EXHIBIT 10.17(v)
FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT, dated as of February 13,
2002 (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
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 definition of "Facility Termination Date" is restated as
follows:
"Facility Termination Date" means the earlier to occur of (a)
February 12, 2003 or (b) the date on which the Revolving Credit
Commitments are terminated pursuant to Article VIII.
(b) The definition of "Total Debt" is amended by restating the
clause at the end of such definition which was added pursuant to the Second
Amendment as follows:
"and Indebtedness consisting of avals by any of the Company's
Subsidiaries for the benefit of, and with respect to obligations which
are not classified as Indebtedness of, any of the Company's other
Subsidiaries which are entered into in the ordinary course of business
and consistent with standard business practices, shall not be considered
part of Total Debt.
1.2 Section 2.4 is amended by adding the following to the end
thereof: "The Aggregate U.S. Revolving Credit Commitments shall be automatically
reduced, ratably among the U.S. Revolving Credit Commitments, by the amount of
any Permitted Securitization Transaction facility entered into on or after
50
February 13, 2002 which, when aggregated with all other Permitted Securitization
Transaction facilities entered into on or after February 13, 2002, exceeds
$100,000,000, simultaneously with the closing of any such Permitted
Securitization Transaction facility."
1.3 Reference in Section 2.16(a)(i)(A) to "$20,000,000" is deleted
and "$30,000,000" is substituted in place thereof.
1.4 Reference in Section 2.16(a)(ii)(A) to "EUR10,000,000" is
deleted and "EUR15,000,000" is substituted in place thereof.
1.5 Section 6.10(iii) is restated as follows:
(iii) Any sale or other transfer of an interest in leases or
lease receivables or accounts or notes receivables on a limited
recourse basis, reasonably acceptable to the Agent, provided that
(a) such sale or transfer qualifies as a sale under Agreement
Accounting Principles, and (b) the aggregate outstanding amount
of such financings in connection therewith shall not exceed the
sum of the amount outstanding prior to February 13, 2002 plus
$200,000,000 (any such sale or other transfer, a "Permitted
Securitization Transaction").
1.6 Reference in Section 6.11(iii) to "leases and lease receivables"
shall be deleted and "leases and lease receivables and accounts and notes
receivables" shall be substituted in place thereof.
1.7 Reference in Section 6.12 to "leases or lease receivables" shall
be deleted and "leases or lease receivables or accounts or notes receivables"
shall be substituted in place thereof.
1.8 Section 6.12 is amended by adding the following new clause (ix)
to the end thereof: "(ix) Liens in favor of financial institutions against bank
account deposits in foreign bank accounts at such financial institution granted
in the ordinary course of business and consistent with standard business
practices in such foreign jurisdiction, provided that such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the Company or its Subsidiaries."
1.9 Section 6.15 is amended by restating clause (ii) thereof as
follows: "(ii) Indebtedness outstanding on the date of this Agreement, but no
increase in the principal amount thereof, and Indebtedness consisting of avals
by any of the Company's Subsidiaries for the benefit of, and with respect to
obligations which are not classified as Indebtedness of, any of the Company's
other Subsidiaries which are entered into in the ordinary course of business and
consistent with standard business practices."
1.10 The following new Section 13.3.3 is added to the Loan Agreement:
13.3.3 (i) Notwithstanding anything to the contrary contained
herein, any Lender (a "Designating Lender") may, with the prior written approval
of the Company (which approval shall not be unreasonably withheld), grant to one
or more special purpose funding vehicles (each, an "SPV", identified
as such in writing from time to time by the Designating Lender to the Agent and
the Company, the option to provide to a Borrower all or any part of any Loan
that such Designating Lender would otherwise be obligated to make to such
Borrower pursuant to this Agreement, provided that (A) nothing herein shall
constitute a commitment by any SPV to make any Loan, (B) if any SPV elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Designating Lender shall be obligated to make such Loan pursuant to
the terms hereof, (C) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitments hereunder
and (D) the Borrowers shall not incur any additional costs or expenses as a
result of any such grant by a Designated Lender to an SPV. The making of a Loan
by an SPV hereunder shall utilize the relevant Commitment of the Designating
Lender to the same extent, and as if, such Loan were made by such Designating
Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall
have all the rights that a Lender making such Loans or portion thereof would
have had under this Agreement; provided, however, that each SPV shall have
granted to its Designating Lender an irrevocable power of attorney, to deliver
and receive all communications and notices under this Agreement (and any related
documents) and to exercise on such SPV's behalf, all of such SPV's voting rights
under this Agreement. No additional Note shall be required to evidence the Loans
or portion thereof made by an SPV; and the related Designating Lender shall be
deemed to hold its Note as agent for such SPV to the extent of the Loans or
portion thereof funded by such SPV. In addition, any payments for the account of
any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or payment under this Agreement for which a Lender would otherwise
be liable. In furtherance of the foregoing, each party hereto hereby agrees
(which agreements shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other person in instituting against, such SPV
any bankruptcy, reorganization, arrangement insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(iv) In addition, subject to Section 13.4, any SPV may, with the prior
written approval of the Company (which approval shall not be unreasonably
withheld), (A) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Loans to the
Designating Lender or to any financial institutions providing liquidity and/or
credit support to or for the account of such SPV to support the funding or
maintenance of Loans and (B) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancements to such
SPV. This 13.3.3 may not be amended without the written consent of any
Designating Lender affected thereby.
1.11 (a) The Pricing Schedule attached as Exhibit A to the Loan
Agreement is replaced with the Pricing Schedule attached as Exhibit A hereto,
and (b) Schedule 1.1(a) attached to the Loan Agreement is replaced with Schedule
1.1(a) attached hereto.
1.12 Notwithstanding anything in this Amendment, the Loan Agreement or
the other Loan Documents to the contrary:
(a) Subject to paragraph (b) below, all outstandings under the Loan
Agreement shall be re-allocated among Lenders, including the New Lender (as
hereinafter defined), on February 13, 2002 to give effect to the new Commitment
levels established hereunder, and the Agent and the Lenders, including the New
Lender, hereby make all appropriate assignments, purchases, assumptions and
adjustments among themselves on the
date hereof to give effect to the new Commitment levels established hereunder
per Schedule 1.1(a). It is understood and agreed that all assignments,
purchases, assumptions and adjustments hereunder are made without recourse to
the assignor Lender and are subject to Section 1.13 below.
(b) In order to avoid the prepayment of Fixed Rate Advances that are
existing prior to February 13, 2002 (the "Existing Fixed Rate Advances"), (i)
only the Lenders other than the New Lender ( the "Original Lenders") shall
continue to participate in the Existing Fixed Rate Advances until the end of
their current Interest Periods, (ii) the outstandings as of February 13, 2002
that are acquired by the New Lender from the Original Lenders shall be limited
to Floating Rate Advances, shared among the Lenders in accordance with their
respective Commitment amounts, (iii) on and after February 13, 2002, all new
Fixed Rate Advances, including any continuations or conversions thereof, shall
be participated in by the New Lender, as well as the Original Lenders, in
accordance with their respective Commitment amounts after giving effect to this
Amendment and (iv) the Borrowers shall not be allowed to request any Advance
that would cause any Lender's Advances to exceed any of such Lender's
Commitments. If the Obligations are accelerated prior to the end of an Interest
Period for any Existing Fixed Rate Advance, the New Lender shall purchase from
the Original Lenders participations in the Existing Fixed Rate Advances
outstanding as of the date of such acceleration such that all Existing Fixed
Rate Advances are shared among the Lenders in accordance with their respective
Commitment amounts.
