all determined on a pro forma basis in accordance with
generally accepted financial practice giving effect to any acquisition
or disposition made during the relevant computation period as if such
acquisition or disposition were made on the first day of such period.
Section 3. Representations and Warranties. The Obligors
represent and warrant, jointly and severally, to the Noteholders on the date
hereof and as of the Effective Date as follows (and the parties hereto agree
that the following representations and warranties shall be deemed to have been
made pursuant to the Agreement for all relevant purposes thereof):
3.1. Power and Authority. Each Obligor has the corporate power
and authority to execute and deliver this Amendment and to perform the Agreement
as amended hereby (the "Amended Agreement").
3.2. Authorization, etc. This Amendment has been duly
authorized by all necessary corporate action on the part of each Obligor and has
been duly executed and delivered by each of the Obligors, and the Amended
Agreement constitutes a legal, valid and binding obligation of each Obligor,
enforceable against such Obligor in accordance with its terms except as such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3.3. No Conflicts. The execution and delivery by the Obligors
of this Amendment and the performance by the Obligors of this Amendment and of
the Amended Agreement will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of either Obligor or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which either Obligor or any
Subsidiary is bound or by which either Obligor or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to either Obligor or any Subsidiary or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to
either Obligor or any Subsidiary.
3.4. Governmental Authorizations. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection
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with the execution and delivery of this Amendment or for the performance by the
Obligors of the Amended Agreement.
3.5. No Defaults. Both immediately prior and after giving
effect to this Amendment, no Default or Event of Default shall have occurred and
be continuing.
Section 4. Conditions to Effectiveness. This Amendment shall
become effective as of the date (the "Effective Date") when the following
conditions shall have been satisfied:
4.1. Execution and Delivery. This Amendment shall have been
duly executed and delivered by each Obligor and the Required Holders.
4.2. Acknowledgements by Subsidiary Guarantors. Each
Subsidiary Guarantor shall have acknowledged and consented to the execution and
delivery of this Amendment.
4.3 Rating Confirmation. Duff & Xxxxxx Credit Rating Co.
shall have confirmed in writing its rating of each series of Notes of at least
BBB+.
Section 5. Miscellaneous.
5.1. Fees. Without limiting the provisions of Section 16.1 of
the Agreement, the Company agrees to pay the reasonable fees and expenses of
special counsel to the Noteholders, Milbank, Tweed, Xxxxxx & XxXxxx LLP,
relating to the transactions contemplated hereby.
5.2. Ratification; Waiver. The Agreement, except as amended
pursuant hereto, is in all respects ratified and confirmed, and the terms,
covenants and agreements thereof shall remain in full force and effect.
5.3. References to Agreement and Notes. From and after the
Effective Date, all references to the Agreement in the Agreement, the Notes and
the Subsidiary Guarantees shall be deemed to be references to the Agreement as
amended by this Amendment.
5.4. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York.
5.5. Execution in Counterparts. This Amendment may be executed
in counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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If you are in agreement with the foregoing, please sign the
form of acceptance in the space provided below whereupon this Amendment shall
become a binding agreement between you, the Company and the Guarantor.
Very truly yours,
GTECH CORPORATION
By:_____________________________
Title:
GTECH HOLDINGS CORPORATION
By:_____________________________
Title:
The foregoing is hereby agreed to as of the date hereof:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:_____________________________
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:_____________________________
Title:
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ALLSTATE LIFE INSURANCE COMPANY
By:_____________________________
Title:
By:_____________________________
Title:
Authorized Signatories
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
AMERICAN GENERAL LIFE
INSURANCE COMPANY
By:_____________________________
Title:
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
By:_____________________________
Title:
THE GUARDIAN INSURANCE AND
ANNUITY COMPANY, INC.
By:_____________________________
Title:
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XXXX XXXXXXXX LIFE INSURANCE
COMPANY
By:_____________________________
Title:
HARTFORD LIFE INSURANCE COMPANY
By:_____________________________
Title:
HARTFORD FIRE INSURANCE COMPANY
By:_____________________________
Title:
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY
By:_____________________________
Title:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By:_____________________________
Title:
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FIRST PENN-PACIFIC LIFE
INSURANCE COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By:_____________________________
Title:
LINCOLN NATIONAL REASSURANCE
COMPANY
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By:_____________________________
Title:
LINCOLN NATIONAL REINSURANCE
COMPANY (BARBADOS) LTD.
By: Lincoln Investment
Management, Inc., its
Attorney-In-Fact
By:_____________________________
Title:
PACIFIC LIFE INSURANCE
COMPANY
By:_____________________________
Title:
By:_____________________________
Title:
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LIFE INVESTORS INSURANCE COMPANY
OF AMERICA
By:_____________________________
Title:
MONUMENTAL LIFE INSURANCE COMPANY
By:_____________________________
Title:
PFL LIFE INSURANCE COMPANY
By:_____________________________
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:_____________________________
Title:
THE EQUITABLE OF COLORADO, INC.
By:_____________________________
Title:
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RELIASTAR BANKERS SECURITY
LIFE INSURANCE COMPANY
By:_____________________________
Title:
RELIASTAR LIFE INSURANCE COMPANY
By:_____________________________
Title:
RELIASTAR UNITED SERVICES
LIFE INSURANCE COMPANY
By:_____________________________
Title:
NORTHERN LIFE INSURANCE COMPANY
By:_____________________________
Title:
WASHINGTON SQUARE ADVISORS
PRIVATE PLACEMENT TRUST FUND
By:_____________________________
Its: Investment Advisor and
Authorized Signatory
KEYPORT LIFE INSURANCE COMPANY
By Xxxxx Xxx & Farnham
Incorporated, as Agent
By:_____________________________
Title:
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CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By CIGNA Investments, Inc.
By:_____________________________
Name:
Title:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on
behalf of one or more
separate accounts
By CIGNA Investments, Inc.
By:_____________________________
Name:
Title:
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By CIGNA Investments, Inc.
By:_____________________________
Name:
Title:
PRINCIPAL LIFE
INSURANCE COMPANY
By:_____________________________
Title:
By:_____________________________
Title:
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CONSECO ANNUITY ASSURANCE COMPANY
"Conseco Capital Management, Inc.
acting as Investment Advisor"
By:_____________________________
Title:
The foregoing is hereby acknowledged and
consented to as of the date hereof:
TRANSACTIVE CORPORATION
By:_____________________________
Title:
GTECH RHODE ISLAND CORPORATION
By:_____________________________
Title:
