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EXHIBIT 10.17 (ii)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of November 1, 2000
(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 and the Agent are parties to a Loan
Agreement dated December 1, 1999 (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 shall be amended as follows:
1.1 Section 1.1 is amended as follows:
(a) The definitions of "FACILITY TERMINATION DATE" and "MATURITY DATE"
are restated as follows:
"FACILITY TERMINATION DATE" means the earlier to occur of (a)
February 28, 2001 or (b) the date on which the Revolving Credit
Commitments are terminated pursuant to Article VIII.
"MATURITY DATE" means the earlier to occur of (a) the date two
years after the Facility Termination Date or (b) the date on which the
maturity of the Term Loans are accelerated pursuant to Article VIII.
(b) The definition of "INTEREST PERIOD" is amended by restating clause
(ii) of the proviso to such definition as follows:
(ii) any Interest Period applicable to a Fixed Rate
Loan that would otherwise extend beyond (A) with respect to any Term
Loan, the Maturity Date, shall end on the Maturity Date or (B) with
respect to any other Loan, the Facility Termination Date, may be
elected but shall end on the Facility Termination Date (and such Loan
shall be due and payable on the Facility Termination Date and any
amounts due under Section 3.4 shall be payable) unless the Facility
Termination Date is extended on or before the last day of such Interest
Period to a date beyond the end of such Interest Period; and
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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 and is not in contravention of any
statute, law or regulation or of any terms of its Articles of Incorporation or
By-laws, 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.
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 for representations and warranties made only as
of a certain date, which representations and warranties were true on the date
made, and 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.
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/ Xxxxxx W. O'Dell
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Title: Chairman, President & CEO
DIEBOLD INTERNATIONAL LIMITED
By: /s/ Xxxxxxx X. XxXxxxxxx
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Title: Designated Financial Officer
DIEBOLD SELF-SERVICE SOLUTIONS S.a.r.l.,
GRANGES-PACCOT
By: /s/ Xxxxxxx X. XxXxxxxxx
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Title: Designated Financial Officer
BANK ONE, MICHIGAN, as Agent, Swing Lender,
Issuer and Lender
By: /s/ Xxxx X. XxXxxx
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Title: Managing Director
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ABN AMRO BANK N.V.
By: /s/ Xxxx X. Honda
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Title: Group Vice President
By: Xxxxxxxx X. Xxxx
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Title: Senior Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxx
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Title: Principal
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxx
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Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. XxXxxxxxx
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Title: Assistant Vice President
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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 in accordance with the terms thereof,
acknowledges and agrees that it has no setoff, counterclaim, defense or other
claim or dispute with respect to the Guaranty 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 Credit Agreement.
XXXXXXX INVESTMENT COMPANY
By: /s/ Xxxxxxxx Xxxxxxx
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Title: Vice President/Treasurer
DIEBOLD FINANCE COMPANY, INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Title: Vice President/Treasurer
DIEBOLD CREDIT CORPORATION
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Vice President and Secretary
DIEBOLD SST HOLDING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Vice President and Secretary
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DIEBOLD SELF-SERVICE SYSTEMS
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Secretary
DIEBOLD HOLDING COMPANY, INC.
By: Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Assistant Secretary
DIEBOLD MEXICO HOLDING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Secretary
DIEBOLD LATIN AMERICA HOLDING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxxx
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Title: Secretary