1.13 Notwithstanding anything in the Loan Agreement to the contrary,
PNC Bank, National Association (the "New Lender") is hereby added as a Lender to
the Loan Agreement and shall for all purposes be a Lender party to the Loan
Agreement and any other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan Agreement and the other
Loan Documents to the same extent as if it were an original party thereto. The
New Lender hereby assumes an interest in and to all of the rights and
obligations of a Lender under the Loan Agreement and the other Loan Documents as
of the date hereof with Commitments equal to the amount set forth opposite its
name on Schedule 1.1(a) hereto. Neither the Agent nor any of the Lenders: (a)
makes any representation or warranty to the New Lender or assumes any
responsibility to the New Lender with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or the other
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, any other Loan Document
or any other instrument or document furnished pursuant thereto, or the validity,
enforceability, perfection, priority, condition, value or sufficiency of any
collateral securing or purporting to secure the Loans or any mistake, error of
judgment, or action taken or omitted to be taken in connection with the Loans or
the Loan Documents; or (b) makes any representation or warranty or assumes any
responsibility with respect to the financial condition of the Company or any of
its Subsidiaries or the performance or observance by any Borrower or Guarantor
of any of its obligations under the Loan Agreement, any other Loan Documents or
any other instrument or document furnished pursuant thereto. The New Lender: (i)
confirms that it has received a copy of the Loan Agreement and the other Loan
Documents, together with copies of all financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment; (ii) agrees that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Agreement and the other Loan Documents; (iii) appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the Loan Agreement and the other Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Loan Agreement and the other Loan Documents are required to be performed
by it as a Lender and (v) makes all representations and warranties of an
assignee/purchaser under the Notice of Assignment and Assignment forms attached
to
the Loan Agreement. The New Lender's address for notices is as set forth below
its signature on this Amendment.
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 other charter documents, or of any material
agreement or undertaking to which it is a party or by which it is bound.
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 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 The Borrowers agree to pay an amendment fee to each Lender in an
amount equal to three basis points on the Dollar Equivalent Amount of the
aggregate amount of such Lender's Commitments, payable on the effective date of
this Amendment.
4.2 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.
4.3 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.
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/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & CFO
DIEBOLD INTERNATIONAL LIMITED
By: /s/ Xxxxxxx X. XxXxxxxxx
Title: Designated Financial Officer
DIEBOLD SELF-SERVICE SOLUTIONS S.a.r.l.,
GRANGES-PACCOT
By: /s/Xxxxxxx X. XxXxxxxxx
Title: Designated Financial Officer
DIEBOLD AUSTRALIA PTY LTD
By: /s/Xxxxxxx X. XxXxxxxxx
Title: Designated Financial Officer
DIEBOLD GLOBAL FINANCE CENTRE LIMITED
By: /s/Xxxxxxx X. XxXxxxxxx
Title: Designated Financial Officer
BANK ONE, MICHIGAN, as Agent, Swing Lender,
Issuer and Lender
By: /s/Xxxxx X. Xxxxxx
Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxx
Title: Assistant Vice President
NATIONAL CITY BANK
By: /s/Xxxxxxx X. XxXxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/Xxxxxx Comfort
Title: Senior Vice President
By: /s/Xxxxxxxx X. Xxxx
Title: Group Vice President
BANK OF AMERICA, N.A.
By: /s/Xxxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/Xxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/Xxxxxxx X. XxXxxxxxx
Title: Assistant Vice President
FIRSTAR BANK
By: /s/Xxxxx Xxxxxxxxxxx
Title: Vice President
HSBC BANK USA
By: /s/Xxxxxxx X. Xxxxxx
Title: First Vice President
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND
By: /s/Xxxxxx Xxxxx
Title: Director
By: /s/Xxxx Xxxxxx
Title: Senior Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxx
Title: Vice President
CONSENT AND AGREEMENT
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.
XXXXXXX INVESTMENT COMPANY
By: /s/Xxxxxxxx Xxxxxxx
Title: VP/Treasurer
DIEBOLD FINANCE COMPANY, INC.
By: /s/Xxxxxxxx Xxxxxxx
Title: VP/Treasurer
DIEBOLD CREDIT CORPORATION
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Vice President and Secretary
DIEBOLD SST HOLDING COMPANY, INC.
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Vice President and Secretary
DIEBOLD SELF-SERVICE SYSTEMS
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Secretary
DIEBOLD HOLDING COMPANY, INC.
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Assistant Secretary
DIEBOLD MEXICO HOLDING COMPANY, INC.
