DIEBOLD NIXDORF, Inc 8-K, filed Jun 1, 2023
DIEBOLD NIXDORF, Inc (DBD)
About this 8-K
DIEBOLD NIXDORF, Inc filed this 8-K on June 1, 2023, reporting on events of May 30, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.03: Bankruptcy or receivership
- Item 2.04: Debt obligation accelerated or increased
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in its Charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code:
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement |
As previously disclosed, on May 30, 2023, Diebold Nixdorf, Incorporated (the “Company”) and certain of its direct and indirect subsidiaries (collectively, the “Company Parties”) entered into a Restructuring Support Agreement (the “Restructuring Support Agreement”) with certain holders (collectively, the “Consenting Creditors”) of: (i) obligations under the Credit Agreement, dated as of December 29, 2022 (the “Superpriority Credit Agreement”), by and among Diebold Nixdorf Holding Germany GmbH, as borrower (the “German Borrower”), the Company and certain of the Company Parties, as guarantors, the lenders party thereto, GLAS USA LLC, as administrative agent (the “Superpriority Administrative Agent”), and GLAS Americas LLC, as collateral agent (the “Superpriority Collateral Agent”), (ii) obligations under the Credit Agreement, dated as of December 29, 2022 (the “First Lien Term Loan Credit Agreement”), by and among the Company, as borrower, certain of the Company Parties, as guarantors, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent (the “First Lien Administrative Agent”), and GLAS Americas LLC, as collateral agent (the “First Lien Collateral Agent”); (iii) the Company’s 9.375% senior secured notes due 2025 (the “2025 US Senior Notes”); (iv) Diebold Nixdorf Dutch Holding B.V.’s 9.000% senior secured notes due 2025 (the “2025 EUR Senior Notes” and, together with the 2025 US Senior Notes, the “2025 Senior Notes”); and (iv) the Company’s 8.50%/12.50% senior secured PIK toggle notes due 2026 (the “2L Notes”).
The Restructuring Support Agreement sets forth the agreed-upon terms among the Company, the other Company Parties and the Consenting Creditors for the effectuation of a deleveraging transaction through, among other things, (i) a pre-packaged chapter 11 plan of reorganization to be filed by the Company and certain of its subsidiaries (collectively, the “Debtors”) in connection with the commencement by the Debtors of voluntary cases under chapter 11 (the “Chapter 11 Cases”) of title 11 of the United States Code (the “U.S. Bankruptcy Code”) in the U.S. Bankruptcy Court for the Southern District of Texas (the “U.S. Bankruptcy Court”), (ii) a scheme of arrangement to be filed by the Dutch Issuer relating to certain of the Company’s subsidiaries (the “Dutch Scheme Companies”) in connection with the commencement by the Dutch Issuer of voluntary proceedings (the “Dutch Scheme Proceedings”) under the Dutch Act on Confirmation of Extrajudicial Plans (Wet homologatie onderhands akkoord) (the “Dutch Restructuring Law”) in the District Court of Amsterdam (the “Dutch Court”) and (iii) recognition of such Dutch scheme pursuant to proceedings to be commenced under chapter 15 of the U.S. Bankruptcy Code by the Dutch Issuer.
Under the Restructuring Support Agreement, the Consenting Creditors have agreed, subject to certain terms and conditions, to support transactions (the “Restructuring Transactions”) that would result in a financial restructuring of the existing funded debt and existing equity interests of the Company Parties pursuant to plans to be filed in the Chapter 11 Cases (the “Chapter 11 Plan”) and proposed in the Dutch Scheme Proceedings (the “WHOA Plan”).
Superpriority Credit Agreement Amendment and Waiver
On May 30, 2023, the German Borrower, the Company and certain of the Company Parties, as guarantors, certain lenders party thereto (the “Consenting Superpriority Lenders”), the Superpriority Administrative Agent and the Superpriority Collateral Agent entered into the First Amendment and Waiver (the “Superpriority Credit Agreement Amendment and Waiver”) to waive certain Unmatured Defaults (as defined in the Superpriority Credit Agreement) and Defaults (as defined in the Superpriority Credit Agreement)defaults and events of default under the Superpriority Credit Agreement associated with the Restructuring Transactions; provided, that if the “Termination Date” (as defined in the Restructuring Support Agreement) occurs prior to the indefeasible repayment in full of all obligations under the Superpriority Credit Agreement, such waiver will automatically terminate. In addition, commencing on the effective date of the Superpriority Credit Agreement Amendment and Waiver and continuing until the occurrence of the “Termination Date” (as defined in the Restructuring Support Agreement), the Consenting Superpriority Lenders agreed to forbear from, and instruct the Superpriority Administrative Agent and the Superpriority Collateral Agent to forbear from, declaring due and payable the principal of and accrued and unpaid interest and fees in respect of the loans and/or other obligations under the Superpriority Credit Agreement and otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the Superpriority Credit Agreement, the other Loan Documents (as defined in the Superpriority Credit Agreement) and applicable law, solely to the extent that such remedies arise exclusively from such Unmature Defaults and Defaults.
The foregoing description of the Superpriority Credit Agreement Amendment and Waiver is a summary only and is qualified in its entirety by reference to the Superpriority Credit Agreement Amendment and Waiver, a copy of which is furnished as Exhibit 10.1 and is incorporated into this Item 1.01 by reference.
First Lien Term Loan Forbearance and Amendment Agreement
On May 30, 2023, the Company, certain of the Company Parties, as guarantors, certain lenders party thereto (the “Consenting First Lien Term Lenders”), the First Lien Administrative Agent and the First Lien Collateral Agent entered into the Forbearance and Amendment Agreement (the “First Lien Credit Agreement Forbearance and Amendment Agreement”).
Pursuant to the First Lien Credit Agreement Forbearance and Amendment Agreement, (i) commencing on the effective date of the First Lien Credit Agreement Forbearance and Amendment Agreement and continuing until the occurrence of the “Termination Date” (as defined in the Restructuring Support Agreement), the Consenting First Lien Term Lenders agreed to forbear from, and instruct the First Lien Administrative Agent and the First Lien Collateral Agent to forbear from, declaring due and payable the principal of and accrued and unpaid interest and fees in respect of the loans and/or other obligations under the First Lien Term Loan Credit Agreement and otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the First Lien Term Loan Credit Agreement, the other Loan Documents (as defined in the First Lien Term Loan Credit Agreement)
and applicable law, solely to the extent that such remedies arise exclusively from certain Unmatured Defaults (as defined in the First Lien Term Loan Credit Agreement) and Defaults (as defined in the First Lien Term Loan Credit Agreement) under the First Lien Term Loan Credit Agreement associated with the Restructuring Transactions and (ii) the definition of “Permitted Refinancing Indebtedness” in the First Lien Term Loan Credit Agreement was amended and restated to permit the refinancing of all obligations under the Superpriority Credit Agreement with borrowings under a debtor-in-possession financing.
The foregoing description of the First Lien Credit Agreement Forbearance and Amendment Agreement is a summary only and is qualified in its entirety by reference to the First Lien Credit Agreement Forbearance and Amendment Agreement, a copy of which is furnished as Exhibit 10.2 and is incorporated into this Item 1.01 by reference.
Guarantor Limited Release Agreements
On May 31, 2023, the Superpriority Administrative Agent, the Superpriority Collateral Agent, the Company and certain German-domiciled Company Parties entered into the Guarantor Limited Release Agreement (the “Superpriority Guarantor Limited Release Agreement”) to irrevocably and unconditionally release and discharge, effective upon the occurrence of the Effective Date (as defined below), the German-domiciled guarantors under the Superpriority Credit Agreement from the Foreign Guarantee Agreement (as defined in the Superpriority Credit Agreement), and any and all liabilities, undertakings and obligations created, evidenced, conferred or otherwise resulting thereunder (the “Superpriority Guarantor Release”). The “Effective Date” of the Superpriority Guarantor Limited Release Agreement is the first date on which (i) the Restructuring Support Agreement is in effect, (ii) the Chapter 11 Cases have commenced and (iii) the Release Conditions (as defined below) have been satisfied. The “Release Conditions” under the Superpriority Guarantor Limited Release Agreement are (i) (a) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Agreement, (b) lenders holding in excess of 66 2/3% of the outstanding loans under the First Lien Term Loan Credit Agreement and (c) noteholders holding in excess of 66 2/3% of the issued and outstanding 2025 Senior Notes must have determined in good faith that the release of such guarantees provided by the German-domiciled guarantors and the liens on assets of the German Borrower and the German-domiciled guarantors is necessary to avoid material value deterioration of the German Borrower and the German-domiciled guarantors and (ii) the German Borrower and the German-domiciled guarantors are concurrently released from their guarantee obligations under the First Lien Term Loan Credit Agreement and the 2025 Senior Notes and the liens on the assets of such entities securing the obligations under the First Lien Term Loan Credit Agreement and the 2025 Senior Notes are concurrently released.
Also on May 31, 2023, the First Lien Administrative Agent, the First Lien Collateral Agent, the Company and the certain German-domiciled Company Parties entered into the Guarantor Limited Release Agreement (the “First Lien Guarantor Limited Release Agreement” and, together with the Superpriority Guarantor Limited Release Agreement, the Guarantor Limited Release Agreements”) to irrevocably and unconditionally release and discharge, effective upon the occurrence of the Effective Date (as defined below), the German-domiciled guarantors under the First Lien Term Loan Credit Agreement from the Foreign Guarantee Agreement (as defined in the First Lien Term Loan Credit Agreement), and any and all liabilities, undertakings and obligations created, evidenced, conferred or otherwise resulting thereunder (the “First Lien Guarantor Release”). The “Effective Date” of the First Lien Guarantor Limited Release Agreement is the first date on which (i) the Restructuring Support Agreement is in effect, (ii) the Chapter 11 Cases have commenced and (iii) the Release Conditions (as defined below) have been satisfied. The “Release Conditions” under the First Lien Guarantor Limited Release Agreement are (i) (a) lenders holding in excess of 66 2/3% of the outstanding loans under the First Lien Term Loan Credit Agreement, (b) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Agreement and (c) noteholders holding in excess of 66 2/3% of the issued and outstanding 2025 Senior Notes must have determined in good faith that the release of such guarantees provided by the German-domiciled guarantors and the liens on assets of the German Borrower and the German-domiciled guarantors is necessary to avoid material value deterioration of the German Borrower and the German-domiciled guarantors and (ii) the German Borrower and the German-domiciled guarantors are concurrently released from their guarantee obligations under the Superpriority Credit Agreement and the 2025 Senior Notes and the liens on the assets of such entities securing the obligations under the Superpriority Credit Agreement and the 2025 Senior Notes are concurrently released.
The foregoing descriptions of the Guarantor Limited Release Agreements are summaries only and are qualified in their entirety by reference to the Guarantor Limited Release Agreements, copies of which are furnished as Exhibits 10.3 and 10.4 and are incorporated into this Item 1.01 by reference.
Security Release and Amendment Agreement
On May 31, 2023, the Company, certain of the Company Parties, as security providers, GLAS Americas LLC, as European collateral agent (the “European Collateral Agent”), and JPMorgan Chase Bank, N.A., as administrative agent, entered into the Security Release and Amendment Agreement (the “Security Release and Amendment Agreement”), pursuant to which, upon the occurrence of the Condition Precedent (as defined below), the European Collateral Agent and the other Secured Parties (as defined in the Security Release and Amendment Agreement) irrevocably and unconditionally waived all rights they have or may have against any of the German Security Providers (as defined in the Security Release and Amendment Agreement) under or pursuant to the German Security Agreements (as defined in the Security Release and Amendment Agreement) related to the obligations, liabilities and indemnities under or in connection with the Superpriority Credit Agreement, the First Lien Term Loan Credit Agreement, the 2025 Senior Notes and the 2L Notes. The “Condition Precedent” of the Security Release and Amendment Agreement are (i) the commencement of the Chapter 11 Cases, (ii) the effectiveness of the Restructuring Support Agreement and (iii) the satisfaction of the Release
Conditions (as defined below). The “Release Conditions” under the Security Release and Amendment Agreement are (i) (a) lenders holding 66 2/3% of the outstanding loans under the Superpriority Credit Agreement, (b) lenders holding 66 2/3% of the outstanding loans under the First Lien Term Loan Credit Agreement and (c) noteholders holding 66 2/3% in aggregate principal amount of the 2025 Senior Notes must have determined in good faith that the release of the guarantees provided by the German Security Providers and the liens on assets of the German Security Providers is necessary to avoid material value deterioration of the German Security Providers, (ii) the German Security Providers are concurrently released from their guarantee obligations under the Superpriority Credit Agreement, the First Lien Term Loan Credit Agreement and the 2025 Senior Notes and the liens on the assets of such entities securing the obligations under the Superpriority Credit Agreement, the First Lien Term Loan Credit Agreement and the 2025 Senior Notes are concurrently released.
The foregoing description of the Security Release and Amendment Agreement is a summary only and is qualified in its entirety by reference to the Security Release and Amendment Agreement, a copy of which is furnished as Exhibit 10.5 and is incorporated into this Item 1.01 by reference.
Release of German Guarantors Under 2025 Senior Notes
On May 31, 2023, beneficial owners of approximately 77.3% of the 2025 US Senior Notes outstanding as of May 17, 2023 delivered letters to U.S. Bank Trust Company, National Association, as trustee (the “2025 US Senior Notes Trustee”) under the Amended and Restated Senior Secured Notes Indenture, dated as of December 29, 2022 (the “2025 US Senior Notes Indenture”), by and among the Company, the guarantors party thereto, the 2025 US Senior Notes Trustee and GLAS Americas LLC, as notes collateral agent (the “2025 US Senior Notes Collateral Agent”), governing the 2025 US Senior Notes pursuant to which such beneficial owners, among other things:
| • | consented, pursuant to Sections 9.02(f) and 11.07(c) of the 2025 US Senior Notes Indenture, to release the guarantees provided by the German-domiciled guarantors of the 2025 Senior Notes and the liens on the assets of such entities, subject to the commencement of the Chapter 11 Cases and the substantially concurrent Superpriority Guarantor Release and First Lien Guarantor Release; |
| • | consented to the amendment to the definition of “Refinancing Indebtedness” in the 2025 US Senior Notes Indenture to permit the refinancing of term loan obligations under the Superpriority Credit Agreement with borrowings under a debtor-in-possession financing; and |
| • | agreed to forbear from, and instructed the 2025 US Senior Notes Trustee and the 2025 US Senior Notes Collateral Agent to forbear from, during the period commencing on (and including) May 31, 2023 and ending on the “Termination Date” (as defined in the Restructuring Support Agreement), declaring due and payable the principal of and accrued and unpaid interest and fees in respect of the 2025 US Senior Notes and/or any other obligations thereunder and otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the 2025 US Senior Notes, the 2025 US Senior Notes Indenture and applicable law, solely to the extent that such remedies arise exclusively from certain defaults and events of default under the 2025 US Senior Notes Indenture associated with the Restructuring Transactions. |
Also on May 31, 2023, beneficial owners of approximately 54.9% of the 2025 EUR Senior Notes outstanding as of May 17, 2023 delivered letters to U.S. Bank Trust Company, National Association, as trustee (the “2025 EUR Senior Notes Trustee”) under the Amended and Restated Senior Secured Notes Indenture, dated as of December 29, 2022 (the “2025 EUR Senior Notes Indenture”), by and among the Company, the guarantors party thereto, the 2025 EUR Senior Notes Trustee and GLAS Americas LLC, as notes collateral agent (the “2025 EUR Senior Notes Collateral Agent”), governing the 2025 EUR Senior Notes pursuant to which such beneficial owners, among other things:
| • | consented, pursuant to Sections 9.02(f) and 11.07(c) of the 2025 EUR Senior Notes Indenture, to release the guarantees provided by the German-domiciled guarantors of the 2025 Senior Notes and the liens on the assets of such entities, subject to the commencement of the Chapter 11 Cases and the substantially concurrent Superpriority Guarantor Release and First Lien Guarantor Release; |
| • | consented to the amendment to the definition of “Refinancing Indebtedness” in the 2025 EUR Senior Notes Indenture to permit the refinancing of term loan obligations under the Superpriority Credit Agreement with borrowings under a debtor-in-possession financing; and |
| • | agreed to forbear from, and instructed the 2025 EUR Senior Notes Trustee and the 2025 EUR Senior Notes Collateral Agent to forbear from, during the period commencing on (and including) May 31, 2023 and ending on the “Termination Date” (as defined in the Restructuring Support Agreement), declaring due and payable the principal of and accrued and unpaid interest and fees in respect of the 2025 EUR Senior Notes and/or any other obligations thereunder and otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the 2025 EUR Senior Notes, the 2025 EUR Senior Notes Indenture and applicable law, solely to the extent that such remedies arise exclusively from certain defaults and events of default under the 2025 EUR Senior Notes Indenture associated with the Restructuring Transactions. |
Also on May 31, 2023, beneficial owners of approximately 58.9% of the 2L Notes outstanding as of May 17, 2023 delivered letters to U.S. Bank Trust Company, National Association, as trustee (the “2L Notes Trustee”) under the Senior Secured PIK Toggle Notes Indenture, dated as of
December 29, 2022 (the “2L Notes Indenture”), by and among the Company, the guarantors party thereto, the 2L Notes Trustee and GLAS Americas LLC, as notes collateral agent (the “2L Notes Collateral Agent”), governing the 2L Notes pursuant to which such beneficial owners, among other things:
| • | consented to the amendment to the definition of “Refinancing Indebtedness” in the 2L Notes Indenture to permit the refinancing of term loan obligations under the Superpriority Credit Agreement with borrowings under a debtor-in-possession financing; and |
| • | agreed to forbear from, and instructed the 2L Notes Trustee and the 2L Notes Collateral Agent to forbear from, during the period commencing on (and including) May 31, 2023 and ending on the “Termination Date” (as defined in the Restructuring Support Agreement), declaring due and payable the principal of and accrued and unpaid interest and fees in respect of the 2L Notes and/or any other obligations thereunder and otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the 2L Notes, the 2L Notes Indenture and applicable law, solely to the extent that such remedies arise exclusively from certain defaults and events of default under the 2L Notes Indenture associated with the Restructuring Transactions. |
In addition, pursuant to Section 9.02(f) of the 2L Notes Indenture, guarantees provided by the German-domiciled guarantors of 2L Notes and the liens on the assets of such entities were released, upon the effectiveness of the Superpriority Guarantor Release and First Lien Guarantor Release.
Supplemental Indentures
On May 31, 2023, each of the 2025 US Senior Notes Indenture, the 2025 EUR Senior Notes Indenture and the 2L Notes Indenture were supplemented to amend and restate the definition of “Refinancing Indebtedness” in such indentures to permit the refinancing of term loan obligations under the Superpriority Credit Agreement with borrowings under a debtor-in-possession financing.
The foregoing description of the First Supplemental Indenture to the 2025 US Senior Notes Indenture is a summary only and is qualified in its entirety by reference to the First Supplemental Indenture to the 2025 US Senior Notes Indenture, a copy of which is furnished as Exhibit 10.6 and is incorporated into this Item 1.01 by reference. The foregoing description of the First Supplemental Indenture to the 2025 EUR Senior Notes Indenture is a summary only and is qualified in its entirety by reference to the First Supplemental Indenture to the 2025 EUR Senior Notes Indenture, a copy of which is furnished as Exhibit 10.7 and is incorporated into this Item 1.01 by reference. The foregoing description of the First Supplemental Indenture to the 2L Notes Indenture is a summary only and is qualified in its entirety by reference to the First Supplemental Indenture to the 2L Notes Indenture, a copy of which is furnished as Exhibit 10.8 and is incorporated into this Item 1.01 by reference.
| Item 1.03 | Bankruptcy or Receivership |
On June 1, 2023, the Debtors commenced the Chapter 11 Cases in the U.S. Bankruptcy Court and filed the prepackaged Chapter 11 Plan with the U.S. Bankruptcy Court. Additionally, on June 1, 2023, the Dutch Issuer filed a scheme of arrangement relating to certain the Dutch Scheme Companies and commenced the Dutch Scheme Proceedings under Dutch Restructuring Law in the Dutch Court.
On May 30, 2023, the Debtors and Dutch Scheme Companies commenced a solicitation to seek acceptance of the Chapter 11 Plan and WHOA Plan by certain of their creditors. The Debtors and Dutch Scheme Companies expect the solicitation period to end on or around June 28, 2023.
The Debtors have filed a motion with the U.S. Bankruptcy Court seeking joint administration of the Chapter 11 Cases under the caption In re: Diebold Holding Company, LLC, et al. The Debtors will continue to operate their businesses as “debtors-in-possession” under the jurisdiction of the U.S. Bankruptcy Court and in accordance with the applicable provisions of the U.S. Bankruptcy Code and orders of the U.S. Bankruptcy Court. The Chapter 11 Plan, the WHOA Plan and the requested first day relief anticipate that trade claimants who continue to work with the Debtors and the Dutch Scheme Companies on existing terms will be paid in full and in the ordinary course of business. All existing vendor contracts are expected to remain in place and be serviced in the ordinary course of business.
Additional information about the Chapter 11 Cases and the Dutch Scheme Proceedings may be obtained at https://cases.ra.kroll.com/dieboldnixdorf.
| Item 2.04. | Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement |
The filing of the Chapter 11 Cases and Dutch Scheme Proceedings described above in Item 1.03 constitutes an event of default that accelerated (or in the case of the Superpriority Credit Agreement, First Lien Term Loan Credit Agreement, 2025 US Senior Notes Indenture, 2025 Euro Senior Notes Indenture and 2L Notes Indenture, would have otherwise accelerated if not for the applicable forbearances and waivers executed by the Consenting Creditors) the Company’s obligations under the following debt instruments (the “Debt Instruments”):
| • | Asset-Based Revolving Credit and Guaranty Agreement, dated as of December 29, 2022, among the Company, certain of the other Company Parties from time to time party thereto, as borrowers and guarantors, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and GLAS Americas LLC, as European collateral agent; |
| • | Superpriority Credit Agreement; |
| • | First Lien Term Loan Credit Agreement; |
| • | Credit Agreement, dated as of November 23, 2015, by and among the Company, as borrower, certain of the other Company Parties from time to time party thereto, as subsidiary borrowers, the lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as administrative agent; |
| • | 2025 US Senior Notes Indenture; |
| • | 2025 Euro Senior Notes Indenture; |
| • | 2L Notes Indenture; and |
| • | Indenture, dated as of April 19, 2016, among the Company, the subsidiary guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee. |
The Debt Instruments provide that, as a result of the Chapter 11 Cases and Dutch Scheme Proceedings, the principal and interest due thereunder shall be immediately due and payable. Any efforts to enforce such payment obligations against the Debtors under the Debt Instruments are automatically stayed as a result of the commencement of the Chapter 11 Cases, and creditors’ rights of enforcement in respect of the Debt Instruments are subject to the applicable provisions of the U.S. Bankruptcy Code, Dutch Restructuring Law, and applicable forbearances and waivers executed by the Consenting Creditors.
In addition, the information set forth in Item 1.01 is hereby incorporated by reference into this Item 2.04.
| Item 8.01. | Other Events |
In connection with the filing of the Chapter 11 Cases, on June 1, 2023, the Company terminated, effective immediately, its previously announced public exchange offer (the “Exchange Offer”) with respect to the Company’s outstanding 8.50% Senior Notes due 2024 (144A CUSIP: 253651AA1; REG S CUSIP: U25316AA5; Registered CUSIP: 253651AC7) (the “2024 Senior Notes”). As a result of the termination of the Exchange Offer, none of the 2024 Senior Notes that have been tendered in the Exchange Offer will be accepted and no consideration will be paid or become payable to holders of the 2024 Senior Notes who have tendered their 2024 Senior Notes in the Exchange Offer. All the 2024 Senior Notes previously tendered and not withdrawn will be promptly returned or credited back to their respective holders.
FORWARD-LOOKING STATEMENTS
This Current Report on Form 8-K and the exhibits hereto contain statements that are not historical information and are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements give current expectations or forecasts of future events and are not guarantees of future performance. These forward-looking statements include, but are not limited to, projections, statements regarding the Company’s expected future performance (including expected results of operations), future financial condition, anticipated operating results, strategy plans, future liquidity and financial position.
Statements can generally be identified as forward looking because they include words such as “believes,” “anticipates,” “expects,” “intends,” “plans,” “will,” “estimates,” “potential,” “target,” “predict,” “project,” “seek,” and variations thereof or “could,” “should” or words of similar meaning. Statements that describe the Company’s future plans, objectives or goals are also forward-looking statements, which reflect the current views of the Company with respect to future events and are subject to assumptions, risks and uncertainties that could cause actual results to differ materially. Although the Company believes that these forward-looking statements are based upon reasonable assumptions regarding, among other things, the economy, its knowledge of its business, and key performance indicators that impact the Company, these forward-looking statements involve risks, uncertainties and other factors that may cause actual results to differ materially from those expressed in or implied by the forward-looking statements. The factors that may affect the Company’s results include, among others, the participation by the Company’s lenders and noteholders in the Restructuring Transactions, the ability to negotiate and execute definitive documentation with respect to the Restructuring Transactions, the receipt of consents required to consummate the Restructuring Transactions, satisfaction of any conditions in any such documentation, the availability of alternative transactions, the impact of publicity surrounding negotiations related to the Restructuring Support Agreement and related matters, risks and uncertainties relating to the Chapter 11 Cases and Dutch Scheme Proceedings, including but not limited to, the Company’s ability to obtain U.S. Bankruptcy Court approval with respect to motions in the Chapter 11 Cases and Dutch Court approval with respect to motions in the Dutch Scheme Proceedings, the effects of the Chapter 11 Cases and the Dutch Scheme Proceedings on the Company and on the interests of various constituents, U.S. Bankruptcy Court rulings in the Chapter 11 Cases and the outcome of the Chapter 11 Cases in general, Dutch Court rulings in the Dutch Scheme Proceedings and the outcome of the Dutch Scheme Proceedings in general, the length of time the Company will operate under the Chapter 11 Cases and Dutch Scheme Proceedings, risks associated with any third-party motions in the Chapter 11 Cases and Dutch Scheme Proceedings, the potential adverse effects of the Chapter 11 Cases and Dutch Scheme Proceedings on the Company’s liquidity or results of operations and increased legal and other professional costs necessary to execute the Company’s reorganization; finalization and receipt of the DIP Facility, the conditions to which the Company’s DIP Facility is subject and the risk that these conditions may not be satisfied for various reasons, including for reasons outside of the Company’s control; whether the Company will emerge, in whole or in part, from Chapter 11 Cases and Dutch Scheme Proceedings as a going concern; the consequences of the acceleration of the Company’s debt obligations; the trading price and volatility of the Company’s common stock, and the ability of the Company to
remain listed on the New York Stock Exchange, trading price and volatility of the Company’s indebtedness and other claims, and other factors included in the Company’s filings with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2022 and in other documents the Company files with the SEC.
Except to the extent required by applicable law or regulation, the Company undertakes no obligation to update these forward-looking statements to reflect future events or circumstances or to reflect the occurrence of unanticipated events. You should consider these factors carefully in evaluating forward-looking statements and are cautioned not to place undue reliance on such statements.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Diebold Nixdorf, Incorporated | ||||||
| Date: June 1, 2023 | By: | /s/ Jonathan B. Leiken | ||||
| Jonathan B. Leiken | ||||||
| Executive Vice President, Chief Legal Officer and Secretary | ||||||
Exhibit 10.1
EXECUTION VERSION
FIRST AMENDMENT AND WAIVER
THIS FIRST AMENDMENT AND WAIVER, dated as of May 30, 2023 (this “Amendment and Waiver”), is among DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Company”), DIEBOLD NIXDORF HOLDING GERMANY GMBH (the “Borrower”), each other Loan Party party hereto, the Lenders party hereto, GLAS USA LLC, as administrative agent (the “Administrative Agent”), and GLAS AMERICAS LLC, as collateral agent (the “Collateral Agent”), and amends that certain Credit Agreement, dated as of December 29, 2022, by and among the Company, the Borrower, the Lenders from time to time party thereto, the Administrative Agent and the Collateral Agent (as amended, restated, amended and restated, modified or supplemented from time to time prior to the date hereof, the “Existing Credit Agreement”, and as further amended and modified by this Amendment and Waiver, the “Credit Agreement”).
WHEREAS, on the date hereof, the Company, certain of the Company’s direct and indirect Subsidiaries party thereto, the Initial Consenting Creditors (as defined in the Restructuring Support Agreement (as defined below)) party thereto and the DIP Backstop Parties (as defined in the Restructuring Support Agreement) party thereto have entered into that certain Restructuring Support Agreement, dated as of May 30, 2023 (the “Restructuring Support Agreement”), which contemplates certain Restructuring Transactions (as defined therein); and
WHEREAS, in anticipation of the Restructuring Transactions, the Company, the Borrower and the other Loan Parties have requested that the Administrative Agent and the Lenders party hereto, constituting the Required Lenders under the Credit Agreement as of the date hereof (collectively, the “Consenting Lenders”), amend the Existing Credit Agreement and temporarily waive the Specified Defaults (as defined below) on the terms and conditions set forth herein, and the Consenting Lenders and the Administrative Agent have agreed to amend the Existing Credit Agreement and grant such temporary waivers, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreement, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement.
ARTICLE II
WAIVER AND FORBEARANCE
2.1. The Company has informed the Administrative Agent, the Collateral Agent and the Consenting Lenders that, but for this Amendment and Waiver, certain Unmatured Defaults and Defaults would result from the Restructuring Transactions under:
(i) Section 7.2 of the Credit Agreement as a result of failure to pay (A) principal of any Loan when due, (B) interest on any Loan or of any commitment or ticking fee when due, or (C) any other obligations under any of the Loan Documents when due;
(ii) Section 7.5 of the Credit Agreement as a result of (A) the failure by the Company or any of its Subsidiaries to pay when due any principal of, or premium or interest on (beyond any applicable grace period therefor) any Material Indebtedness, (B) default by the Company or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is governed, or the occurrence of any other event or condition, the effect of which causes, or permits the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity, or (C) Material Indebtedness of the Company or any of its Subsidiaries declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the stated maturity thereof;
(iii) Section 7.6 of the Credit Agreement as result of any of the following occurring with respect to the Company or certain of its Subsidiaries (A) voluntarily having an order for relief entered with respect to it under any existing or future Debtor Relief Law, (B) making an assignment for the benefit of creditors, (C) applying for, seeking, consenting to, or acquiescing in, the appointment of a receiver, interim receiver, monitor, administrator, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (D) instituting any proceeding seeking an order for relief under any existing or future Debtor Relief Law, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, administration, reorganization, moratorium, arrangement, adjustment or composition of it or its debts or seeking similar relief under any Debtor Relief Law or similar proceeding or failing to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (E) taking any corporate, company or other action to authorize or effect any of the foregoing actions set forth in the foregoing clauses (A)-(D), or (F) not paying, or admitting in writing its inability to pay, its debts generally as they become due;
(iv) Section 7.13 of the Credit Agreement as result of any Lien purported to be created on any material portion of the Collateral under any Security Document ceasing to be, or being asserting in writing by any Loan Party not to be, a valid and perfected Lien on such Collateral; and
(v) Section 7.14 of the Credit Agreement as result of the Credit Agreement, any Guaranty or any Security Document ceasing to be in full force and effect and valid, binding and enforceable in accordance with its terms, or any Loan Party so stating in writing (collectively, clauses (i)-(v), the “Specified Defaults”).
2.2. Commencing on the Effective Date (as defined below), the Administrative Agent and the Collateral Agent (each acting at the direction of the Consenting Lenders pursuant to this Amendment and Waiver) and the Consenting Lenders hereby agree to temporarily waive the Specified Defaults. It being understood and agreed that during such waiver period, none of the Specified Defaults shall constitute an Unmatured Default or Default under the Credit Agreement and no event giving rise to any Specified Default shall result in the acceleration of the Obligations under Section 8.1 of the Credit Agreement or any other provision of any Loan Document.
2.3. If the “Termination Date” (as defined in the Restructuring Support Agreement) occurs at any time prior to the indefeasible repayment in full of all Obligations, the waiver of the Specified Defaults set forth in Section 2.1 above shall automatically terminate and the Company, the Borrower and the other Loan Parties shall be required to comply with the terms of the Credit Agreement as if the waiver in this Article II shall have never occurred.
3
2.4. Commencing on the Effective Date and continuing until the occurrence of the Termination Date (as defined in the Restructuring Support Agreement), the Consenting Lenders hereby agree to forbear from, and instruct the Administrative Agent and the Collateral Agent to forbear from, (x) declaring due and payable, or both, the principal of and accrued and unpaid interest and fees in respect of, the Loans and/or any other Obligations, and (y) otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the Credit Agreement, the other Loan Documents and applicable law, solely to the extent that such remedies arise exclusively from an Unmatured Default or Default. Upon the occurrence of the Termination Date, the agreement of the Consenting Lenders under this Section 2.4 to forbear from exercising their respective rights and remedies with respect to an Unmatured Default and a Default shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which are waived by the Company, the Borrower and each other Loan Party. The Company, the Borrower and the other Loan Parties agree that the Administrative Agent, the Collateral Agent or the Consenting Lenders may at any time following the occurrence of the Termination Date proceed to exercise any and all of their respective rights and remedies under any or all of the Credit Agreement, the other Loan Documents and/or applicable law, including their respective rights and remedies with respect to an Unmatured Default or a Default, in each case, subject to the terms and conditions set forth therein.
2.5. This Amendment and Waiver shall not constitute a waiver of any Unmatured Default or Default that has occurred and is continuing, or any rights or remedies of the Lenders under the Loan Documents in connection therewith, except as expressly stated in this Section 2.
ARTICLE III
REPRESENTATIONS
3.1. Each Loan Party party hereto represents and warrants to the Administrative Agent and the Consenting Lenders on the date hereof, that:
(i) each Loan Party party hereto has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Amendment and Waiver and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and Waiver;
(ii) each Loan Party party hereto has duly executed and delivered this Amendment and Waiver, and this Amendment and Waiver constitutes the legal, valid, and binding obligation of such Loan Party enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity; and
(iii) neither the execution and delivery by the Loan Parties of this Amendment and Waiver, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate the constitutive documents of any Loan Party party hereto.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
This Amendment and Waiver shall become effective on the first date (the “Effective Date”) on which each of the following conditions have been satisfied:
4.1. this Amendment and Waiver shall have been duly executed and delivered by the Company, the Borrower, each of the other Loan Parties, the Administrative Agent, the Collateral Agent and the Consenting Lenders (constituting the Required Lenders);
4
4.2. all representations and warranties made by any Loan Party contained herein are true and correct in all material respects; and
4.3. the Restructuring Support Agreement shall be in full force and effect.
ARTICLE V
MISCELLANEOUS
5.1. On and after the date hereof, references in the Credit Agreement or in any other Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby and as further amended, restated, modified or supplemented from time to time. This Amendment and Waiver shall constitute a Loan Document.
5.2. Subject to the Interim DIP Order and Final DIP Order (each as defined in the Restructuring Support Agreement), the Company, the Borrower and the other Loan Parties agree to pay all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent and the Collateral Agent (including the reasonable fees, charges and disbursements of White & Case LLP, as counsel to the Administrative Agent and the Collateral Agent), (ii) the Consenting Lenders (including the reasonable fees, charges and disbursements of (A) Davis Polk & Wardwell LLP, as counsel to the Consenting Lenders, (ii) Houlihan Lokey, Inc., as financial advisor to the Consenting Lenders and (iii) any local counsels to the Consenting Lenders), in each case, in connection with the preparation, execution and delivery of this Amendment and Waiver, which such amounts, for the avoidance of doubt, shall constitute Obligations under the Credit Agreement and the other Loan Documents.
5.3. Except as expressly amended hereby, the Company, the Borrower and the other Loan Parties agree that the Credit Agreement and the other Loan Documents are ratified and confirmed 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. Except as expressly set forth herein, the execution, delivery and effectiveness of this Amendment and Waiver shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. Nothing herein shall be deemed to entitle the Company, the Borrower or the other Loan Parties to any future consent to, or waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment and Waiver shall not constitute a novation of any Obligations.
5.4. This Amendment and Waiver may be executed in any number of separate original counterparts (or telecopied counterparts with original execution copy to follow) and by the different parties on separate counterparts, each of which shall be deemed to be an original, but all of such counterparts shall together constitute one agreement. Delivery of an executed counterpart of a signature page to this Amendment and Waiver by telecopy or PDF shall be effective as delivery of a manually executed counterpart of this Amendment and Waiver. For the avoidance of doubt, the words “execution,” “signed,” “signature,” and words of like import in this Amendment and Waiver shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
5
5.5. THIS AMENDMENT AND WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions contained in Section 16.2 of the Credit Agreement (Waiver of Jury Trial) and Section 16.3 of the Credit Agreement (Submission to Jurisdiction; Waivers) are incorporated herein by reference, mutatis mutandis, to the same extent as if reproduced herein in their entirety.
5.6. Any provision in this Amendment and Waiver that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Amendment and Waiver are declared to be severable.
5.7. The Administrative Agent and the Collateral Agent are entering into this Amendment and Waiver solely in their respective capacities as Administrative Agent and the Collateral Agent under the Credit Agreement and pursuant to the instructions of the Consenting Lenders. The Borrower, the Company, each other Loan Party and each Consenting Lender (a) confirms that this Amendment and Waiver imposes no duty on the Administrative Agent and the Collateral Agent to take any action or to exercise any of the powers granted to it (other than as expressly set forth herein) and (b) all rights, protections, indemnities and benefits granted to the Administrative Agent and the Collateral Agent in the Loan Documents are hereby reaffirmed with respect to each of their actions taken pursuant to this Amendment and Waiver and incorporated as if fully set forth in this Amendment and Waiver.
[SIGNATURE PAGES FOLLOW]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.
| DIEBOLD NIXDORF, INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Executive Vice President, Chief Legal Officer & Corporate Secretary | ||
| DIEBOLD NIXDORF HOLDING GERMANY GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD GLOBAL FINANCE CORPORATION | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SST HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
[Signature Page to First Amendment and Waiver]
| GRIFFIN TECHNOLOGY INCORPORATED |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: President |
| DIEBOLD SELF-SERVICE SYSTEMS |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: President |
| DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: President |
| DIEBOLD NIXDORF (UK) LIMITED |
| /s/ Paul Young |
| Name: Paul Young |
| Title: Director |
| DIEBOLD NIXDORF CANADA, LIMITED |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| DIEBOLD CANADA HOLDING COMPANY INC. |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
[Signature Page to First Amendment and Waiver]
| DIEBOLD NIXDORF GLOBAL HOLDING, B.V. |
| /s/ Elizabeth Christine Radigan |
| Name: Elizabeth Christine Radigan |
| Title: Managing Director A |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director B |
| DIEBOLD NIXDORF BV |
| /s/ Nancy De Troyer |
| Name: Nancy De Troyer |
| Title: Managing Director |
| DIEBOLD NIXDORF B.V. |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director |
| /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| DIEBOLD NIXDORF DUTCH HOLDING B.V. |
| /s/ Elizabeth Christine Radigan |
| Name: Elizabeth Christine Radigan |
| Title: Managing Director A |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director B |
[Signature Page to First Amendment and Waiver]
| DIEBOLD NIXDORF SOFTWARE PARTNER B.V. | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SOFTWARE C.V.
By: Diebold Nixdorf Software Partner B.V., its | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.A.S. | ||
| By: | /s/ Octavio Marquez | |
| Name: Octavio Marquez | ||
| Title: President | ||
| DIEBOLD NIXDORF S.R.L. | ||
| By: | /s/ Ewa Porebska | |
| Name: Ewa Porebska | ||
| Title: Director | ||
| Place of Execution: | ||
[Signature Page to First Amendment and Waiver]
| DIEBOLD NIXDORF SP. Z O. O. |
| /s/ Stanislaz Zrcek |
| Name: Stanislav Zrcek |
| Title: Member of the Management Board |
| DIEBOLD NIXDORF BPO SP. Z O. O. |
| /s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Director |
| DIEBOLD NIXDORF S.L. |
| /s/ Antonio Albarrán Rodriguez |
| Name: Antonio Albarrán Rodriguez |
| Title: Director |
| DIEBOLD NIXDORF AB |
| /s/ René Lauxtermann |
| Name: René Lauxtermann |
| Title: Director |
[Signature Page to First Amendment and Waiver]
| GLAS USA LLC, as Administrative Agent | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
| GLAS AMERICAS LLC, as Collateral Agent | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
[Signature Page to First Amendment and Waiver]
Additional signature pages have been redacted
[Lender Signature Pages]
[Signature Page to First Amendment and Waiver]
Exhibit 10.2
EXECUTION VERSION
FORBEARANCE AND AMENDMENT AGREEMENT
This FORBEARANCE AND AMENDMENT AGREEMENT, dated as of May 30, 2023 (this “Forbearance and Amendment”), is entered into among DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Company”), each other Loan Party party hereto, the Lenders party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”), and GLAS AMERICAS LLC, as collateral agent (the “Collateral Agent”) and amends that certain Credit Agreement, dated as of December 29, 2022, by and among the Company, the Lenders from time to time party thereto, the Administrative Agent and the Collateral Agent (as amended, restated, amended and restated, modified or supplemented from time to time prior to the date hereof, the “Existing Credit Agreement”, and as further amended and modified by this Forbearance and Amendment, the “Credit Agreement”).
RECITALS:
WHEREAS, the Company and the other Loan Parties have requested, and the Lenders party hereto, constituting the Supermajority Lenders under the Credit Agreement as of the date hereof (collectively, the “Consenting Lenders”), have agreed, subject to the terms and conditions set forth herein, to forbear from, and instruct the Administrative Agent and the Collateral Agent to forbear from, during the Forbearance Period (as defined below), (x) declaring due and payable, or both, the principal of, and accrued and unpaid interest and fees in respect of, the Loans and/or any other Obligations and (y) otherwise exercising any rights, remedies, powers, privileges and defenses under the Credit Agreement, the other Loan Documents and applicable law, with respect to any Unmatured Default or Default.
WHEREAS, the Company, the Borrower and the other Loan Parties have requested that the Administrative Agent and the Consenting Lenders, amend the Existing Credit Agreement on the terms and conditions set forth herein, and the Consenting Lenders and the Administrative Agent (acting at the direction of the Consenting Lenders) have agreed to amend the Existing Credit Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements, promises and covenants set forth below, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement. For purposes of this Forbearance and Amendment, the following terms shall have the following meanings:
(a) “Forbearance Period” shall mean the period commencing on (and including) the Effective Date (as defined below) and ending on the Forbearance Termination Date.
(b) “Forbearance Termination Date” means the Termination Date (as defined in the Restructuring Support Agreement).
(c) “Restructuring Support Agreement” means that certain Restructuring Support Agreement, dated as of May 30, 2023, by and among the Company, certain of the Company’s direct and indirect Subsidiaries party thereto, the Initial Consenting Creditors (as defined in the Restructuring Support Agreement) party thereto and the DIP Backstop Parties (as defined in the Restructuring Support Agreement) party thereto.
2
2. Agreements and Acknowledgements. Each Loan Party acknowledges and agrees that as of the Effective Date, the (i) outstanding principal amounts of the Indebtedness in respect of the Term Loans are €90,265,282.04 and $533,465,152.68 and (ii) aggregate amount of accrued and unpaid interest on the Term Loans under the Credit Agreement are €1,992,265.84 and $14,130,279.73. Each Loan Party acknowledges and agrees that such Obligations, together with all other outstanding Obligations owed or owing pursuant to the terms of the Loan Documents, including interest, fees, expenses and other charges, are validly owed or owing thereunder, and each Loan Party is jointly and severally obligated with respect thereto (the foregoing amounts in clauses (i) and (ii) are hereafter collectively referred to as the “Current Outstanding Obligations”). The foregoing amounts do not include other fees, expenses (including professional fees and expenses), and other Obligations and amounts which are chargeable or otherwise reimbursable under the Credit Agreement and the other Loan Documents or which are payable pursuant to this Forbearance and Amendment. As of the Effective Date, neither the Company nor any other Loan Party has any rights of offset, defenses, claims or counterclaims with respect to the Current Outstanding Obligations or any of the other Obligations or any payment obligation under this Forbearance and Amendment, and each Loan Party is jointly and severally obligated with respect thereto, in each case, in accordance with the terms of the applicable Loan Documents and, with respect to payment obligations hereunder, this Forbearance and Amendment.
3. Forbearance. Subject to the satisfaction of the terms and conditions set forth in Section 5 of this Forbearance and Amendment, the Consenting Lenders hereby agree to forbear from, and instruct the Administrative Agent and the Collateral Agent to forbear from, during the Forbearance Period, (x) declaring due and payable, or both, the principal of and accrued and unpaid interest and fees in respect of, the Loans and/or any other Obligations and (y) otherwise exercising any of their other respective rights, remedies, powers, privileges and defenses under the Credit Agreement, the other Loan Documents and applicable law, solely to the extent that such remedies arise exclusively from an Unmatured Default or a Default. Upon the expiration or termination of the Forbearance Period in accordance with the terms of this Forbearance and Amendment, the agreement of the Consenting Lenders hereunder to forbear from exercising their respective rights and remedies with respect to an Unmatured Default or a Default shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which are waived by the Company and each other Loan Party. The Company and the other Loan Parties agree that the Administrative Agent, the Collateral Agent or the Consenting Lenders may at any time following the expiration or termination of the Forbearance Period in accordance with the terms of this Forbearance and Amendment proceed to exercise any and all of their respective rights and remedies under any or all of the Credit Agreement, the other Loan Documents and/or applicable law, including their respective rights and remedies with respect to an Unmatured Default or a Default, in each case, subject to the terms and conditions set forth therein.
4. Amendments to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 5 hereof, each of the parties hereto agrees that the Existing Credit Agreement shall be amended to amend and restate in its entirety the definition of “Permitted Refinancing Indebtedness” as set forth below:
3
(a) ““Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the original principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon, any committed or undrawn amounts and underwriting discounts, defeasance costs, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) the final maturity date and weighted average life of such Permitted Refinancing Indebtedness is no earlier than the final maturity date and then remaining weighted average life of the Indebtedness being Refinanced, (c) if the original Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole, (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Indebtedness being Refinanced, (e) if the Indebtedness being Refinanced is (or would have been required to be) secured (whether senior, equally and ratably with, or junior to, the Obligations or otherwise), such Permitted Refinancing Indebtedness may be secured by a Lien on the same property that secures the Indebtedness that is being Refinanced on terms no less favorable (including as to priority of such Lien), taken as a whole, to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced, and to the extent the Obligations are secured by such property, shall be subject to an applicable Intercreditor Agreement in form and substance substantially the same as the Intercreditor Agreement to which the Indebtedness being Refinanced is subject or reasonably acceptable to the Administrative Agent and the Collateral Agent (acting at the direction of the Required Lenders) and (f) if the Indebtedness being Refinanced is unsecured, such Permitted Refinancing Indebtedness shall be unsecured; provided, however, the foregoing requirements of clauses (a) through (f) above shall not apply to any Indebtedness incurred to Refinance the Superpriority Term Loan Facility pursuant a debtor-in-possession financing under applicable Debtor Relief Laws, which any such refinancing is expressly deemed “Permitted Refinancing Indebtedness” and permitted hereunder.”
5. Effectiveness of Forbearance and Amendment. This Forbearance and Amendment shall become effective on the date (such date the “Effective Date”) that each of the following conditions precedent are satisfied or waived:
(a) the execution and delivery of this Forbearance and Amendment by the Company, the Consenting Lenders (constituting the Supermajority Lenders), the Administrative Agent and the Collateral Agent; and
(b) the Restructuring Support Agreement shall be in full force and effect.
4
6. Representations and Warranties. To induce the Consenting Lenders to enter into this Forbearance and Amendment, the Company and the other Loan Parties party hereto represent and warrant that, as of the Effective Date:
(a) the Company and each other Loan Party party hereto has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Forbearance and Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Forbearance and Amendment; and
(b) the Company and each other Loan Party party hereto has duly executed and delivered this Forbearance and Amendment, and this Forbearance and Amendment constitutes the legal, valid, and binding obligation of such Loan Party enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
7. Reference to and Effect on Loan Documents.
(a) Ratification. Each Loan Party party hereto hereby expressly acknowledges and agrees that (i) all of the terms and conditions of, and their continued obligations and liability under, the Credit Agreement and the other Loan Documents and (ii) all guarantees, collateral, security interests, liens heretofore or hereafter granted to the Agents, for the benefit of the Lenders, under the Credit Agreement and all other Loan Documents are hereby ratified and confirmed and continue unchanged and in full force and effect.
(b) No Waiver. Except as expressly set forth herein, neither the execution, delivery and effectiveness of this Forbearance and Amendment shall, directly or indirectly, operate as a waiver of any right, power or remedy of the Administrative Agent, the Collateral Agent or the Lenders under the Credit Agreement or any of the other Loan Documents or a waiver of any Unmatured Default or Default. No course of dealing or any passage of time on account of the Forbearance Period shall be considered or used as a basis for asserting an untimely exercise of any such party’s rights, for altering any Obligation of the Company or any other Person or any right, privilege or remedy of the Administrative Agent, the Collateral Agent or the Lenders under the Credit Agreement or any other Loan Document, or to otherwise prejudice any such right, power, or remedy. The Loan Parties party hereto expressly acknowledge and agree that there has not been, and this Forbearance and Amendment does not constitute or establish, a novation with respect to the Credit Agreement or any of the other Loan Documents.
(c) Loan Document. On and after the Effective Date, this Forbearance and Amendment shall constitute a “Loan Document” as defined under the Credit Agreement.
(d) Each Loan Party hereto hereby acknowledges and agrees that the administrative agent, collateral agent or other similar agent for the lenders providing any debtor-in-possession financing under applicable Debtor Relief Laws, which Refinances the Superpriority Term Loan Facility shall be, upon such refinancing, a “First Priority Representative” under, and as defined in, the Multi Lien Intercreditor Agreement and such Permitted Refinancing Indebtedness shall constitute “First Priority Obligations” under, and as defined in, the Multi Lien Intercreditor Agreement.
5
8. Miscellaneous.
(a) Successors and Assigns. This Forbearance and Amendment shall be binding on and shall inure to the benefit of the Company, the other Loan Parties and the Lenders and their respective successors and assigns as set forth in the Loan Documents.
(b) Entire Agreement. This Forbearance and Amendment and the Loan Documents, as amended hereby, constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all other understandings, oral or written, with respect to the subject matter hereof.
(c) Fees and Expenses. Subject to the Interim DIP Order and Final DIP Order (each as defined in the Restructuring Support Agreement), the Company and the other Loan Parties agree to pay all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent (including the reasonable fees, charges and disbursements of outside counsel to the Administrative Agent), (ii) the Collateral Agent (including the reasonable fees, charges and disbursements of White & Case LLP, as counsel to the Collateral Agent) and (iii) the Consenting Lenders (including the reasonable fees, charges and disbursements of (A) Davis Polk & Wardwell LLP, as counsel to the Consenting Lenders, (B) Houlihan Lokey, Inc., as financial advisor to the Consenting Lenders and (C) any local counsels to the Consenting Lenders), in each case, in connection with the preparation, execution and delivery of this Forbearance and Amendment, which amounts, for the avoidance of doubt, shall constitute Obligations under the Credit Agreement and the other Loan Documents.
(d) Headings. Section headings in this Forbearance and Amendment are included herein for convenience of reference only and shall not constitute a part of this Forbearance and Amendment for any other purpose.
(e) Severability. Wherever possible, each provision of this Forbearance and Amendment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Forbearance and Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Forbearance and Amendment.
(f) Counterparts. This Forbearance and Amendment may be executed in any number of separate original counterparts (or telecopied counterparts with original execution copy to follow) and by the different parties on separate counterparts, each of which shall be deemed to be an original, but all of such counterparts shall together constitute one agreement. Delivery of an executed counterpart of a signature page to this Forbearance and Amendment by telecopy or PDF shall be effective as delivery of a manually executed counterpart of this Forbearance and Amendment. For the avoidance of doubt, the words “execution,” “signed,” “signature,” and words of like import in this Forbearance and Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
6
(g) Incorporation of Credit Agreement Provisions. THIS FORBEARANCE AND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions contained in Section 16.2 of the Credit Agreement (Waiver of Jury Trial) and Section 16.3 of the Credit Agreement (Submission to Jurisdiction; Waivers) are incorporated herein by reference, mutatis mutandis, to the same extent as if reproduced herein in their entirety.
(h) The Administrative Agent and the Collateral Agent are entering into this Forbearance and Amendment solely in their respective capacities as Administrative Agent and Collateral Agent under the Credit Agreement and pursuant to the instructions of the Consenting Lenders. The Company, each Consenting Lender and each other Loan Party party hereto confirms that (a) this Forbearance and Amendment imposes no duty on the Administrative Agent or Collateral Agent, as applicable, to take any action or to exercise any of the powers granted to it (other than as expressly set forth herein) and (b) all rights, protections, indemnities and benefits granted to the Administrative Agent or the Collateral Agent, as applicable, in the Loan Documents are hereby reaffirmed with respect to their respective actions taken pursuant to this Forbearance and Amendment and incorporated as if fully set forth in this Forbearance and Amendment.
9. Release.
(a) In consideration of the agreements of the Lenders, the Administrative Agent and the Collateral Agent contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and each other Loan Party, on behalf of itself and its successors and assigns, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Lenders, the Administrative Agent and the Collateral Agent, and each of their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (each Lender, the Administrative Agent, the Collateral Agent and all such other Persons being hereinafter referred to collectively as the “Releasees”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which the Company and each other Loan Party or any of their respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever in relation to, or in any way in connection with any of the Credit Agreement, any of the other Loan Documents, this Forbearance and Amendment or transactions thereunder or related thereto which arises at any time on or prior to the date of this Forbearance and Amendment.
7
(b) The Company each other Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(c) The Company each other Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
(d) Notwithstanding anything to the contrary contained herein, in the event of a conflict between the releases set forth in this Section 9 and any release contained in the Restructuring Support Agreement or as part of the transactions contemplated thereby, the Restructuring Support Agreement shall control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
8
IN WITNESS WHEREOF, the parties hereto have duly executed this Forbearance and Amendment Agreement as of the date first above written.
| DIEBOLD NIXDORF, INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Executive Vice President, Chief Legal Officer & Corporate Secretary | ||
| DIEBOLD GLOBAL FINANCE CORPORATION | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SST HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| GRIFFIN TECHNOLOGY INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
Signature Page to Forbearance and Amendment Agreement
| DIEBOLD SELF-SERVICE SYSTEMS |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: President |
| DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: President |
| DIEBOLD NIXDORF (UK) LIMITED |
| /s/ Paul Young |
| Name: Paul Young |
| Title: Director |
| DIEBOLD NIXDORF CANADA, LIMITED |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| DIEBOLD CANADA HOLDING COMPANY INC. |
| /s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| DIEBOLD NIXDORF BV |
| /s/ Nancy De Troyer |
| Name: Nancy De Troyer |
| Title: Managing Director |
Signature Page to Forbearance and Amendment Agreement
| DIEBOLD NIXDORF GLOBAL HOLDING, B.V. |
| /s/ Elizabeth Christine Radigan |
| Name: Elizabeth Christine Radigan |
| Title: Managing Director A |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director B |
| DIEBOLD NIXDORF B.V. |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director |
| /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| DIEBOLD NIXDORF DUTCH HOLDING B.V. |
| /s/ Elizabeth Christine Radigan |
| Name: Elizabeth Christine Radigan |
| Title: Managing Director A |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director B |
| DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
| /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
Signature Page to Forbearance and Amendment Agreement
| DIEBOLD NIXDORF SOFTWARE C.V.
By: Diebold Nixdorf Software Partner B.V., |
| /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
| /s/ Hendrik Roelof Schouten |
| Name: Hendrik Roelof Schouten |
| Title: Managing Director |
| DIEBOLD NIXDORF S.A.S. |
| /s/ Octavio Marquez |
| Name: Octavio Marquez |
| Title: President |
| DIEBOLD NIXDORF S.R.L. |
| /s/ Ewa Porebska |
| Name: Ewa Porebska |
| Title: Director |
| Place of Execution: |
| DIEBOLD NIXDORF SP. Z O. O. |
| /s/ Stanislav Zrcek |
| Name: Stanislav Zrcek |
| Title: Member of the Management Board |
Signature Page to Forbearance and Amendment Agreement
| DIEBOLD NIXDORF BPO SP. Z O. O. | ||
| By: | /s/ Adrian Gawrys | |
| Name: Adrian Gawrys | ||
| Title: Director | ||
| DIEBOLD NIXDORF S.L. | ||
| By: | /s/ Antonio Albarrán Rodriguez | |
| Name: Antonio Albarrán Rodriguez | ||
| Title: Director | ||
| DIEBOLD NIXDORF AB | ||
| By: | /s/ René Lauxtermann | |
| Name: René Lauxtermann | ||
| Title: Director | ||
Signature Page to Forbearance and Amendment Agreement
| GLAS AMERICAS LLC, as Collateral Agent | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
Signature Page to Forbearance and Amendment Agreement
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
| By: | /s/ Kevin Podwika | |
| Name: Kevin Podwika | ||
| Title: Authorized Officer | ||
Signature Page to Forbearance and Amendment Agreement
Additional signature pages have been redacted
[Lender Signature Pages]
Signature Page to Forbearance and Amendment Agreement
Exhibit 10.3
Execution Version
GUARANTOR LIMITED RELEASE AGREEMENT
THIS GUARANTOR LIMITED RELEASE AGREEMENT (this “Agreement”) is made as of May 31, 2023, by GLAS USA LLC, as administrative agent for the Lenders (in such capacity “Administrative Agent”) and GLAS Americas LLC, as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), with respect to the Foreign Guarantors listed on Schedule 1 hereto (the “German Guarantors”) party to that certain Foreign Guarantee Agreement, dated as of December 29, 2022 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Foreign Guarantee Agreement”), made by each of the Foreign Guarantors (such Foreign Guarantors other than the German Guarantors being referred to herein as the “Non-German Foreign Guarantors”) in favor of the Secured Parties. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings ascribed to such terms in the Foreign Guarantee Agreement.
RECITALS
WHEREAS, the Foreign Guarantee Agreement was entered into in connection with that certain Credit Agreement, dated as of December 29, 2022 (as it may be amended, restated, supplemented or modified from time to time, and together with any agreement executed in replacement therefor or otherwise refinancing such credit agreement, the “Credit Agreement”), among Diebold Nixdorf Holding Germany GMBH, as borrower (the “Borrower”), Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Administrative Agent, the Collateral Agent and the Lenders;
WHEREAS, Section 8.2.1(c)(ii) of the Credit Agreement provides that in immediate contemplation, or following commencement, of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by the German-domiciled Guarantors and the Liens on assets of such entities and the Liens on assets of the Borrower may be released with the consent of the Supermajority Lenders, solely in the event that (x) (i) the Supermajority Lenders, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the New Term Loans, as defined in the Credit Agreement (the “Supermajority New Term Lenders”), and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes (the “Supermajority 2025 Notes Holders”) determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the Borrower and the German-domiciled Guarantors (collectively, the “Release Consents”) and (y) such Guarantors and the Borrower are concurrently released from their guarantee obligations under the New Term Loans and the 2025 Notes and the Liens on the assets of such entities securing the New Term Loans and the 2025 Notes are concurrently released (clauses (x) and (y) above referred to herein, collectively, as the “Release Conditions”);
WHEREAS, the Company entered into that certain Restructuring Support Agreement, dated as of May 30, 2023 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “RSA”) by and among the Company, certain of its Subsidiaries listed on the signature pages there to and the Consenting Creditors (as defined therein);
2
WHEREAS, pursuant to the RSA, the Company, any Company Party (as defined in the RSA) or any Affiliate thereof (as defined in the RSA) may file the Chapter 11 Cases (as defined in the RSA);
WHEREAS, pursuant to the RSA, (a) the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders have provided the Release Consents, (b) the German Guarantors and the Borrower will, concurrently with the effectiveness of this Agreement, be released from their guarantee obligations under the New Term Loans and the 2025 Notes, (c) the Liens on the assets of the German Guarantors and the Borrower securing the Obligations, the New Term Loans and the 2025 Notes will, concurrently with the effectiveness of this Agreement, be released and (d) the Supermajority Lenders irrevocably authorized and directed the Administrative Agent and the Collateral Agent to enter into this Agreement; and
WHEREAS, the Administrative Agent and the Collateral Agent are entering into this Agreement at the direction of the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders to give effect to the release of the Borrower and the German Guarantors from the Foreign Guarantee Agreement immediately and automatically upon the commencement of the Chapter 11 Cases on the Petition Date (each as defined in the RSA); it being understood and agreed that the effectiveness of this Agreement and the releases provided for herein are subject to, and conditioned upon, the occurrence of the Effective Date (as defined below);
NOW, THEREFORE, for good and valuable consideration, the receipt of which is acknowledged and accepted, the parties hereby agree as follows:
AGREEMENT
1. Recitals. Each German Guarantor acknowledges the accuracy of the Recitals hereto.
2. Release of German Guarantors. The Administrative Agent and the Collateral Agent, acting at the direction of the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders, without recourse or warranty, express or implied by the Administrative Agent or the Collateral Agent, hereby irrevocably and unconditionally release and discharge, effective upon the occurrence of the Effective Date (as defined below), the German Guarantors from the Foreign Guarantee Agreement, and any and all liabilities, undertakings and obligations created, evidenced, conferred or otherwise resulting thereunder (“Release of German Guarantors”); provided, however, this release shall not apply to the Non-German Foreign Guarantors and the Non-German Foreign Guarantors shall remain liable and obligated under the Foreign Guarantee Agreement. For the avoidance of doubt, the Release of German Guarantors does not affect, impair or reduce the obligations of any other party under the Foreign Guarantee Agreement.
3. Effectiveness of Release. The Supermajority Lenders have agreed pursuant to the RSA that this Agreement shall take effect and the Release of German Guarantors under this Agreement shall occur automatically and without any further action by any Person on the first date on which the following conditions have been satisfied: (i) the RSA shall be in effect, (ii) the Chapter 11 Cases shall have commenced and the Petition Date shall have occurred and (iii) the Release Conditions shall have been satisfied (such date, the “Effective Date”). It being understood and agreed that if the RSA is terminated prior to the Petition Date, this Agreement shall immediately and automatically terminate and shall have no further force or effect.
3
4. Reaffirmation of Foreign Guarantee Agreement. Except for the Release of the German Guarantors, the Foreign Guarantee Agreement shall remain unchanged and in full force and effect. No amendment, consent or waiver by the Administrative Agent, the Collateral Agent or any Lender under the Foreign Guarantee Agreement, the Credit Agreement or the Security Documents (as defined in the Credit Agreement) is granted or intended except for the Release of German Guarantors expressly set forth herein (subject to the limitations set forth herein), and the Administrative Agent, the Collateral Agent and each Lender requires strict compliance with the terms of the Foreign Guarantee Agreement, Credit Agreement and Security Documents in all other respects.
5. Further Assurances. The Administrative Agent or Collateral Agent, as the case may be, shall at the reasonable written request of the Company in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent (and the direction of the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders (as applicable)), and at the Company’s sole cost and expense, execute and deliver all further instruments and documents, and take any other actions in each case as may be necessary in order to give effect to the Release of German Guarantors contained in this Agreement. The Administrative Agent or Collateral Agent (in each case, at the direction of the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders (as applicable)), as the case may be, hereby authorizes the Borrower and the German Guarantors or any designee of the Borrower or any such German Guarantor to, at any time on and after the Effective Date, prepare or file all such documents and other releases, discharges and related filings and to take all actions, in each case, as may be necessary to effectuate the Release of German Guarantors herein referred to. This Agreement is a Loan Document (as defined in the Credit Agreement).
6. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties in respect of the subject matter hereof and supersedes all prior representations, warranties, agreements, and understandings, if any, with respect thereto.
7. Counterpart Execution. This Agreement may be executed any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any counterpart. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed counterpart of this Agreement.
8. Governing Law. THIS AGREEMENT AND ANY CLAIM OR CONTROVERSY RELATING TO THE SUBJECT MATTER HEREOF, WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
4
THE TERMS SET FORTH IN SECTION 19 OF THE FOREIGN GUARANTY AGREEMENT (SUBMISSION TO JURISDICTION; WAIVERS; CONSENT TO SERVICE OF PROCESS) ARE HEREBY INCORPORATED BY REFERENCE, MUTATIS MUTANDIS.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9. Agents. The Administrative Agent and Collateral Agent are entering into this Agreement solely in their respective capacities as Administrative Agent and Collateral Agent under the Loan Documents and at the direction of the Supermajority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders. All rights, protections, indemnities and benefits granted to the Administrative Agent and the Collateral Agent in the Loan Documents are hereby reaffirmed with respect to their actions taken pursuant to this Agreement and incorporated as if fully set forth in this Agreement.
