Transfer and Administration Agreement [Amendment 1] - DCC Funding LLC, Diebold Credit Corp., Diebold Inc., Receivables Capital Corp. and bank of America NA
FIRST AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
This FIRST AMENDMENT TO TRANSFER AND ADMINISTRATION
AGREEMENT, dated as of May __, 2001 (the "AMENDMENT"), is among DCC FUNDING LLC,
a Delaware limited liability company (the "SPV"), DIEBOLD CREDIT CORPORATION, a
Delaware corporation, individually (the "ORIGINATOR") and as initial Servicer
(the "SERVICER"), DIEBOLD, INCORPORATED, an Ohio corporation, as Guarantor
("GUARANTOR"), RECEIVABLES CAPITAL CORPORATION, a Delaware corporation ("RCC"),
as the Conduit Investor, BANK OF AMERICA, NATIONAL ASSOCIATION, a national
banking association ("BANK OF AMERICA"), as the Agent for the Investors, as
Administrator and as an Alternate Investor, and the financial institutions from
time to time parties hereto as Alternate Investors.
BACKGROUND
1. The SPV, the Originator/Servicer, the Guarantor, RCC and Bank of
America, as Agent, Administrator and an Alternate Investor, are parties to the
Transfer and Administration Agreement, dated as of March 30, 2001 (the
"AGREEMENT").
2. The parties hereto desire to amend the Agreement to establish certain
hedge requirements and in certain other respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Agreement.
Section 2. PROJECTED REPAYMENT SCHEDULE. SECTION 1.1 of the Agreement is
hereby amended by inserting the following definition in alphabetical order in
such Section:
"PROJECTED REPAYMENT SCHEDULE" means the projected repayment of the
Net Investment to the Investors, as calculated by the Agent in consultation
with the Servicer.
Section 3. HEDGE REQUIREMENTS. SECTION 6.3 of the Agreement is hereby
amended by deleting PARAGRAPH (a) thereof in its entirety and substituting
therefor the following PARAGRAPH (a):
(a) On or prior to each Investment Date or Reinvestment Date, the SPV
shall enter into one or more Hedge Transactions with respect to the related
Investment or Reinvestment, PROVIDED that each such Hedge Transaction
shall:
(i) be entered into with a Hedge Counterparty and be governed by
a Hedging Agreement;
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(ii) have a schedule of monthly payment periods the first of
which commences on the Investment Date or Reinvestment Date of that
Investment or Reinvestment and the last of which ends on the last
Scheduled Payment due to occur under the Pool Receivables to which
that Investment or Reinvestment relates;
(iii) have an amortizing notional amount such that the Hedge
Notional Amount in effect during any monthly payment period shall be
(A) not less than the amount equal to (I) the Net Investment minus
(II) $15,000,000 and (B) not more than 110% of the Net Investment;
(iv) provide for two series of monthly payments to be netted
against each other, one such series being payments to be made by the
SPV to a Hedge Counterparty (solely on a net basis) by reference to
the Hedge Rate to be used in computing the Sale Discount Rate for that
Investment or Reinvestment, and the other such series being payments
to be made by the Hedge Counterparty to the Agent (solely on a net
basis) by reference to the one-month Offshore Rate as in effect on the
first day of each monthly payment period, the net amount of which
shall be paid into the Collection Account (if payable by the Hedge
Counterparty) or from the Collection Account to the extent funds are
available under SECTION 2.12 of this Agreement (if payable by the
SPV); and
(v) shall otherwise be in a form acceptable to the Agent;
PROVIDED, FURTHER that the weighted average life all of the Hedging
Agreements in effect at any time shall not be greater than 110% and not
less than 90% of the weighted average life of the Projected Repayment
Schedule; PROVIDED FURTHER, HOWEVER, that (i) during the 45 day period
immediately following the Closing Date, the SPV may maintain the Collateral
Valuation Reserve rather than enter into Hedge Transaction(s) pursuant to
this SECTION 6.3(a), and (ii) thereafter, up to $15,000,000 of the Net
Investment may not be hedged, so long as the SPV maintains the Collateral
Valuation Reserve. The "COLLATERAL VALUATION RESERVE" shall equal the
product of (i) the difference of (x) the Net Investment MINUS (y) the
notional amount of all Hedge Transactions at such time, TIMES (ii) 2%. The
Collateral Valuation Reserve will be marked-to-market monthly on each
Settlement Date by adding to the minimum Collateral Valuation Reserve the
product, if a positive number, of (i) the difference of (x) the Net
Investment MINUS (y) the notional amount of all Hedge Transactions at such
time, TIMES (ii) the fraction, expressed as a percentage, the numerator of
which is the difference of (x) the ADCB MINUS (y) the Interpolated ADCB,
and the denominator of which is the ADCB. On or before the 45(th) day
following the Closing Date, the SPV shall enter into Hedge Transactions
meeting the requirements of SECTION 6.3(a) with respect to all the Pool
Receivables as of such date. Upon there being $15,000,000 of unhedged Net
Investment hereunder, the SPV shall enter into a Hedge
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Transaction such that the total notional amount of all Hedge Transactions
shall equal the Net Investment at such time.
Section 4. GUARANTY. ARTICLE VI-A of the Agreement is hereby amended by
deleting such Article in its entirety and substituting therefor the following
ARTICLE VI-A:
ARTICLE VI-A
GUARANTY PROVISIONS
SECTION 6.1A GUARANTY. The Guarantor hereby unconditionally and
irrevocably covenants and agrees that (x) it will cause the Originator and,
so long as the Servicer is the Originator or an Affiliate thereof, the
Servicer duly and punctually to perform and observe all of the terms,
conditions, covenants, agreements (including agreements to make payments of
Deemed Collections) and indemnities of the Originator and the Servicer,
regardless of whether the Servicer is the Originator or an Affiliate
thereof, under any of the First Tier Agreement and the other Transaction
Documents strictly in accordance with the terms thereof and that if for any
reason whatsoever the Originator or the Servicer, shall fail to so perform
and observe such terms, conditions, covenants, agreements and indemnities,
the Guarantor will duly and punctually perform and observe the same,
PROVIDED that, so long as the Servicer is the Agent or any Alternate
Investor, the Guarantor shall not guaranty any indemnity of the Servicer to
the extent that such indemnity arises from the gross negligence or willful
misconduct of the Servicer, (y) it guaranties the payment of Hedge Breakage
Costs payable by the SPV to the related Hedge Counterparty under each of
the Hedge Agreements, and (z) it will indemnify and hold harmless each of
the SPV, the Investors, the Administrator, the Agent and the Hedge
Counterparties (collectively, the "GUARANTY PARTIES") for any and all
reasonable costs and expenses (including reasonable attorney's fees and
expenses) incurred by any Guaranty Party in enforcing its rights under this
Guaranty (the aforementioned guaranteed and indemnified obligations
collectively, the "GUARANTEED OBLIGATIONS"). For the avoidance of doubt,
the parties hereto acknowledge that the Guaranteed Obligations shall in no
event include any recourse for uncollectible Pool Receivables.
SECTION 6.2A GUARANTY ABSOLUTE, ETC. (a) The liabilities and
obligations of the Guarantor pursuant to this ARTICLE VI-A shall be
absolute and unconditional under all circumstances and shall be performed
by the Guarantor regardless of (i) whether any of the Guaranty Parties
shall have taken any steps to collect (x) from the Originator any of the
amounts payable by the Originator to the SPV under the First Tier
Agreement, (y) from the Servicer any of the amounts payable by the Servicer
to any of the Guaranty Parties pursuant to this Agreement, or shall
otherwise have exercised any of their rights or remedies under this
Agreement, the First Tier Agreement or the other Transaction Documents
against such Originator or the Servicer, as applicable, or against any
Obligor under any of the Pool Receivables, or (z) from the SPV any Hedge
Breakage Costs payable by the SPV pursuant to any Hedge Agreement, (ii) the
validity, legality or
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enforceability of this Agreement, the First Tier Agreement or any other
Transaction Documents, or the disaffirmance of any thereof in any event of
bankruptcy relating to the Originator or the Servicer, as applicable, or
the disaffirmance of any Hedge Agreement in any event of bankruptcy
relating to the SPV, (iii) any law, regulation or decree now or hereafter
in effect that might in any manner affect any of the terms or provisions of
this Agreement, the First Tier Agreement or any other Transaction Document
or any of the rights of the Guaranty Parties as against the Originator, the
Servicer or the SPV, as applicable, or as against any Obligor under any of
such Pool Receivables or that might cause or permit to be invoked any
alteration in time, amount, manner of payment or performance of any amount
payable by the Originator or the Servicer, as applicable, to any of the
Guaranty Parties under this Agreement or the First Tier Agreement, (iv) the
merger or consolidation of the Originator, the Servicer or the SPV, as
applicable, into or with any corporation or any sale or transfer by the
Originator, the Servicer or the SPV, as applicable, or all or any part of
its property, (v) the existence or assertion of any Adverse Claim with
respect to any Pool Receivable or Affected Asset, or (vi) any other
circumstance whatsoever (with or without notice to or knowledge of the
Guarantor) which may or might in any manner or to any extent vary the risk
of the Guarantor, or might otherwise constitute a legal or equitable
discharge of a surety or guarantor, it being the purpose and intent of the
Guarantor that the liabilities and obligations of the Guarantor under this
ARTICLE VI-A shall be absolute and unconditional under any and all
circumstances, and shall not be discharged except by payment and
performance as in this ARTICLE VI-A provided. This guaranty is a guaranty
of payment and performance, in each case, with respect to the Guaranteed
Obligations, and not just of collection.
(b) Without in any way affecting or impairing the liabilities and
obligations of the Guarantor, any of the Guaranty Parties may at any time
and from time to time in its discretion, without the consent of, or notice
to, the Guarantor, and without releasing or affecting the Guarantor's
liability hereunder (i) extend or change the time, manner, place or terms
of this Agreement, the First Tier Agreement or any other Transaction
Document, (ii) settle or compromise any of the amounts payable by the
Originator or the Servicer, as applicable, to any of the Guaranty Parties
under this Agreement or the First Tier Agreement or payable by the SPV to
any Hedge Counterparty under the related Hedge Agreement or subordinate the
same to the claims of others, (iii) retain or obtain a lien upon or
security interest in any property to secure any of the obligations
hereunder, (iv) retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the Guarantor, with respect to any of
the obligations due hereunder, or (v) release or fail to perfect any lien
upon or security interest in, or impair, surrender, release or permit any
substitution in exchange for, all or any part of any property securing any
of the obligations under this Agreement or the First Tier Agreement; IT
BEING UNDERSTOOD that nothing contained in this ARTICLE VI-A shall give any
Guaranty Party the right to take any of the foregoing actions if not
permitted by the provisions of this Agreement or the First Tier Agreement,
by law or otherwise.
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SECTION 6.3A REINSTATEMENT, WAIVER, ETC. The provisions of this
ARTICLE VI-A shall continue to be effective or be reinstated, as the
case may be, if at any time payment of any of the amounts payable by
the Originator pursuant to the First Tier Agreement, the Servicer,
pursuant to this Agreement, or the SPV, pursuant to any Hedge
Agreement to any of the Guaranty Parties is rescinded or must
otherwise be restored or returned by any of such Persons, as the case
may be, upon any event of bankruptcy involving any Originator, the
Servicer or the SPV, or otherwise, all as though such payment had not
been made. The Guarantor hereby waives (i) notices of the occurrence
of any default under this Agreement or the First Tier Agreement, (ii)
any requirement of diligence or promptness on the part of the
applicable Guaranty Parties in making demand, commencing suit or
exercising any other right or remedy under any of the Transaction
Documents, or otherwise, and (iii) any right to require any Guaranty
Party to exercise any right or remedy against the Originator, the
Servicer or the SPV, as applicable, or the Pool Receivables prior to
enforcing any of their rights against the Guarantor under this ARTICLE
VI-A. The Guarantor agrees that (i) in the event of an Event of
Bankruptcy with respect to the Originator or the Servicer and if such
event shall occur at a time when all of the indemnified amounts and
other amounts due from the Originator or the Servicer, as applicable,
under any of the Transaction Documents may not then be due and payable
or (ii) in the event of an Event of Bankruptcy with respect to the SPV
and if such event shall occur at a time when all of the Hedge Breakage
Costs due from the SPV under any of the Hedging Agreements may not be
then due and payable, in each case, the Guarantor will pay to the
applicable Guaranty Party forthwith the full amount which would be
payable under the applicable Transaction Document by the Guarantor if
all such indemnified amounts and other obligations or Hedge Breakage
Costs were then due and payable.