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Secretary
DIEBOLD LATIN AMERICA HOLDING COMPANY,
INC.
By: /s/Xxxxxx Xxxxxxx-Xxxxxxxxx
Title: Secretary
EXHIBIT A
PRICING SCHEDULE
The Applicable Margin for Floating Rate Loans, Eurodollar Loans and
Multicurrency Loans, the Facility Fee payable pursuant to Section 2.5 and the
Letter of Credit Fee payable pursuant to Section 2.15.6 shall, subject to the
last sentence of this Exhibit A, be determined in accordance with the Pricing
Matrix set forth below based on the Company's Total Net Debt to Capitalization
Ratio in effect from time to time.
Pricing Matrix (in basis points)
------------------------------------------------------------------------------------------------------------------------
Applicable Eurodollar/
Floating Rate Eurocurrency Margin for
Margin for Revolving Credit Loans,
Total Net Debt to Revolving Multicurrency Loans and
Level Capitalization Ratio Facility Fee Credit Loans Letter of Credit Fees
------------------------------------------------------------------------------------------------------------------------
I < 25% 8.0 b.p. 0.0 b.p. 37.0 b.p.
------------------------------------------------------------------------------------------------------------------------
II > 25% but < 35% 10.0 b.p. 0.0 b.p. 45.0 b.p.
-
------------------------------------------------------------------------------------------------------------------------
III > 35% but < 45% 15.0 b.p. 0.0 b.p. 55.0 b.p.
-
------------------------------------------------------------------------------------------------------------------------
IV > 45% 20.0 b.p. 0.0 b.p. 75.0 b.p.
-
------------------------------------------------------------------------------------------------------------------------
If the Aggregate Total Outstandings of all Lenders equals or exceeds 33%
of the Aggregate Commitments of all Lenders, the Eurodollar, Eurocurrency and
Letter of Credit Fee Applicable Margin will increase by 10 basis points at every
level on the Pricing Matrix.
Such Applicable Margin shall be determined in accordance with the
foregoing Pricing Matrix based on the Company's level as reflected in the most
recent financial statements of the Company delivered pursuant to Section 6.1(i)
and (ii) of the Loan Agreement. Adjustments, if any, to the Applicable Margin
shall be effective 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and 95 days after the end of each
fiscal year of the Company, commencing with the first such day after the
Effective Date. If the Borrower fails to deliver the financials statements
required pursuant to Section 6.1(i) or (ii) at the time required or any other
Default has occurred and is continuing, then the Applicable Margin shall be the
highest Applicable Margin set forth in the foregoing Pricing Matrix until such
Default is cured or waived under the Agreement. Notwithstanding the foregoing,
the Applicable Margin for the period from and including February 13, 2002 until
it shall be adjusted for the first time after February 13, 2002 shall be the
Level I Applicable Margin described above.
SCHEDULE 1.1(a)
COMMITMENTS
TITLE U.S. DOLLARS EUROS
----- ------------ -----
Bank One, Michigan Administrative Agent $28,000,000 E22,000,000
(14%) (14.66667%)
Key Bank National Association Co-Syndication Agent $26,000,000 E16,000,000
(13%) (10.66667%)
National City Bank Co-Syndication Agent $23,000,000 E18,000,000
(11.5%) (12%)
ABN Amro Bank, N.V. Documentation Agent $25,000,000 E15,000,000
(12.5%) (10%)
The Chase Manhattan Bank $18,000,000 E12,000,000
(9%) (8%)
The Bank of New York $18,000,000 E12,000,000
(9%) (8%)
Bank of America, N.A. $18,000,000 E12,000,000
(9%) (8%)
Firstar Bank $15,000,000 E10,000,000
(7.5%) (6.66667%)
PNC Bank, National Association $15,000,000 E10,000,000
(7.5%) (6.66667%)
HSBC Bank USA $14,000,000 E11,000,000
(7%) (7.33333%)
The Governor and Company of the Bank
of Ireland $0 E12,000,000
(0%) (8%)
TOTAL $200,000,000 E150,000,000
============ =============
DETROIT 7-3312 639364-13