[Signatures Begin on the Following Page]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| ADMINISTRATIVE AGENT: | ||
| GLAS USA LLC | ||
| By: |
/s/ Jeffrey Schoenfeld | |
| Name: |
Jeffrey Schoenfeld | |
| Title: |
Vice President | |
| COLLATERAL AGENT: | ||
| GLAS Americas LLC | ||
| By: |
/s/ Jeffrey Schoenfeld | |
| Name: |
Jeffrey Schoenfeld | |
| Title: |
Vice President | |
| COMPANY: | ||
| Diebold Nixdorf, Incorporated | ||
| By: |
/s/ Jonathan Leiken | |
| Name: |
Jonathan Leiken | |
| Title: |
EVP, Chief Legal Officer and Secretary | |
Signature Page to Guarantor Limited Release Agreement
| GERMAN GUARANTORS: | ||
| Diebold Nixdorf Holding Germany GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: | Olaf Heyden | |
| Title: | Managing Director | |
| WINCOR NIXDORF International GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
| Diebold Nixdorf Deutschland GmbH | ||
| By: | /s/ Frank Johann | |
| Name: | Frank Johann | |
| Title: | Managing Director | |
| Diebold Nixdorf Systems GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
| Diebold Nixdorf Operations GmbH | ||
| By: | /s/ Michael Schuett | |
| Name: | Michael Schuett | |
| Title: | Managing Director | |
Signature Page to Guarantor Limited Release Agreement
| Diebold Nixdorf Vermogensverwaltungs GmbH | ||
| By: | /s/ Olaf Heyden | |
| Name: | Olaf Heyden | |
| Title: | Managing Director | |
| Diebold Nixdorf Finance Germany GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
| Diebold Nixdorf Logistics GmbH | ||
| By: | /s/ Christina Wieber | |
| Name: | Christina Wieber | |
| Title: | Managing Director | |
| Diebold Nixdorf Business Administration Center GmbH | ||
| By: | /s/ Jörg Kleinschmidt | |
| Name: | Jörg Kleinschmidt | |
| Title: | Managing Director | |
| Diebold Nixdorf Global Logistics GmbH | ||
| By: | /s/ Christina Wieber | |
| Name: | Christina Wieber | |
| Title: | Managing Director | |
| IP Management GmbH | ||
| By: | /s/ Olaf Heyden | |
| Name: | Olaf Heyden | |
| Title: | Managing Director | |
Signature Page to Guarantor Limited Release Agreement
| Diebold Nixdorf Security GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
| Wincor Nixdorf Facility GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
| Diebold Nixdorf Real Estate GmbH & Co. KG | ||
| By: | /s/ Jörn Förster | |
| Name: | Jörn Förster | |
| Title: | Managing Director | |
Signature Page to Guarantor Limited Release Agreement
Schedule 1
GERMAN GUARANTORS
| Entity |
Jurisdiction | |||
| 1. |
WINCOR NIXDORF International GmbH | Germany | ||
| 2. |
Diebold Nixdorf Deutschland GmbH | Germany | ||
| 3. |
Diebold Nixdorf Systems GmbH | Germany | ||
| 4. |
Diebold Nixdorf Operations GmbH | Germany | ||
| 5. |
Diebold Nixdorf Vermogensverwaltungs GmbH | Germany | ||
| 6. |
Diebold Nixdorf Finance Germany GmbH | Germany | ||
| 7. |
Diebold Nixdorf Logistics GmbH | Germany | ||
| 8. |
Diebold Nixdorf Business Administration Center GmbH | Germany | ||
| 9. |
Diebold Nixdorf Global Logistics GmbH | Germany | ||
| 10. |
IP Management GmbH | Germany | ||
| 11. |
Diebold Nixdorf Security GmbH | Germany | ||
| 12. |
Wincor Nixdorf Facility GmbH | Germany | ||
| 13. |
Diebold Nixdorf Real Estate GmbH & Co. KG | Germany | ||
Exhibit 10.4
Execution Version
GUARANTOR LIMITED RELEASE AGREEMENT
THIS GUARANTOR LIMITED RELEASE AGREEMENT (this “Agreement”) is made as of May 31, 2023, by JPMorgan Chase Bank, N.A., as administrative agent for the Lenders (in such capacity “Administrative Agent”), and GLAS Americas LLC, as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), with respect to the Foreign Guarantors listed on Schedule 1 hereto (the “German Guarantors”) party to that certain Foreign Guarantee Agreement, dated as of December 29, 2022 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Foreign Guarantee Agreement”), made by each of the Foreign Guarantors (such Foreign Guarantors other than the German Guarantors being referred to herein as the “Non-German Foreign Guarantors”) in favor of the Secured Parties. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings ascribed to such terms in the Foreign Guarantee Agreement.
RECITALS
WHEREAS, the Foreign Guarantee Agreement was entered into in connection with that certain Credit Agreement, dated as of December 29, 2022 (as it may be amended, restated, supplemented or modified from time to time, and together with any agreement executed in replacement therefor or otherwise refinancing such credit agreement, the “Credit Agreement”), among Diebold Nixdorf Incorporated, an Ohio corporation (the “Company”), the Administrative Agent, the Collateral Agent and the Lenders;
WHEREAS, Section 8.2.1(c)(ii) of the Credit Agreement provides that in immediate contemplation, or following commencement, of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by the German-domiciled Guarantors and the Liens on assets of such entities may be released with the consent of the Supermajority Lenders, solely in the event that (x) (i) the Supermajority Lenders, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Term Loans, as defined in the Credit Agreement (the “Supermajority Superpriority Lenders”), and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes (the “Supermajority 2025 Notes Holders”) determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors (collectively, the “Release Consents”) and (y) such Guarantors are concurrently released from their guarantee obligations under the Superiority Term Loans and the 2025 Notes and the Liens on the assets of such entities securing the Superpriority Term Loans and the 2025 Notes are concurrently released (clauses (x) and (y) above referred to herein, collectively, as the “Release Conditions”);
WHEREAS, the Company entered into that certain Restructuring Support Agreement, dated as of May 30, 2023 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “RSA”), by and among the Company, certain of its Subsidiaries listed on the signature pages there to and the Consenting Creditors (as defined therein);
WHEREAS, pursuant to the RSA, the Company, any Company Party (as defined in the RSA) or any Affiliate (as defined in the RSA) thereof may file the Chapter 11 Cases (as defined in the RSA);
1
WHEREAS, pursuant to the RSA, (a) the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders have provided the Release Consents, (b) the German Guarantors will, concurrently with the effectiveness of this Agreement, be released from their guarantee obligations under the Superpriority Term Loans and the 2025 Notes, (c) the Liens on the assets of the German Guarantors securing the Obligations, the Superpriority Term Loans and the 2025 Notes will, concurrently with the effectiveness of this Agreement, be released and (d) the Supermajority Lenders irrevocably authorized and directed the Administrative Agent and the Collateral Agent to enter into this Agreement; and
WHEREAS, the Administrative Agent and the Collateral Agent are entering into this Agreement at the direction of the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders to give effect to the release of the German Guarantors from the Foreign Guarantee Agreement immediately and automatically upon the commencement of the Chapter 11 Cases on the Petition Date (each as defined in the RSA); it being understood and agreed that the effectiveness of this Agreement and the releases provided for herein are subject to, and conditioned upon, the occurrence of the Effective Date (as defined below);
NOW, THEREFORE, for good and valuable consideration, the receipt of which is acknowledged and accepted, the parties hereby agree as follows:
AGREEMENT
1. Recitals. Each German Guarantor acknowledges the accuracy of the Recitals hereto.
2. Release of German Guarantors. The Administrative Agent and the Collateral Agent, acting at the direction of the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders, without recourse or warranty, express or implied by the Administrative Agent or the Collateral Agent, hereby irrevocably and unconditionally release and discharge, effective upon the occurrence of the Effective Date (as defined below), the German Guarantors from the Foreign Guarantee Agreement, and any and all liabilities, undertakings and obligations created, evidenced, conferred or otherwise resulting thereunder (“Release of German Guarantors”); provided, however, this release shall not apply to the Non-German Foreign Guarantors and the Non-German Foreign Guarantors shall remain liable and obligated under the Foreign Guarantee Agreement. For the avoidance of doubt, the Release of German Guarantors does not affect, impair or reduce the obligations of any other party under the Foreign Guarantee Agreement.
3. Effectiveness of Release. The Supermajority Lenders have agreed pursuant to the RSA that this Agreement shall take effect and the Release of German Guarantors under this Agreement shall occur automatically and without any further action by any Person on the first date on which the following conditions have been satisfied: (i) the RSA shall be in effect, (ii) the Chapter 11 Cases shall have commenced and the Petition Date shall have occurred and (iii) the Release Conditions shall have been satisfied (such date, the “Effective Date”). It being understood and agreed that if the RSA is terminated prior to the Petition Date, this Agreement shall immediately and automatically terminate and shall have no further force or effect.
2
4. Reaffirmation of Foreign Guarantee Agreement. Except for the Release of the German Guarantors, the Foreign Guarantee Agreement shall remain unchanged and in full force and effect. No amendment, consent or waiver by the Administrative Agent, the Collateral Agent or any Lender under the Foreign Guarantee Agreement, the Credit Agreement or the Security Documents (as defined in the Credit Agreement) is granted or intended except for the Release of German Guarantors expressly set forth herein (subject to the limitations set forth herein), and the Administrative Agent, the Collateral Agent and each Lender requires strict compliance with the terms of the Foreign Guarantee Agreement, Credit Agreement and Security Documents in all other respects.
5. Further Assurances. The Administrative Agent or Collateral Agent, as the case may be, shall at the reasonable written request of the Company in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent (and the direction of the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders (as applicable)), and at the Company’s sole cost and expense, execute and deliver all further instruments and documents, and take any other actions in each case as may reasonably be necessary in order to give effect to the Release of German Guarantors contained in this Agreement. The Administrative Agent or Collateral Agent (in each case, at the direction of the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders (as applicable)), as the case may be, hereby authorizes the German Guarantors or any designee of any such German Guarantor to, at any time on and after the Effective Date, prepare or file all such documents and other releases, discharges and related filings and to take all actions, in each case, as may reasonably be necessary to effectuate the Release of German Guarantors herein referred to. This Agreement is a Loan Document (as defined in the Credit Agreement).
6. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties in respect of the subject matter hereof and supersedes all prior representations, warranties, agreements, and understandings, if any, with respect thereto.
7. Counterpart Execution. This Agreement may be executed any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any counterpart. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed counterpart of this Agreement.
8. Governing Law. THIS AGREEMENT AND ANY CLAIM OR CONTROVERSY RELATING TO THE SUBJECT MATTER HEREOF, WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE TERMS SET FORTH IN SECTION 19 OF THE FOREIGN GUARANTY AGREEMENT (SUBMISSION TO JURISDICTION; WAIVERS; CONSENT TO SERVICE OF PROCESS) ARE HEREBY INCORPORATED BY REFERENCE, MUTATIS MUTANDIS.
3
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9. Agents. The Administrative Agent and Collateral Agent are entering into this Agreement solely in their respective capacities as Administrative Agent and Collateral Agent under the Loan Documents and at the direction of the Supermajority Lenders, the Supermajority Superpriority Lenders and the Supermajority 2025 Notes Holders. All rights, protections, indemnities and benefits granted to the Administrative Agent and the Collateral Agent in the Loan Documents are hereby reaffirmed with respect to their actions taken pursuant to this Agreement and incorporated as if fully set forth in this Agreement.
[Signatures Begin on the Following Page]
4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| COMPANY: | ||
| Diebold Nixdorf, Incorporated | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: EVP, Chief Legal Officer and Secretary | ||
| COLLATERAL AGENT: | ||
| GLAS Americas LLC | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
| ADMINISTRATIVE AGENT: | ||
| JPMorgan Chase Bank, N.A. | ||
| By: | /s/ Kevin Podwika | |
| Name: Kevin Podwika | ||
| Title: Authorized Officer | ||
Signature Page to Guarantor Limited Release Agreement
| GERMAN GUARANTORS: | ||
| Diebold Nixdorf Holding Germany GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| WINCOR NIXDORF International GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| Diebold Nixdorf Deutschland GmbH | ||
| By: | /s/ Frank Johann | |
| Name: Frank Johann | ||
| Title: Managing Director | ||
| Diebold Nixdorf Systems GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| Diebold Nixdorf Operations GmbH | ||
| By: | /s/ Michael Schuett | |
| Name: Michael Schuett | ||
| Title: Managing Director | ||
Signature Page to Guarantor Limited Release Agreement
| Diebold Nixdorf Vermogensverwaltungs GmbH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| Diebold Nixdorf Finance Germany GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| Diebold Nixdorf Logistics GmbH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| Diebold Nixdorf Business Administration Center GmbH | ||
| By: | /s/ Jörg Kleinschmidt | |
| Name: Jörg Kleinschmidt | ||
| Title: Managing Director | ||
| Diebold Nixdorf Global Logistics GmbH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| IP Management GmbH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
Signature Page to Guarantor Limited Release Agreement
| Diebold Nixdorf Security GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| Wincor Nixdorf Facility GmbH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| Diebold Nixdorf Real Estate GmbH & Co. KG | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
Signature Page to Guarantor Limited Release Agreement
Schedule 1
GERMAN GUARANTORS
| Entity |
Jurisdiction | |||
| 1. | Diebold Nixdorf Holding Germany GmbH | Germany | ||
| 2. | WINCOR NIXDORF International GmbH | Germany | ||
| 3. | Diebold Nixdorf Deutschland GmbH | Germany | ||
| 4. | Diebold Nixdorf Systems GmbH | Germany | ||
| 5. | Diebold Nixdorf Operations GmbH | Germany | ||
| 6. | Diebold Nixdorf Vermogensverwaltungs GmbH | Germany | ||
| 7. | Diebold Nixdorf Finance Germany GmbH | Germany | ||
| 8. | Diebold Nixdorf Logistics GmbH | Germany | ||
| 9. | Diebold Nixdorf Business Administration Center GmbH | Germany | ||
| 10. | Diebold Nixdorf Global Logistics GmbH | Germany | ||
| 11. | IP Management GmbH | Germany | ||
| 12. | Diebold Nixdorf Security GmbH | Germany | ||
| 13. | Wincor Nixdorf Facility GmbH | Germany | ||
| 14. | Diebold Nixdorf Real Estate GmbH & Co. KG | Germany | ||
Exhibit 10.5
Execution Version
| DATED | 31 MAY 2023 | |||
| (1) | GLAS AMERICAS LLC | |||
| as European Collateral Agent | ||||
| (2) |
JPMORGAN CHASE BANK, N.A. | |||
| as Administrative Agent | ||||
| (3) |
DIEBOLD NIXDORF, INCORPORATED | |||
| (4) |
DIEBOLD NIXDORF DEUTSCHLAND GMBH | |||
| (5) |
DIEBOLD NIXDORF SYSTEMS GMBH | |||
| (6) |
WINCOR NIXDORF INTERNATIONAL GMBH | |||
| (7) |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH | |||
| (8) |
DIEBOLD NIXDORF HOLDING GERMANY GMBH | |||
| (9) |
DIEBOLD NIXDORF LOGISTICS GMBH | |||
| (10) |
WINCOR NIXDORF FACILITY GMBH | |||
| (11) |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG | |||
| (12) |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH | |||
| (13) |
IP MANAGEMENT GMBH | |||
| (14) |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH | |||
| (15) |
DIEBOLD NIXDORF SECURITY GMBH | |||
| (16) |
DIEBOLD NIXDORF OPERATIONS GMBH | |||
| (17) |
DIEBOLD NIXDORF FINANCE GERMANY GMBH | |||
| (18) |
DIEBOLD NIXDORF AB | |||
SECURITY RELEASE AND AMENDMENT
AGREEMENT
(Sicherheitenfreigabe- und -änderungsvereinbarung)
TABLE OF CONTENTS
| Page | ||||||
| 1. |
INTERPRETATION | 7 | ||||
| 2. |
CONDITION PRECEDENT | 7 | ||||
| 3. |
RELEASE UNDER THE GERMAN SECURITY AGREEMENTS | 8 | ||||
| 4. |
FURTHER ASSURANCE | 10 | ||||
| 5. |
NOTIFICATION OF RELEASE | 10 | ||||
| 6. |
INDEMNITY | 11 | ||||
| 7. |
COST AND EXPENSES | 11 | ||||
| 8. |
ASSIGNMENT AND TRANSFER | 11 | ||||
| 9. |
PARTIAL INVALIDITY | 11 | ||||
| 10. |
AMENDMENTS | 11 | ||||
| 11. |
COUNTERPARTS | 11 | ||||
| 12. |
LAW AND JURISDICTION | 12 | ||||
i
THIS SECURITY RELEASE AND AMENDMENT AGREEMENT (THE “AGREEMENT”) IS MADE ON 30 MAY 2023 BETWEEN THE FOLLOWING PARTIES:
| (1) | GLAS AMERICAS LLC, as European Collateral Agent (the “European Collateral Agent”), and in the name of the financial institutions listed in Schedule 1 hereto as lenders, agents and/or letter of credit issuers (the European Collateral Agent and the entities listed in Schedule 1 are collectively referred to as the “Secured Parties”); and |
| (2) | JPMORGAN CHASE BANK, N.A., a national banking association organized under the federal banking laws of the United States under Charter No. 8 issued by the US Comptroller of the Currency, as Administrative Agent (the “Administrative Agent”); and |
| (3) | DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation, with its business address at 5995 Mayfair Road, North Canton, Ohio 44720 USA, as pledgor (the “Security Provider 1”); and |
| (4) | DIEBOLD NIXDORF DEUTSCHLAND GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 13110 (the “Security Provider 2”); and |
| (5) | DIEBOLD NIXDORF SYSTEMS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 9489 (the “Security Provider 3”); and |
| (6) | WINCOR NIXDORF INTERNATIONAL GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 3507 (the “Security Provider 4”); and |
| (7) | DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 12262 (the “Security Provider 5”); and |
| (8) | DIEBOLD NIXDORF HOLDING GERMANY GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 14567 (the “Security Provider 6”); and |
| (9) | DIEBOLD NIXDORF LOGISTICS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 3913 (the “Security Provider 7”); and |
1
| (10) | WINCOR NIXDORF FACILITY GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 3505 (the “Security Provider 8”); and |
| (11) | DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG, a limited partnership (Kommanditgesellschaft), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRA 2547 (the “Security Provider 9”); and |
| (12) | DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 9546 (the “Security Provider 10”); and |
| (13) | IP MANAGEMENT GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 8833 (the “Security Provider 11”); and |
| (14) | DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 15720 (the “Security Provider 12”); and |
| (15) | DIEBOLD NIXDORF SECURITY GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 3697 (the “Security Provider 13”); and |
| (16) | DIEBOLD NIXDORF OPERATIONS GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 3887 (the “Security Provider 14”); and |
| (17) | DIEBOLD NIXDORF FINANCE GERMANY GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung), existing under the laws of Germany and having its registered office at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Paderborn under registration number HRB 15287 (the “Security Provider 15” and, together with the Security Provider 2 through and including the Security Provider 15, collectively, the “German Security Providers”); and |
| (18) | DIEBOLD NIXDORF AB, a private limited liability company organized under the laws of Sweden with company registration number 556567-7787 (the “Security Provider 16” and, together with the Security Provider 1 through and including the Security Provider 15, collectively, the “Security Providers” and each, a “Security Provider”). |
2
The parties referred to in (1) through (18) above are collectively referred to as the “Parties”.
