Loan Agreement (Amendment No. 3) - Diebold Inc. and Bank One, Michigan
THIRD AMENDMENT TO LOAN AGREEMENT
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THIS THIRD AMENDMENT TO LOAN AGREEMENT, dated as of March 30,
2001 (this "Amendment"), is among DIEBOLD, INCORPORATED, an Ohio corporation
(the "COMPANY"), the SUBSIDIARY BORROWERS (as defined in the Loan Agreement
referred to below) (together with the Company, the "BORROWERS"), the lenders set
forth on the signature pages hereof (the "LENDERS"), and BANK ONE, MICHIGAN, a
Michigan banking corporation, as agent for the Lenders (in such capacity, the
"AGENT").
RECITALS
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A. The Borrowers, the Lenders party thereto and the Agent are
parties to a Loan Agreement dated December 1, 1999, as amended (the "LOAN
AGREEMENT").
B. The Borrowers desire to amend the Loan Agreement as set
forth herein, and the Agent and the Lenders are willing to do so in accordance
with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements
herein contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set
forth in Article III hereof, the Loan Agreement and the other Loan Documents
shall be amended as follows:
1.1 Section 1.1 is amended as follows:
(a) The following definitions are added to Section 1.1 in
appropriate alphabetical order:
"SECURITIZATION ENTITY" means a wholly-owned Subsidiary of the
Company that engages in no activities other than Permitted
Securitization Transactions and any necessary related activities and
owns no assets other than as required for Permitted Securitization
Transactions and (i) no portion of the Indebtedness (contingent or
otherwise) of which is guaranteed by the Company or any Subsidiary of
the Company or is recourse to or obligates the Company or any
Subsidiary of the Company in any way, other than pursuant to customary
representations, warranties, covenants, indemnities and other
obligations entered into in connection with a Permitted Securitization
Transaction, and (ii) to which neither the Company nor any Subsidiary
of the Company has any material obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve certain
levels of operating results.
"PERMITTED SECURITIZATION TRANSACTION" is defined in Section
6.10(iii).
(b) The definition of Off Balance Sheet Liabilities is amended by
adding the following to the end thereof: ", and including without limitation the
outstanding amount sold or financed under any Permitted Securitization
Transaction."
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1.2 Section 2.18 is amended by adding the following to the end
thereof: "Notwithstanding anything herein to the contrary, Securitization
Entities shall not be required to be Guarantors."
1.3 Clause (iii) of Section 6.10 is re-designated as clause (iv),
and the following new clause (iii) is inserted immediately prior thereto:
(iii) Any sale or other transfer of an interest in leases or
lease receivables on a limited recourse basis, reasonably
acceptable to the Agent, provided that (a) such transfer
qualifies as a sale under Agreement Accounting Principles, and
(b) the aggregate amount of such financings does not exceed
$100,000,000 at any one time outstanding (any such sale or
other transfer, a "Permitted Securitization Transaction").
1.4 Section 6.11(iii) is restated as follows: "(iii) (a)
Investments in existence on December 31, 2000 and (b) Investments in a
Securitization Entity in connection with Permitted Securitization Transactions
and in an aggregate outstanding amount not to exceed 10% of the aggregate amount
of all Permitted Securitization Transactions plus the leases and lease
receivables permitted to be transferred to a Securitization Entity in connection
with Permitted Securitization Transactions."
1.5 Section 6.12 is amended by adding the following new clause
(viii) to the end thereof: "(vii) Liens incurred in connection with any transfer
of an interest in leases or lease receivables which is permitted pursuant to
Section 6.10(iii) and which Liens are required to consummate such Permitted
Securitization Transaction."
1.6 Clause (vi) of Section 6.15 is re-designated as clause (vii),
and the following new clause (vi) is inserted immediately prior thereto:
(vi) Indebtedness of a Securitization Entity required in
connection with Permitted Securitization Transactions.
1.7 Section 6.16 is amended by adding the following to the end
thereof: "and (e) such restrictions with respect to a Securitization Entity
required in connection with Permitted Securitization Transactions."
ARTICLE II. REPRESENTATIONS. Each of the Borrowers represents and
warrants to the Agent and the Lenders that:
2.1 The execution, delivery and performance of this Amendment are
within its powers, have been duly authorized by existing board resolutions or
other necessary corporate action and are not in contravention of any statute,
law or regulation or of any terms of its Articles of Incorporation, Certificate
of Incorporation or By-laws, or of any material agreement or undertaking to
which it is a party or by which it is bound.
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2.2 This Amendment is the legal, valid and binding obligation of
it, enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
2.3 After giving effect to the amendments contained herein, the
representations and warranties contained in Article V of the Loan Agreement are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof, except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall be true and correct on and as of such earlier
date.