SECTION 6.4A SUBROGATION. The Guarantor will not exercise or
assert any rights which it may acquire by reason of any payment made
hereunder, whether by way of subrogation, reimbursement or otherwise,
unless and until all of the Guaranteed Obligations shall have been
paid and performed in full. If any payment shall be made to the
Guarantor on account of any payment made hereunder at any time when
all of the Guaranteed Obligations shall not have been paid and
performed in full, each and every amount so paid will be held in trust
for the benefit of the Guaranty Parties and any other applicable
Person and forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations of the Originator,
the Servicer or the SPV to the extent then unsatisfied, in accordance
with the terms of the Transaction Documents or any document delivered
in connection with the Transaction Documents, as the case may be.
SECTION 6.5A INFORMATION. The Guarantor represents and warrants
that it now has, and will continue to have, independent means of
obtaining information concerning each Originator's and the Servicer's
affairs, financial condition and business. No Guaranty Party shall
have any duty or responsibility to provide the Guarantor with any
credit or other information concerning the affairs, financial
condition or business of
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the Originator or the Servicer which may come into the possession of such
Guaranty Party.
SECTION 6.6A SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
ETC. This ARTICLE VI-A shall:
(a) be binding upon the Guarantor, and its successors and permitted
transferees and assigns; and
(b) inure to the benefit of and be enforceable by each Guaranty Party
and each of their respective successors, transferees and assigns.
Without limiting the generality of the foregoing CLAUSE (b), the Agent on
behalf of any Investor may assign or otherwise transfer (in whole or in
part) any undivided interest held by it pursuant to this Agreement to any
other Person, and such other Person shall thereupon become vested with all
rights and benefits in respect thereof granted to such Person under any
Transaction Document (including this ARTICLE VI-A) or otherwise, subject,
however, to any contrary provisions in such assignment or transfer, and to
the provisions of this Agreement.
SECTION 6.7A BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT OF GUARANTY. In addition to, and not in limitation of, SECTION
6.6A, this ARTICLE VI-A shall be binding upon the Guarantor and its
successors, transferees and assigns; PROVIDED, HOWEVER, that the Guarantor
may not assign any of its obligations hereunder without the prior written
consent of the Administrative Agent, the SPV and each Investor.
SECTION 6.8A COVENANTS OF THE GUARANTOR. At all times from the date
hereof to the Final Payout Date, unless the Agent shall otherwise consent
in writing:
(a) CONDUCT OF BUSINESS; OWNERSHIP. The Guarantor shall carry on and
conduct its business in substantially the same manner and in substantially
the same fields of enterprise as it is presently conducted and do all
things necessary to remain duly organized, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted. The Originator shall at
all times be a Wholly Owned Subsidiary of the Guarantor.
(b) COMPLIANCE WITH LAWS, ETC. The Guarantor shall comply with all
Laws to which it or its respective properties may be subject and preserve
and maintain its corporate existence, rights, franchises, qualifications
and privileges.
(c) NO CHANGE IN BUSINESS. The Guarantor shall not make any change in
the character of its business, which change would have a Material Adverse
Effect.
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(d) NO SUBSIDIARIES, MERGERS, ETC. The Guarantor shall not consolidate
or merge with or into, or sell, lease or transfer all or substantially all
of its assets to, any other Person PROVIDED HOWEVER, that, if no
Termination Event or Potential Termination Event shall have occurred and be
continuing or would result therefrom, the Guarantor may merge or
consolidate with any other corporation organized under the laws of the
United States or any political subdivision thereof so long as the Guarantor
is the surviving corporation.