INTRODUCTION
| (A) | On 29 December 2022, among others, the Security Provider 1, as parent borrower, company and guarantor, the Security Provider 2, the Security Provider 3, the Security Provider 4 and the Security Provider 5, each as German borrowers and guarantors, several banks and other financial institutions or entities from time to time party thereto, as lenders, certain other guarantors, the Administrative Agent, as administrative agent, and the European Collateral Agent, as European collateral agent, entered into a USD 250,000,000 asset-based revolving credit and guaranty agreement governed by the laws of the State of New York (as amended, restated, supplemented or modified from time to time, the “ABL Credit Agreement”). |
| (B) | On 21 March 2023, among others, the Security Provider 1, as parent borrower, US borrower, company and guarantor, the Security Provider 2, the Security Provider 3, the Security Provider 4 and the Security Provider 5, each as German borrowers and guarantors, several banks and other financial institutions or entities from time to time party thereto as lenders, certain other guarantors and the Administrative Agent, as administrative agent, entered into an amendment and limited waiver agreement in relation to the ABL Credit Agreement to, inter alia, establish a USD 55,000,000 FILO Facility (as defined therein) under the ABL Credit Agreement (as amended, restated, supplemented or modified from time to time, the “FILO Facility”). |
| (C) | On 29 December 2022, among others, the Security Provider 1, as company and guarantor, the Security Provider 6, as borrower, the other Security Providers, as guarantors, several banks and other financial institutions or entities from time to time party thereto, as lenders, certain guarantors, GLAS USA LLC, as administrative agent (the “Super Priority Agent”), and the European Collateral Agent, as collateral agent, entered into a USD 400,000,000 credit agreement governed by the laws of the State of New York (as amended, restated, supplemented or modified from time to time, the “Super Priority Credit Agreement”). |
| (D) | On 20 July 2020, among others, the Security Provider 1, as issuer, certain guarantors party thereto from time to time, U.S. Bank Trust Company, National Association, as notes trustee and collateral agent, entered into an indenture relating to the Security Provider 1’s 9.375% senior secured notes due 2025 in an aggregate principal amount of USD 700,000,000, which indenture was amended and restated on 29 December 2022 in connection with an exchange of certain 9.375% senior secured notes due 2025 for additional 9.375% senior secured notes due 2025 by the amended and restated senior secured notes indenture, dated as of 29 December 2022, among the Security Provider 1, as issuer, certain guarantors party thereto from time to time, U.S. Bank Trust Company, National Association, as notes trustee, and the European Collateral Agent, as collateral agent (as amended and restated and as it may be further amended, restated, supplemented or modified from time to time, the “Existing USD Notes Indenture”). |
| (E) | On 20 July 2020, among others, Diebold Nixdorf Dutch Holding B.V., as issuer, the Security Provider 1, as guarantor, certain other guarantors party thereto from time to time, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S. Bank Trust Company, National Association, as notes trustee, and U.S. Bank Trustees Limited, as collateral agent, entered into an indenture relating to Diebold Nixdorf Dutch Holding B.V.’s 9.000% senior secured notes due 2025 in an aggregate principal amount of EUR 350,000,000, which indenture was amended and restated on 29 December 2022 in connection with an exchange of certain 9.000% senior secured notes due 2025 for additional 9.000% senior secured notes due 2025 by the amended and restated senior secured notes indenture, dated as of 29 December 2022, among Diebold Nixdorf Dutch Holding B.V., as issuer, the Security Provider 1, as guarantor, certain other guarantors party thereto from time to time, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S. Bank Trust Company, National Association, as notes trustee, and the European Collateral Agent, as collateral agent (as amended and restated and as it may be further amended, restated, supplemented or modified from time to time, the “Existing EUR Notes Indenture” and, together with the Existing USD Notes Indenture, the “2025 Notes Indentures”). |
3
| (F) | On 29 December 2022, among others, the Security Provider 1, the guarantors party thereto, the Administrative Agent, as administrative agent, the European Collateral Agent, as collateral agent, and the lenders party thereto from time to time entered into a USD 607,729,725.09 and EUR 102,866,418.28 credit agreement governed by the laws of the State of New York (as amended, restated, supplemented or modified from time to time, the “Extended Credit Agreement”). |
| (G) | On 29 December 2022, among others, the Security Provider 1, the guarantors party thereto, U.S. Bank Trust Company, National Association, as notes trustee, and the European Collateral Agent, as collateral agent, entered into a senior secured PIK toggle notes indenture relating to the Security Provider 1’s 8.50%/12.50% senior secured PIK toggle notes due 2026 in an aggregate principal amount of USD 333,616,814 (as amended, restated, supplemented or modified from time to time the “2L Notes Indenture”). |
| (H) | On 29 December 2022, among others, (i) the Administrative Agent, as an ABL representative, (ii) the European Collateral Agent, as an ABL representative, (iii) the European Collateral Agent, as the super priority term representative, (iv) the European Collateral Agent, as the extended term representative, (v) the Administrative Agent, as the existing term representative, (vi) the European Collateral Agent, as the new term debt representative, (vii) the European Collateral Agent, as the existing USD notes representative, (viii) the European Collateral Agent, as the existing EUR notes representative, and (ix) each of the loan parties party thereto entered into the ABL intercreditor agreement governed by the laws of the State of New York (as amended, restated, supplemented or modified from time to time, the “ABL Intercreditor Agreement”). Under the ABL Intercreditor Agreement, in order to secure each separate payment claim of each separate secured party, the Security Providers have acknowledged certain payment obligations under the Parallel Debt (as defined in the ABL Intercreditor Agreement). |
| (I) | In order to secure the Security Providers’ obligations under, as the case may be, the ABL Credit Agreement, the FILO Facility, the Super Priority Credit Agreement, the 2025 Notes Indentures, the Extended Credit Agreement, the 2L Notes Indenture, and any agreement that has been, or will be, entered into in connection therewith, in particular the ABL Intercreditor Agreement and any agreement purporting to create a security interest, as well as any other document designated as a debt document by the parties thereto, certain Security Providers have entered into certain German-law governed security agreements with the European Collateral Agent and/or the Administrative Agent. In this respect, (i) on 29 December 2022, the Security Provider 2 through and including the Security Provider 16 pledged to the European Collateral Agent and certain of the entities listed in Schedule 1 hereto their relevant bank accounts held with any bank in the Federal Republic of Germany (the “German Account Pledge Agreement”), (ii) on 29 December 2022, the Security Provider 2 through and including the Security Provider 15 transferred for security purposes to the European Collateral Agent certain of their movable assets located in the Federal Republic of Germany (as amended by a security amendment and restatement agreement dated 29 March 2023 between the European Collateral Agent, the Administrative Agent and the Security Provider 2 through and including the Security Provider 16, the “German Security Transfer Agreement”), (iii) on 29 December 2022, the Security Provider 2 through and including the Security Provider 15 assigned for security purposes to the European Collateral Agent their trade receivables, insurance receivables and intragroup receivables (as amended by a security amendment and restatement agreement dated 29 March 2023 between the European Collateral Agent, the Administrative Agent and the Security Provider 2 through and including the Security Provider 16, the “German Global Assignment Agreement”), (iv) on 29 March 2023, the Security Provider 2, the Security Provider 7 and the Security Provider 8 pledged to the European Collateral Agent under the notarial deed 262/2023 F of the German notary public Dr. Sabine Funke, Frankfurt am Main, the equity interests respectively owned by each such Security Provider in such other Security Providers (the “German Share Pledge Agreement”), (v) on 29 March 2023, the Security Provider 2 and the Security Provider 13 pledged to the European Collateral Agent under the notarial deed 262/2023 F of the German notary public Dr. Sabine Funke, Frankfurt am Main, their respective partnership interests in the Security Provider 9 (the “German Partners’ Interest Pledge Agreement”), (vi) on 29 March 2023 the Security Provider 2 through and including the Security Provider 16 pledged by way of a junior-ranking pledge to the European Collateral Agent and certain of the entities listed in Schedule 1 hereto their relevant bank accounts held with any bank in the Federal Republic of Germany (the “Junior-Ranking German Account Pledge Agreement” and, together with the German Account Pledge Agreement, the German Share Pledge Agreement and the German Partners’ Interest Pledge Agreement, collectively, the “German Pledge Agreements”) and (vii) on 29 March 2023, the Security Provider 2 through and including the Security Provider 15 assigned for security purposes to the European Collateral Agent certain intellectual property rights, domain claims and ancillary claims (the “German IP Security Assignment Agreement”, and, together with the German Pledge Agreements, the German Security Transfer Agreement and the German Global Assignment Agreement, collectively, the “German Security Agreements”). |
4
| (J) | Section 8.2.1(c)(ii) of the Super Priority Credit Agreement provides that in immediate contemplation, or following commencement, of bankruptcy, insolvency or reorganization proceedings with respect to the Security Provider 1 and its material Domestic Subsidiaries (as defined in the Super Priority Credit Agreement), the guarantees provided by the German Security Providers and the liens and security interests on assets of such entities may be released with the consent of the Supermajority Superpriority Lenders (as defined herein), solely in the event that (x) (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Super Priority Credit Agreement (the “Supermajority Superpriority Lenders”), (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the Extended Credit Agreement, (the “Supermajority New Term Lenders”), and (iii) holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding notes under the 2025 Notes Indentures (the “Supermajority 2025 Notes Holders”) determine in good faith that the release of such guarantees and liens and security interests is necessary to avoid material value deterioration of the German Security Providers (collectively, the “Superpriority Release Consents”) and (y) such German Security Providers are concurrently released from their guarantee obligations under the Extended Credit Agreement and the 2025 Notes Indentures and the liens and security interests on the assets of such entities securing the Extended Credit Agreement and the 2025 Notes Indentures are concurrently released (clauses (x) and (y) above referred to herein, collectively, as the “Superpriority Release Conditions”). |
| (K) | Section 8.2.1(c)(ii) of the Extended Credit Agreement provides that in immediate contemplation, or following commencement, of bankruptcy, insolvency or reorganization proceedings with respect to the Security Provider 1 and its material Domestic Subsidiaries (as defined in the Extended Credit Agreement), the guarantees provided by German Security Providers and the liens and security interests on assets of such German Security Providers may be released with the consent of the Supermajority Lenders (as defined in the Extended Credit Agreement), solely in the event that (x) (i) the Supermajority New Term Lenders, (ii) the Supermajority Superpriority Lenders, and (iii) the Supermajority 2025 Notes Holders determine in good faith that the release of such liens and security interests is necessary to avoid material value deterioration of the German Security Providers (collectively, the “Extended Release Consents”) and (y) such German Security Providers are concurrently released from their guarantee obligations under the Super Priority Credit Agreement and the 2025 Notes Indentures and the liens and security interests on the assets of such entities securing the Super Priority Credit Agreement and the 2025 Notes Indentures are concurrently released (clauses (x) and (y) above referred to herein, collectively, as the “Extended Release Conditions” and, together with the Superpriority Release Conditions, collectively, the “Release Conditions”). |
5
| (L) | Section 9.02(f) of each of the 2025 Notes Indentures provides that in immediate contemplation or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Security Provider 1 and its material Domestic Subsidiaries (as defined in the 2025 Notes Indentures), the guarantees provided by German Security Providers and the liens on assets of such German Security Providers may be released with the consent of (x) the Supermajority Superpriority Lenders, (y) the Supermajority New Term Lenders, (z) the Supermajority 2025 Notes Holders in the event that such lenders and holders determine in good faith that the release of such guarantees and liens is necessary to avoid material value deterioration of the German Security Providers (collectively, the “2025 Notes Release Consents” and, together with the Superpriority Release Consents and the Extended Release Consents, collectively, the “Release Consents”). |
| (M) | Section 9.02(f) of the 2L Notes Indenture provides that in immediate contemplation or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Security Provider 1 and its material Domestic Subsidiaries (as defined in the 2L Notes Indenture), the guarantees provided by German Security Providers and the liens on assets of such German Security Providers may be released with the consent of (x) (i) the Supermajority Superpriority Lenders, (ii) the Supermajority New Term Lenders, (iii) the Supermajority 2025 Notes Holders in the event that such lenders and holders determine in good faith that the release of such guarantees and liens is necessary to avoid material value deterioration of the German Security Providers. |
| (N) | The Security Provider 1 entered into that certain Guarantor Limited Release Agreement, dated as of 30 May 2023 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Superpriority Guarantor Release Agreement”), made by the Security Provider 1, as company, the German Security Providers, as German guarantors, the Super Priority Agent, as administrative agent, and the European Collateral Agent, as collateral agent. |
| (O) | The Security Provider 1 entered into that certain Guarantor Limited Release Agreement, dated as of 30 May 2023 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Extended Guarantor Release Agreement” and, together with the Superpriority Guarantor Release Agreement, each, a “Relevant Guarantor Release Agreement”), made by the Security Provider 1, as company, the German Security Providers, as German guarantors, the Administrative Agent, as administrative agent, and the European Collateral Agent, as collateral agent. |
| (P) | The Supermajority 2025 Notes Holders have delivered to the trustees under the 2025 Notes Indenture and 2L Notes Indenture consents to the release of the German Security Providers from their guarantee obligations under the 2025 Notes Indentures and the Security Provider 1 and Diebold Nixdorf Dutch Holding B.V., as applicable, have delivered to the trustees under the 2025 Notes Indenture and 2L Notes Indenture copies of the Relevant Guarantor Release Agreements. |
| (Q) | The Security Provider 1 entered into that certain Restructuring Support Agreement, dated as of 30 May 2023 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “RSA”), by and among the Security Provider 1, certain of its subsidiaries listed on the signature pages there to and the Consenting Creditors (as defined therein). |
6
| (R) | Pursuant to the RSA, the Security Provider 1, any Company Party (as defined in the RSA) or any Affiliate (as defined in the RSA) thereof may file the Chapter 11 Cases (as defined in the RSA). |
| (S) | Pursuant to the RSA, (i) the Supermajority Superpriority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders have provided the Release Consents, (ii) the German Security Providers will, concurrently upon the satisfaction of the Condition Precedent (as defined below) and with the effectiveness of each Relevant Guarantor Release Agreement, be released from their guarantee obligations under the Super Priority Credit Agreement, the Extended Credit Agreement, the 2025 Notes Indentures and the 2L Notes Indenture, (iii) the liens and security interests on the assets of the German Security Providers securing the obligations under the Super Priority Credit Agreement, the Extended Credit Agreement, the 2025 Notes Indentures and the 2L Notes Indenture will, concurrently upon the satisfaction of the Condition Precedent and with the effectiveness of each Relevant Guarantor Release Agreement, be released and (iv) (A) the Supermajority Superpriority Lenders irrevocably authorized and directed the European Collateral Agent, as collateral agent, to enter into this Agreement and (B) the Supermajority New Term Lenders irrevocably authorized and directed the European Collateral Agent, as collateral agent, to enter into this Agreement. It being understood and agreed that immediately upon the occurrence of the releases contemplated in clauses (ii) and (iii) above, the Release Conditions shall be automatically satisfied. |
| (T) | The Administrative Agent and the European Collateral Agent are entering into this Agreement at the direction of the Supermajority Superpriority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders to give effect to the release of the liens and security interests on the assets of the German Security Providers created under or pursuant to the German Security Agreements securing the obligations under the Super Priority Credit Agreement, the Extended Credit Agreement, the 2025 Notes Indentures and the 2L Notes Indenture immediately and automatically upon the commencement of the Chapter 11 Cases on the Petition Date (as defined in the RSA). |
| 1. | INTERPRETATION |
| 1.1 | The interpretation and construction provisions set out in clause 1.2 of the German Security Agreements shall apply to this Agreement unless the context otherwise requires. |
| 1.2 | This Agreement is made in the English language only. However, terms to which a German translation has been added in italics shall be interpreted as having the meaning assigned to them by the German translation. |
| 2. | CONDITION PRECEDENT |
All waivers and amendments referred to in this Agreement (including clause 3 (Release of the German Security Agreements), collectively, the “Release”) are conditional upon (aufschiebend bedingt auf) (i) the commencement of the Chapter 11 Cases and occurrence of the Petition Date, (ii) the RSA being in effect and (iii) the satisfaction of the Release Conditions (the “Condition Precedent”).
