EXHIBIT 10.17 (vi)
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT, dated as of May 24, 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 The definition of "Facility Termination Date" contained in Section
1.1 is restated as follows:
"Facility Termination Date" means the earlier to occur of (a)
April 30, 2003 or (b) the date on which the Revolving Credit Commitments
are terminated pursuant to Article VIII.
1.2 The following definitions are added to Section 1.1 in appropriate
alphabetical order:
"Fifth Amendment" shall mean the Fifth Amendment to this
Agreement dated May 24, 2002 among the Borrowers, the Lenders and the
Agent.
"Fifth Amendment Effective Date" shall mean the date as of which
the Fifth Amendment is effective.
1.3 The following is added to the end of Section 2.1:
The Borrowers and the Lenders agree that the Lenders may review the Commitments
as of the Fifth Amendment Effective Date to determine whether to extend the
Commitments, and that the Commitments shall be deemed terminated (without
requiring any payment as a result of such termination, notwithstanding anything
herein to the contrary) as of the Fifth Amendment Effective Date and reinstated
and extended as of the Fifth Amendment Effective Date with the revised Facility
Termination Date implemented by the Fifth 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.
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.
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
DIEBOLD INTERNATIONAL LIMITED
By: /s/ Timothy J. McDannold
Title: Designated Financial Officer
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
DIEBOLD GLOBAL FINANCE CENTRE LIMITED
By: /s/Timothy J. McDannold
Title: Designated Financial Officer
BANK ONE, MICHIGAN, as Agent, Swing Lender,
Issuer and Lender
By: /s/Glenn A. Currin
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By: /s/Marianne T. Meil
Title: Vice President
NATIONAL CITY BANK
By: /s/James C. Ritchie
Title: Vice President
ABN AMRO BANK N.V.
By: /s/Terrence J. Ward
Title: Group Vice President
By: /s/E. John Hill
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/Philip Potter
Title: Vice President
JP MORGAN CHASE BANK
By: /s/Henry W. Centa
Title: Vice President
THE BANK OF NEW YORK
By: /s/Kenneth R. McDonnell
Title: Assistant Vice President
FIRSTAR BANK
By: /s/David J. Dannemiller
Title: Vice President
HSBC BANK USA
By: /s/Cynthia M. Nissen
Title: First Vice President
THE GOVERNOR AND COMPANY OF THE BANK
By: /s/Edward Nagee
Title: Director
By: /s/Paul Clarke
Title: Senior Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/Joseph G. Moran
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.
DIEBOLD INVESTMENT COMPANY
By: /s/Margaret Pulgini
Title: VP/Treasurer
DIEBOLD FINANCE COMPANY, INC.
By: /s/Margaret Pulgini
Title: VP/Treasurer
DIEBOLD CREDIT CORPORATION
By: /s/Charee Francis-Vogelsang
Title: Vice President & Secretary
DIEBOLD SST HOLDING COMPANY, INC.
By: /s/Charee Francis-Vogelsang
Title: Vice President & Secretary
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