Section 5. HEDGE BREAKAGE COSTS. SECTION 7.2(a) of the Agreement is hereby
amended by inserting the phrase "plus any Hedge Breakage Costs due under any
Hedging Agreement resulting from such Prepayment" at the end of the fourth
sentence of such Section.
Section 6. CONSENT OF HEDGE COUNTERPARTY TO AMENDMENT. SECTION 11.2(b) of
the Agreement is hereby further amended by inserting the following proviso at
the end of the first sentence thereof:
; and PROVIDED FINALLY that, if Bank of America shall not be the Agent and
the Majority Investor, but shall be the Hedge Counterparty under any Hedge
Transaction, neither SECTION 2.12 nor SECTION 2.14 shall be amended without
the consent of Bank of America as Hedge Counterparty.
Section 7. THIRD-PARTY BENEFICIARIES. The Agreement is hereby further
amended by inserting a new Section 11.12 after Section 11.11 as follows:
SECTION 11.12 THIRD PARTY BENEFICIARIES. Each of the Hedge
Counterparties party to the Hedge Transactions shall be a third party
beneficiary of SECTION 4.3 and ARTICLE VI-A of this Agreement.
Section 8. APPLICATION OF COLLECTIONS DISTRIBUTABLE TO SPV. SECTION 2.14 of
the Agreement is hereby amended by inserting the phrase "including Hedge
Breakage Costs," after the phrase "the SPV's operating expenses," where it
appears in CLAUSE FIRST thereof.
Section 9. CONDITIONS PRECEDENT. The effectiveness of this Amendment shall
be subject to the receipt by the Agent of the following documents: (i) this
Amendment duly executed by the parties hereto; and (ii) an opinion of Jones,
Day, Reavis & Pogue regarding bankruptcy matters.
Section 10. REPRESENTATIONS AND WARRANTIES. Each of the SPV, the
Originator/Servicer and the Guarantor hereby represents and warrants that, after
giving effect to this Amendment (i) each representation and warranty of such
Person contained in the Operative Documents is true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof, except to the extent such representations or warranties relate solely to
an earlier date, in which case such representations and warranties were true and
correct in all material respects on and as of such earlier date, (ii) no
Termination Event or Potential Termination Event
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has occurred and is continuing, and (iii) each Transaction Document to which the
SPV, the Originator/Servicer or the Guarantor is a party is in full force and
effect with respect to it.
Section 11. REAFFIRMATION OF GUARANTY. The Guarantor hereby reaffirms and
acknowledges that, after giving effect to this Amendment, the guaranty
provisions of Article VI-A of the Agreement, as amended hereby, remain in full
force and effect.
Section 12. MISCELLANEOUS. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to the conflict of laws provisions thereof (other than Section 5-1401 of the New
York General Obligations Law). This Amendment may be executed by the parties
hereto in separate counterparts (including by facsimile) each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same agreement. The Agreement, as amended
hereby, remains in full force and effect. Any reference to the Agreement from
and after the date hereof shall be deemed to refer to the Agreement as amended
hereby, unless otherwise expressly stated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the year first above
written.
RECEIVABLES CAPITAL
CORPORATION, as Conduit Investor
By: /s/ Douglas K. Johnson
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Name: Douglas K. Johnson
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Title: President
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DCC FUNDING LLC, as SPV
By: /s/ Jeffrey J. Van Cleve
--------------------------------
Name: Jeffrey J. Van Cleve
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Title: Vice President
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DIEBOLD CREDIT CORPORATION, individually and
as Servicer
By: /s/ Jeffrey J. Van Cleve
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Name: Jeffrey J. Van Cleve
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Title: Vice President & General
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Manager
DIEBOLD, INCORPORATED, as Guarantor
By: /s/ Gregory T. Geswein
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Name: Gregory T. Geswein
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Title: Senior Vice President and
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Chief Financial Officer
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Agent, as Administrator and as an Alternate
Investor
By: /s/ Erle R. L. Archer
--------------------------------
Name: Erle R. L. Archer
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Title: Principal
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