7
| 3. | RELEASE UNDER THE GERMAN SECURITY AGREEMENTS |
Subject only to the satisfaction of the Condition Precedent, the European Collateral Agent, acting at the direction of the Supermajority Superpriority Lenders, the Supermajority New Term Lenders and the Supermajority 2025 Notes Holders, and the other Secured Parties hereby irrevocably and unconditionally waive all rights they have or may have against any of the German Security Providers under or pursuant to the German Security Agreements in so far as the security granted by the German Security Providers under the German Security Agreements secure the obligations, liabilities and indemnities under or in connection with the Super Priority Credit Agreement, the Extended Credit Agreement, the 2025 Notes Indentures and the 2L Notes Indenture, so that the security granted by the German Security Providers under the German Security Agreements subject to satisfaction of the Condition Precedent only secure the obligations, liabilities and indemnities under or in connection with the ABL Credit Agreement and that the definition of Secured Obligations in the German Security Agreements shall be amended and construed accordingly:
| (A) | German Account Pledge Agreement,: |
The definition of “Secured Obligations” in clause 1.1 of the German Account Pledge Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means the “Secured Obligations” as that term is defined in the Intercreditor Agreement and in any event, includes any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to any Pledgee under or in respect of any Debt Document, and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt), as well as (c) any claims of the Pledgees arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code (Insolvenzordnung), provided that in relation to any security created hereunder by Pledgor 1 to Pledgor 14, the Secured Obligations shall be limited to the Secured Obligations under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023)). The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Pledgees against the Loan Parties which constitute Secured Obligations.”
| (B) | Junior-Ranking German Account Pledge Agreement: |
The definition of “Secured Obligations” in clause 1.1 of the Junior-Ranking German Account Pledge Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means the “Secured Obligations” as that term is defined in the Intercreditor Agreement and in any event, includes any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to any Pledgee under or in respect of any Debt Document, and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt), as well as (c) any claims of the Pledgees arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code (Insolvenzordnung) provided that in relation to any security created hereunder by Pledgor 1 to Pledgor 14, the Secured Obligations shall be limited to the Secured Obligations under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023)). The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Pledgees against the Loan Parties under the Debt Documents which constitute Secured Obligations.”
| (C) | German Security Transfer Agreement and German Global Assignment Agreement: |
8
The definition of “Secured Obligations” in clause 1.1 of each of the German Security Transfer Agreement and the German Global Assignment Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means the “Secured Obligations” as that term is defined in the Intercreditor Agreement (but limited to the Secured Obligations under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023)) and in any event, includes any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to any Secured Party under or in respect of any Debt Document in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023), and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt), as well as (c) any claims of the Secured Parties arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code (Insolvenzordnung). The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Secured Parties against the Loan Parties which constitute Secured Obligations.”
| (D) | German IP Security Assignment Agreement: |
The definition of “Secured Obligations” in clause 1.1 of the German IP Security Assignment Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means the “Secured Obligations” as that term is defined in the Intercreditor Agreement and in any event, includes any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to any Secured Party under or in respect of any Debt Document, and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt), as well as (c) any claims of the Secured Parties arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code (Insolvenzordnung), provided that in relation to any Security created hereunder by Assignor 2 to and including Assignor 15, the Secured Obligations shall be limited to the Secured Obligations under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023). The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Secured Parties against the Loan Parties which constitute Secured Obligations.”
| (E) | German Share Pledge Agreement: |
The definition of “Secured Obligations” in clause 1.1 of each of the German Share Pledge Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to the Collateral Agent under or in respect of any Debt Document, and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment “ungerechtfertigte Bereicherung” or tort “Delikt”, as well as (c) any claims of the Collateral Agent arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code “Insolvenzordnung”, provided that in relation to any security created hereunder by Pledgor 2 to and including Pledgor 4, the Secured Obligations shall be limited to the Secured Obligations under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023). The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Collateral Agent against the Loan Parties which constitute Secured Obligations;”, and
9
| (F) | German Partners’ Interest Pledge Agreement: |
The definition of “Secured Obligations” in clause 1.1 of the German Partners’ Interest Pledge Agreement shall be amended so that it reads as follows:
“ “Secured Obligations” means any and all present and future, actual and contingent obligations which are (or are expressed to be) or become owed by any Loan Party to the Collateral Agent under or in respect of the ABL Credit Agreement (as amended from time to time and including the amendment dated 21 March 2023), and shall include (a) each Parallel Debt Undertaking, (b) any claims for unjust enrichment “ungerechtfertigte Bereicherung” or tort “Delikt”, as well as (c) any claims of the Collateral Agent arising from the insolvency administrator’s choice to fulfil mutual agreements according to Section 103 of the German Insolvency Code “Insolvenz-ordnung”. The term “Secured Obligations” also covers any future extension, prolongation or increase of any claims and rights of the Collateral Agent against the Loan Parties which constitute Secured Obligations;”.
Each German Security Provider hereby accepts the foregoing waivers and each Security Provider hereby accepts the foregoing amendments in respect to the relevant German Security Agreement(s) to which it is party.
Clause 3 (Purpose of the pledges) of the German Account Pledge Agreement, clause 3 (Purpose of the pledges) of the Junior-Ranking German Account Pledge Agreement, clause 3 (Security purpose) of the German Security Transfer Agreement, clause 3 (Security purpose) of the German Global Assignment Agreement, clause 4 (Secured obligations) of the German IP Security Assignment Agreement; clause 3 (Security purpose) of the German Share Pledge Agreement and clause 3 (Security purpose) of the German Partners’ Interest Pledge Agreement shall be construed in a way that any security purpose other than to secure the ABL Secured Obligations (as defined in the relevant security agreement) shall only apply to the extent such security purpose is covered by the definition of “Secured Obligations” in the relevant security agreement.
| 4. | FURTHER ASSURANCE |
Each applicable Secured Party hereby agrees that, at the written request, and at the sole cost and expense, of the relevant Security Provider, it will promptly sign and execute such further documents or instruments of release and do all such things and execute all such documents as may be reasonably necessary to give effect to the waivers and amendments made under this Agreement.
| 5. | NOTIFICATION OF RELEASE |
Each applicable Secured Party hereby authorises the relevant Security Provider immediately following satisfaction of the Condition Precedent to notify any third party affected by the releases under this Agreement, in particular account banks, insurers and trade partners, in each case who have been informed of the German Security Agreements and on a need-to-know basis, of the amendments and releases effected under this Agreement and solely for that purpose to disclose the relevant parts of this Agreement to the relevant third party.
10
| 6. | INDEMNITY |
| 6.1 | The Secured Parties shall not be liable for any loss or damage suffered by any Security Provider save in respect of such loss or damage which is suffered as a result of the relevant Secured Party’s wilful misconduct (Vorsatz). |
| 6.2 | The Security Providers shall indemnify the Secured Parties and keep the Secured Parties indemnified against any damages, losses, actions, claims, expenses, demands and liabilities which may be made against or incurred by a Secured Party for anything done or omitted in the exercise or purported exercise of the powers and rights under this Agreement or occasioned by any breach of any of the Security Providers of any of their obligations or undertakings contained herein other than to the extent that such damages, losses, actions, claims, expenses, demands and liabilities are incurred by or made against a Secured Party as a result of the relevant Secured Party’s wilful misconduct (Vorsatz). |
| 7. | COST AND EXPENSES |
| 7.1 | The Security Providers shall bear all costs, charges, fees and expenses triggered by this Agreement or reasonably incurred in connection with its preparation, execution, amendment and enforcement, in each case including fees for legal advisers, and shall pay such costs, charges, fees and expenses promptly following a respective demand by any of the Secured Parties. |
| 8. | ASSIGNMENT AND TRANSFER |
The Security Providers shall not be entitled to assign, transfer or otherwise dispose of any or all rights and/or obligations under this Agreement without the prior consent of the European Collateral Agent.
| 9. | PARTIAL INVALIDITY |
The illegality, invalidity or unenforceability of any one or more provisions of this Agreement or any omission from this Agreement shall not affect the legality, validity or enforceability of this Agreement or any of its other provisions. Any illegal, invalid or unenforceable provision shall be replaced by the Parties hereto by a provision, or any omission shall be rectified by incorporation of a provision, which best achieves the commercial effect that the Parties hereto intended thereby.
| 10. | AMENDMENTS |
This Agreement may be amended, modified or waived only in writing in an agreement signed by the Parties hereto. This also applies to this clause 10 (Amendments).
| 11. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts and by the different Parties hereto on separate counterparts each of which, when so executed and delivered, shall be an original but all the counterparts shall together constitute but one and the same instrument.
11
| 12. | LAW AND JURISDICTION |
| 12.1 | Law |
This Agreement (and all non-contractual rights and obligations arising under or in connection with this Agreement) shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
| 12.2 | Jurisdiction |
The place of exclusive jurisdiction for the Parties hereto for disputes arising out of or in connection with this Agreement (including all disputes with regard to non-contractual rights and obligations arising out of or in connection with this Agreement) shall be the courts of Frankfurt am Main, Germany. Each Secured Party shall, however, also be entitled to take legal action against the relevant Security Provider before any other competent court of law having jurisdiction over that Security Provider or any of its assets.
12
SCHEDULE 1 – LIST OF SECURED PARTIES
(other than the European Collateral Agent)
Redacted
13
SIGNATURES
As European Collateral Agent
| GLAS AMERICAS LLC | ||||||
| By: |
/s/ Jeffrey Schoenfeld |
|||||
| Name: |
Jeffrey Schoenfeld | |||||
| Title: |
Vice President | |||||
| As Administrative Agent | ||||||
| JPMORGAN CHASE BANK, N.A. | ||||||
| By: |
/s/ Kevin Podwika |
|||||
| Name: |
Kevin Podwika | |||||
| Title: |
Authorized Officer | |||||
| As Security Provider 1 | ||||||
| DIEBOLD NIXDORF, INCORPORATED | ||||||
| By: |
/s/ James Barna |
/s/ Jonathan Leiken | ||||
| Name: |
James Barna | Jonathan Leiken | ||||
| Title: |
EVP, Chief Financial Officer | EVP, Chief Legal Officer and Secretary | ||||
| As Security Provider 2 | ||||||
| DIEBOLD NIXDORF DEUTSCHLAND GMBH | ||||||
| By: |
/s/ Frank Johann |
|||||
| Name: |
Frank Johan | |||||
| Title: |
Managing Director | |||||
As Security Provider 3
| DIEBOLD NIXDORF SYSTEMS GMBH | ||||||
| By: |
/s/ Jörn Förster |
|||||
| Name: |
Jörn Förster | |||||
| Title: |
Managing Director | |||||
| As Security Provider 4 | ||||||
| WINCOR NIXDORF INTERNATIONAL GMBH | ||||||
| By: |
/s/ Jörn Förster |
/s/ Olaf Heyden | ||||
| Name: |
Jörn Förster | Olaf Heyden | ||||
| Title: |
Managing Director | Managing Director | ||||
| As Security Provider 5 | ||||||
| DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH | ||||||
| By: |
/s/ Christina Wieber |
|||||
| Name: |
Christina Wieber | |||||
| Title: |
Managing Director | |||||
| As Security Provider 6 | ||||||
| DIEBOLD NIXDORF HOLDING GERMANY GMBH | ||||||
| By: |
/s/ Olaf Heyden |
|||||
| Name: |
Olaf Heyden | |||||
| Title: |
Managing Director | |||||
2
As Security Provider 7
| DIEBOLD NIXDORF LOGISTICS GMBH | ||||||
| By: |
/s/ Christina Wieber |
|||||
| Name: |
Christina Wieber | |||||
| Title: |
Managing Director | |||||
| As Security Provider 8 | ||||||
| WINCOR NIXDORF FACILITY GMBH | ||||||
| By: |
/s/ Jörn Förster |
|||||
| Name: |
Jörn Förster | |||||
| Title: |
Managing Director | |||||
| As Security Provider 9 | ||||||
| DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG | ||||||
| By: |
/s/ Jörn Förster |
|||||
| Name: |
Jörn Förster | |||||
| Title: |
Managing Director | |||||
| As Security Provider 10 | ||||||
| DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH | ||||||
| By: |
/s/ Jörg Kleinschmidt |
|||||
| Name: |
Jörg Kleinschmidt | |||||
| Title: |
Managing Director | |||||
3
As Security Provider 11
| IP MANAGEMENT GMBH | ||||||
| By: |
/s/ Olaf Heyden |
|||||
| Name: |
Olaf Heyden | |||||
| Title: |
Managing Director | |||||
| As Security Provider 12 | ||||||
| DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH | ||||||
| By: |
/s/ Olaf Heyden |
|||||
| Name: |
Olaf Heyden | |||||
| Title: |
Managing Director | |||||
| As Security Provider 13 | ||||||
| DIEBOLD NIXDORF SECURITY GMBH | ||||||
| By: |
/s/ Jörn Förster |
|||||
| Name: |
Jörn Förster | |||||
| Title: |
Managing Director | |||||
| As Security Provider 14 | ||||||
| DIEBOLD NIXDORF OPERATIONS GMBH | ||||||
| By: |
/s/ Michael Schütt |
|||||
| Name: |
Michael Schütt | |||||
| Title: |
Managing Director | |||||
4
As Security Provider 15
| DIEBOLD NIXDORF FINANCE GERMANY GMBH | ||||||
| By: |
/s/ Jörn Förster |
|||||
| Name: |
Jörn Förster | |||||
| Title: |
Managing Director | |||||
| As Security Provider 16 | ||||||
| DIEBOLD NIXDORF AB | ||||||
| By: |
/s/ Rene Lauxtermann |
|||||
| Name: |
Rene Lauxtermann | |||||
| Title: |
Managing Director | |||||
5
Exhibit 10.6
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this “Supplemental Indenture”), dated as of May 31, 2023, by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Guarantors (as defined in the Indenture referred to below) party thereto, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and GLAS Americas LLC, as collateral agent (the “Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Company, the Guarantors, the Trustee, and the Collateral Agent are party to the Amended and Restated Senior Secured Notes Indenture, dated as of December 29, 2022 (the “Indenture”), providing for the issuance of 9.375% Senior Secured Notes due 2025 (the “Notes”);
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company, the Guarantors, the Trustee and the Collateral Agent may amend or supplement the Indenture and the Notes with the consent of the Holders of a majority (or such higher amount as may be required) in aggregate principal amount of the then outstanding Notes (collectively, the “Requisite Consents”);
WHEREAS, pursuant to Section 9.02(a) of the Indenture, the Company desires to amend the definition of “Refinancing Indebtedness” in the Indenture (the “Amendment”) to permit the incurrence of indebtedness to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing;
WHEREAS, as of (or prior to) the date hereof, the Company has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend the Indenture to reflect the Amendment;
WHEREAS, pursuant to Section 9.06 of the Indenture, upon delivery to the Trustee of an Officer’s Certificate to the effect that the Amendment was made in accordance with the provisions of the Indenture, the Trustee shall execute any documents reasonably requested by the Company in order to evidence the Amendment;
WHEREAS, the Trustee has received an Officer’s Certificate and Opinion of Counsel in connection with the Amendment and the Trustee’s execution of this Supplemental Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture to evidence the Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Amendment Regarding Refinancing Indebtedness. Upon this Section 2 becoming operative in accordance with Section 5 below, the definition of “Refinancing Indebtedness” in Section 1.01 of the Indenture is deleted in its entirety and replaced with the following:
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem, defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4) if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5) if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6) Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company or a Guarantor; and
(7) Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness;
provided, however, the foregoing requirements of clauses (1) through (7) above shall not apply to any Indebtedness incurred to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing under applicable Bankruptcy Laws, which any such refinancing is expressly deemed “Refinancing Indebtedness” and permitted hereunder.