2.4 After giving effect to the amendments contained herein, no
Default or Unmatured Default exists or has occurred and is continuing on the
date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date hereof when each of the following conditions is
satisfied:
3.1 The Borrowers, the Required Lenders, the Swing Lender and the
Agent shall have signed this Amendment.
3.2 The Guarantors shall have signed the consent and agreement to
this Amendment.
3.3 The Borrowers shall have paid such amendment fees to the Agent
for the benefit of the Lenders in such amounts as separately agreed upon.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Loan Agreement or in any other Loan Document
to the Loan Agreement shall be deemed to be references to the Loan Agreement as
amended hereby and as further amended from time to time.
4.2 Except as expressly amended hereby, each of the Borrowers
agrees that the Loan Agreement and the other Loan Documents are ratified and
confirmed, as amended hereby, and shall remain in full force and effect in
accordance with their terms and that they are not aware of any set off,
counterclaim, defense or other claim or dispute with respect to any of the
foregoing. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement. This Amendment may be signed upon any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument, and telecopied signatures shall be
effective as originals.
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
DIEBOLD, INCORPORATED
By: /s/Gregory T. Geswein
---------------------------------------------
Title: Senior Vice President & CFO
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DIEBOLD INTERNATIONAL LIMITED
By: /s/Timothy J. McDannold
---------------------------------------------
Title: Designated Financial Officer
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DIEBOLD SELF-SERVICE SOLUTIONS S.a.r.l.,
GRANGES-PACCOT
By: /s/Timothy J. McDannold
---------------------------------------------
Title: Designated Financial Officer
-----------------------------------------
DIEBOLD AUSTRALIA PTY LTD
By: /s/Timothy J. McDannold
---------------------------------------------
Title: Designated Financial Officer
-----------------------------------------
BANK ONE, MICHIGAN, as Agent, Swing Lender,
Issuer and Lender
By: /s/Krista J. Flynn
----------------------------------------------
Title: Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/Marianne T. Meil
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Title: Vice President
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NATIONAL CITY BANK
By: /s/William R. McDonnell
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Title: Vice President
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ABN AMRO BANK N.V.
By: /s/Mary L. Honda
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Title: Group Vice President
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By: /s/Laurie D. Flom
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Title: Senior Vice President
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BANK OF AMERICA, N.A.
By: /s/Raju N. Patel
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Title: Principal
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THE CHASE MANHATTAN BANK
By: /s/Henry W. Centa
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Title: Vice President
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THE BANK OF NEW YORK
By: /s/Kenneth R. McDonnell
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Title: Assistant Vice President
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FIRSTAR BANK
By: /s/David Dannemiller
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Title: Vice President
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HSBC BANK USA
By: /s/Christopher M. Samms
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Title: First Vice President
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BANK OF IRELAND
By: /s/Jackie Ovann
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Title: Assistant Account Executive
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CONSENT AND AGREEMENT
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As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above
Amendment and the consummation of the transactions contemplated thereby;
(b) agrees that the Guaranty to which it is a party and each other
Loan Document to which it is a party are hereby ratified and confirmed and shall
remain in full force and effect, acknowledges and agrees that it has no setoff,
counterclaim, defense or other claim or dispute with respect the Guaranty to
which it is a party and each other Loan Document to which it is a party; and
(c) represents and warrants to the Agent and the Lenders that the
execution, delivery and performance of this Consent and Agreement are within its
powers, have been duly authorized and are not in contravention of any statute,
law or regulation or of any terms of its organizational documents or of any
material agreement or undertaking to which it is a party or by which it is
bound, and this Consent and Agreement is the legal, valid and binding
obligations of it, enforceable against it in accordance with the terms hereof
and thereof. Terms used but not defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement.
DIEBOLD INVESTMENT COMPANY
By: /s/Margaret Pulgini
-------------------------------------------------
Title: Vice President/Treasurer
DIEBOLD FINANCE COMPANY, INC.
By: /s/Margaret Pulgini
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Title: Vice President/Treasurer
DIEBOLD CREDIT CORPORATION
By: /s/Charee Francis-Vogelsang
-------------------------------------------------
Title: Vice President and Secretary
DIEBOLD SST HOLDING COMPANY, INC.
By: /s/Charee Francis-Vogelsang
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Title: Vice President and Secretary
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DIEBOLD SELF-SERVICE SYSTEMS
By: /s/Charee Francis-Vogelsang
-------------------------------------------------
Title: Secretary
-----------------------------------
DIEBOLD HOLDING COMPANY, INC.
By: /s/Charee Francis-Vogelsang
-------------------------------------------------
Title: Assistant Secretary
-----------------------------------
DIEBOLD MEXICO HOLDING COMPANY, INC.
By: /s/Charee Francis-Vogelsang
-------------------------------------------------
Title: Secretary
------------------------------------
DIEBOLD LATIN AMERICA HOLDING COMPANY,
INC.
By: /s/Charee Francis-Vogelsang
-------------------------------------------------
Title: Secretary
------------------------------------
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