EXHIBIT 10.17(ii)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of April 28, 2004
(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, NA, a national banking
association having its principal office in Chicago, Illinois, as agent for the
Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrowers, the Lenders party thereto and the Agent are parties
to an Amended and Restated Loan Agreement dated as of April 30, 2003, 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 27, 2005 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:
"First Amendment" shall mean the First Amendment to this
Agreement dated April 28, 2004 among the Borrowers, the Lenders and the
Agent.
"First Amendment Effective Date" shall mean the date as of
which the First 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
Revolving Credit Commitments as of the First Amendment Effective Date
to determine whether to extend the Revolving Credit Commitments, and
that the Revolving Credit Commitments shall be deemed terminated
(without requiring any payment as a result of such termination,
notwithstanding anything herein to the contrary) as of the First
Amendment Effective
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Date and reinstated and extended as of the First Amendment Effective
Date with the revised Facility Termination Date implemented by the
First Amendment.
1.4 The last sentence of Section 2.4 is restated as follows:
Simultaneously with the closing of any Permitted Securitization
Transaction facility, the Aggregate U.S. Revolving Credit Commitments
shall be automatically reduced, ratably among the U.S. Revolving Credit
Commitments, by the amount of any such Permitted Securitization
Transaction facility which, when aggregated with all other Permitted
Securitization Transaction facilities, exceeds $200,000,000.
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 The Borrowers agree to pay an amendment fee to each Lender in an
amount equal to two basis points on the Dollar Equivalent Amount of the
aggregate amount of such Lender's Commitments, payable on or within two Business
Days of the effective date of this Amendment. For purposes of this Section 4.1,
the amount of any Term Loan Commitment shall be deemed equal to the outstanding
principal
amount of the related Term Loan.
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 Borrowers, the Lenders and the Agent have
executed this Amendment as of the date first above written.
DIEBOLD, INCORPORATED
By: /s/Gregory T. Geswein
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Gregory T. Geswein
Senior Vice President & CFO
DIEBOLD GLOBAL FINANCE CENTRE
LIMITED, as a Subsidiary Borrower
DIEBOLD INTERNATIONAL LIMITED,
as a Subsidiary Borrower
DIEBOLD SELF-SERVICE SOLUTIONS LIMITED
LIABILITY COMPANY,
as a Subsidiary Borrower
DIEBOLD AUSTRALIA PTY LTD, as a
Subsidiary Borrower
By: /s/Robert J. Warren
----------------------------------
Robert J. Warren
Authorized Signatory
BANK ONE, NA, as Agent and as a Lender
By: /s/John Glisson
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John Glisson, Associate Director
ABN-AMRO BANK, N.V.
By: /s/Angela Noique
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Angela Noique, Group Vice President
By: /s/John M. Pastore
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John M. Pastore, Vice President
BANK OF AMERICA, N.A.
By: /s/Thomas R. Durham
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Thomas R. Durham, Managing Director
JPMORGAN CHASE BANK
By: /s/Dolores Walsh
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Dolores Walsh, Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/Marianne T. Meil
----------------------------------
Marianne T. Meil, Vice President
NATIONAL CITY BANK
By: /s/Thomas E. Redmond
----------------------------------
Thomas E. Redmond, Senior Vice President
THE BANK OF NEW YORK
By: /s/Kenneth R. McDonnell
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Kenneth R. McDonnell, Vice President
US BANK NA
By: /s/Brian H. Gallagher
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Brian H. Gallagher, Vice President
HSBC BANK USA
By: /s/Bruce Wicks
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Bruce Wicks, Vice President
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: /s/Barry Heraty
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Barry Heraty, Manager
By: /s/Linda O'Meara
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Linda O'Meara, Account Executive
PNC BANK, NATIONAL ASSOCIATION
By: /s/Joseph G. Moran
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Joseph G. Moran, Managing Director
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
DIEBOLD FINANCE COMPANY, INC.
By: /s/Margaret Pulgini
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Margaret Pulgini, VP and Treasurer
DIEBOLD HOLDING COMPANY, INC.
DIEBOLD ELECTION SYSTEMS, INC.
By: /s/Charee Francis-Vogelsang
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Print Name: Charee Francis-Vogelsang
Their: Vice President and Assistant Secretary
DIEBOLD CREDIT CORPORATION
DIEBOLD SST HOLDING COMPANY, INC.
DIEBOLD SELF-SERVICE SYSTEMS
DIEBOLD CHINA SECURITY HOLDING COMPANY, INC.
DIEBOLD LATIN AMERICA HOLDING COMPANY, INC.
DIEBOLD SOUTHEAST MANUFACTURING, INC.
DIEBOLD MIDWEST MANUFACTURING, INC.
DIEBOLD AUSTRALIA HOLDING COMPANY, INC.
By: /s/Charee Francis-Vogelsang
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Print Name: Charee Francis-Vogelsang
Their: Vice President and Secretary