3. Costs and Expenses of the Trustee and Collateral Agent. The Company and the Guarantors agree to pay all reasonable out-of-pocket costs and expenses of (i) the Trustee (including the reasonable fees, charges and disbursements of Thompson Hine LLP, as counsel to the Trustee), and (ii) the Collateral Agent (including the reasonable fees, charges and disbursements of White & Case LLP, as counsel to the Collateral Agent), in each case, in connection with the preparation, execution and delivery of this Supplemental Indenture, which amounts, for the avoidance of doubt, shall constitute Obligations under the Indenture and the other Note Documents.
4. Obligations of the Trustee and Collateral Agent. The Trustee and the Collateral Agent are entering into this Supplemental Indenture solely in their respective capacities as Trustee and Collateral Agent under the Indenture and pursuant to the Requisite Consents. The Company and the Guarantors (a) confirm that this Supplemental Indenture imposes no duty on the Trustee and the Collateral Agent to take any action or to exercise any of the powers granted to them (other than as expressly set forth herein) and (b) all rights, protections, indemnities and benefits granted to the Trustee and the Collateral Agent in the Note Documents are hereby reaffirmed with respect to each of their actions taken pursuant to this Supplemental Indenture and incorporated as if fully set forth in this Supplemental Indenture.
5. Effectiveness. This Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Section 2 hereof shall not become operative until the release of the guarantees of the German-domiciled Guarantors under the Indenture, the Superpriority Credit Facility and the 2025 Credit Facility as contemplated by Section 9.02(f) of the Indenture.
6. Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this Supplemental Indenture mutatis mutandis.
7. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
9. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
10. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.
11. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
12. Successors. All agreements of each of the Company, the Guarantors, the Trustee and the Collateral Agent in this Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee and the Collateral Agent in this Supplemental Indenture shall bind their successors.
13. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture does not constitute a novation of the Indenture or the Notes. Nothing in this Supplemental Indenture is intended, or shall be construed, to constitute an accord and satisfaction of any of the Obligations. This Supplemental Indenture shall form a part of the Indenture for all purposes, and each Note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby. From and after the date of this Supplemental Indenture, (a) each reference in the Indenture to “this Indenture,” “hereunder,” “herein,” “hereof” or words of similar import referring to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture) and (b) each reference in the Notes to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture).
[Signature Pages Follow]
| DIEBOLD NIXDORF, INCORPORATED | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Executive Vice President, Chief Legal Officer & Corporate Secretary | ||
| DIEBOLD GLOBAL FINANCE CORPORATION | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD HOLDING COMPANY, LLC | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SST HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| GRIFFIN TECHNOLOGY INCORPORATED | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SELF-SERVICE SYSTEMS | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD NIXDORF CANADA, LIMITED | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD CANADA HOLDING COMPANY INC. | ||
| By: |
/s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD NIXDORF B.V. | ||
| By: |
/s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director | ||
| By: |
/s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL HOLDING B.V. | ||
| By: | /s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: |
/s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF BV | ||
| By: |
/s/ Nancy De Troyer | |
| Name: Nancy De Troyer | ||
| Title: Finance director | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF DUTCH HOLDING B.V. | ||
| By: |
/s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: |
/s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF SOFTWARE PARTNER B.V. | ||
| By: |
/s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SOFTWARE CV | ||
| By: |
/s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Authorized Signatory | ||
| DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. | ||
| By: |
/s/ Hendrik Schouten | |
| Name: Hendrik Schouten | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.A.S. | ||
| By: |
/s/ Octavio Marquez | |
| Name: Octavio Marquez | ||
| Title: President | ||
| DIEBOLD NIXDORF HOLDING GERMANY GMBH | ||
| By: |
/s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| WINCOR NIXDORF INTERNATIONAL GMBH | ||
| By: |
/s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SYSTEMS GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF DEUTSCHLAND GMBH | ||
| By: |
/s/ Frank Johann | |
| Name: Frank Johann | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF LOGISTICS GMBH | ||
| By: |
/s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH | ||
| By: |
/s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| WINCOR NIXDORF FACILITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH | ||
| By: | /s/ Jörg Kleinschmidt | |
| Name: Jörg Kleinschmidt | ||
| Title: Managing Director | ||
| IP MANAGEMENT GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SECURITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF OPERATIONS GMBH | ||
| By: | /s/ Michael Schutt | |
| Name: Michael Schutt | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF FINANCE GERMANY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF S.R.L. | ||
| By: | /s/ Ewa Porebska | |
| Name: Jonathan Leiken | ||
| Title: Director | ||
| DIEBOLD NIXDORF SP. Z O.O. | ||
| By: | /s/ Stanislav Zrcek | |
| Name: Stanislav Zrcek | ||
| Title: Member of the Management Board | ||
| DIEBOLD NIXDORF BPO SP. Z O.O. | ||
| By: | /s/ Adrian Gawrys | |
| Name: Adrian Gawrys | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.L. | ||
| By: | /s/ Antonio Albarrán Rodriguez | |
| Name: Antonio Albarrán Rodriguez | ||
| Title: Director | ||
| DIEBOLD NIXDORF AB | ||
| By: | /s/ René Lauxtermann | |
| Name: René Lauxtermann | ||
| Title: Director | ||
| DIEBOLD NIXDORF (UK) LIMITED | ||
| By: | /s/ Paul Young | |
| Name: Paul Young | ||
| Title: Director | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David A. Schlabach | |
| Name: David A. Schlabach | ||
| Title: Vice President | ||
| GLAS AMERICAS LLC, as Collateral Agent | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
[Signature Page to First Supplemental Indenture (9.375% Senior Secured Notes due 2025)]
Exhibit 10.7
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this “Supplemental Indenture”), dated as of May 31, 2023, by and among Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Dutch Issuer”), Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Guarantors (as defined in the Indenture referred to below) party thereto, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and GLAS Americas LLC, as collateral agent (the “Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Dutch Issuer, the Company, the Guarantors, the Trustee, and the Collateral Agent are party to the Amended and Restated Senior Secured Notes Indenture, dated as of December 29, 2022 (the “Indenture”), providing for the issuance of 9.000% Senior Secured Notes due 2025 (the “Notes”);
WHEREAS, pursuant to Section 9.02 of the Indenture, the Dutch Issuer, the Company, the Guarantors, the Trustee and the Collateral Agent may amend or supplement the Indenture and the Notes with the consent of the Holders of a majority (or such higher amount as may be required) in aggregate principal amount of the then outstanding Notes (collectively, the “Requisite Consents”);
WHEREAS, pursuant to Section 9.02(a) of the Indenture, the Company desires to amend the definition of “Refinancing Indebtedness” in the Indenture (the “Amendment”) to permit the incurrence of indebtedness to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing;
WHEREAS, as of (or prior to) the date hereof, the Company has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend the Indenture to reflect the Amendment;
WHEREAS, pursuant to Section 9.06 of the Indenture, upon delivery to the Trustee of an Officer’s Certificate to the effect that the Amendment was made in accordance with the provisions of the Indenture, the Trustee shall execute any documents reasonably requested by the Company in order to evidence the Amendment;
WHEREAS, the Trustee has received an Officer’s Certificate and Opinion of Counsel in connection with the Amendment and the Trustee’s execution of this Supplemental Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture to evidence the Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Amendment Regarding Refinancing Indebtedness. Upon this Section 2 becoming operative in accordance with Section 5 below, the definition of “Refinancing Indebtedness” in Section 1.01 of the Indenture is deleted in its entirety and replaced with the following:
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem, defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1)(a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4) if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5) if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6) Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company, the Issuer or a Guarantor; and
(7) Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness;
provided, however, the foregoing requirements of clauses (1) through (7) above shall not apply to any Indebtedness incurred to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing under applicable Bankruptcy Laws, which any such refinancing is expressly deemed “Refinancing Indebtedness” and permitted hereunder.
3. Costs and Expenses of the Trustee and Collateral Agent. The Dutch Issuer, the Company and the Guarantors agree to pay all reasonable out-of-pocket costs and expenses of (i) the Trustee (including the reasonable fees, charges and disbursements of Thompson Hine LLP, as counsel to the Trustee), and (ii) the Collateral Agent (including the reasonable fees, charges and disbursements of White & Case LLP, as counsel to the Collateral Agent), in each case, in connection with the preparation, execution and delivery of this Supplemental Indenture, which amounts, for the avoidance of doubt, shall constitute Obligations under the Indenture and the other Note Documents.
4. Obligations of the Trustee and Collateral Agent. The Trustee and the Collateral Agent are entering into this Supplemental Indenture solely in their respective capacities as Trustee and Collateral Agent under the Indenture and pursuant to the Requisite Consents. The Company and the Guarantors (a) confirm that this Supplemental Indenture imposes no duty on the Trustee and the Collateral Agent to take any action or to exercise any of the powers granted to them (other than as expressly set forth herein) and (b) all rights, protections, indemnities and benefits granted to the Trustee and the Collateral Agent in the Note Documents are hereby reaffirmed with respect to each of their actions taken pursuant to this Supplemental Indenture and incorporated as if fully set forth in this Supplemental Indenture.
5. Effectiveness. This Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Section 2 hereof shall not become operative until the release of the guarantees of the German-domiciled Guarantors under the Indenture, the Superpriority Credit Facility and the 2025 Credit Facility as contemplated by Section 9.02(f) of the Indenture.
6. Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this Supplemental Indenture mutatis mutandis.
7. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Waiver of Jury Trial. EACH OF THE DUTCH ISSUER, THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
9. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
10. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.
11. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
12. Successors. All agreements of each of the Dutch Issuer, the Company, the Guarantors, the Trustee and the Collateral Agent in this Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee and the Collateral Agent in this Supplemental Indenture shall bind their successors.
13. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture does not constitute a novation of the Indenture or the Notes. Nothing in this Supplemental Indenture is intended, or shall be construed, to constitute an accord and satisfaction of any of the Obligations. This Supplemental Indenture shall form a part of the Indenture for all purposes, and each Note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby. From and after the date of this Supplemental Indenture, (a) each reference in the Indenture to “this Indenture,” “hereunder,” “herein,” “hereof” or words of similar import referring to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture) and (b) each reference in the Notes to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture).
[Signature Pages Follow]
| DIEBOLD NIXDORF DUTCH HOLDING B.V. | ||
| By: | /s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF, INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Executive Vice President,. Chief Legal Officer & Corporate Secretary | ||
| DIEBOLD GLOBAL FINANCE CORPORATION | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SST HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| GRIFFIN TECHNOLOGY INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SELF-SERVICE SYSTEMS | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD NIXDORF CANADA, LIMITED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD CANADA HOLDING COMPANY INC. | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD NIXDORF B.V. | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL HOLDING B.V. | ||
| By: | /s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF BV | ||
| By: | /s/ Nancy De Troyer | |
| Name: Nancy De Troyer | ||
| Title: Finance director | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF SOFTWARE PARTNER B.V. | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SOFTWARE CV | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Authorized Signatory | ||
| DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. | ||
| By: | /s/ Hendrik Schouten | |
| Name: Hendrik Schouten | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.A.S. | ||
| By: | /s/ Octavio Marquez | |
| Name: Octavio Marquez | ||
| Title: President | ||
| DIEBOLD NIXDORF HOLDING GERMANY GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| WINCOR NIXDORF INTERNATIONAL GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SYSTEMS GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF DEUTSCHLAND GMBH | ||
| By: | /s/ Frank Johann | |
| Name: Frank Johann | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF LOGISTICS GMBH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| WINCOR NIXDORF FACILITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH | ||
| By: | /s/ Jörg Kleinschmidt | |
| Name: Jörg Kleinschmidt | ||
| Title: Managing Director | ||
| IP MANAGEMENT GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SECURITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF OPERATIONS GMBH | ||
| By: | /s/ Michael Schutt | |
| Name: Michael Schutt | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF FINANCE GERMANY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.R.L. | ||
| By: | /s/ Ewa Porebska | |
| Name: Jonathan Leiken | ||
| Title: Director | ||
| DIEBOLD NIXDORF SP. Z O.O. | ||
| By: | /s/ Stanislav Zrcek | |
| Name: Stanislav Zrcek | ||
| Title: Member of the Management Board | ||
| DIEBOLD NIXDORF BPO SP. Z O.O. | ||
| By: | /s/ Adrian Gawrys | |
| Name: Adrian Gawrys | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| DIEBOLD NIXDORF S.L. | ||
| By: | /s/ Antonio Albarrán Rodriguez | |
| Name: Antonio Albarrán Rodriguez | ||
| Title: Director | ||
| DIEBOLD NIXDORF AB | ||
| By: | /s/ René Lauxtermann | |
| Name: René Lauxtermann | ||
| Title: Director | ||
| DIEBOLD NIXDORF (UK) LIMITED | ||
| By: | /s/ Paul Young | |
| Name: Paul Young | ||
| Title: Director | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
| U.S. BANK TRUST COMPANY, NATIONAL | ||
| ASSOCIATION, as Trustee | ||
| By: | /s/ David A. Schlabach | |
| Name:David A. Schlabach | ||
| Title: Vice President | ||
| GLAS AMERICAS LLC, as Collateral Agent | ||
| By: |
/s/ Jeffrey Schoenfeld | |
| Name:Jeffrey Schoenfeld | ||
| Title: Vice President | ||
[Signature Page to First Supplemental Indenture (9.000% Senior Secured Notes due 2025)]
Exhibit 10.8
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this “Supplemental Indenture”), dated as of May 31, 2023, by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Guarantors (as defined in the Indenture referred to below) party thereto, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and GLAS Americas LLC, as collateral agent (the “Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Company, the Guarantors, the Trustee, and the Collateral Agent are party to the Senior Secured PIK Toggle Notes Indenture, dated as of December 29, 2022 (the “Indenture”), providing for the issuance of 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “Notes”);
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company, the Guarantors, the Trustee and the Collateral Agent may amend or supplement the Indenture and the Notes with the consent of the Holders of a majority (or such higher amount as may be required) in aggregate principal amount of the then outstanding Notes (collectively, the “Requisite Consents”);
WHEREAS, pursuant to Section 9.02(a) of the Indenture, the Company desires to amend the definition of “Refinancing Indebtedness” in the Indenture (the “Amendment”) to permit the incurrence of indebtedness to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing;
WHEREAS, as of (or prior to) the date hereof, the Company has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend the Indenture to reflect the Amendment;
WHEREAS, pursuant to Section 9.06 of the Indenture, upon delivery to the Trustee of an Officer’s Certificate to the effect that the Amendment was made in accordance with the provisions of the Indenture, the Trustee shall execute any documents reasonably requested by the Company in order to evidence the Amendment;
WHEREAS, the Trustee has received an Officer’s Certificate and Opinion of Counsel in connection with the Amendment and the Trustee’s execution of this Supplemental Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture to evidence the Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Amendment Regarding Refinancing Indebtedness. Upon this Section 2 becoming operative in accordance with Section 5 below, the definition of “Refinancing Indebtedness” in Section 1.01 of the Indenture is deleted in its entirety and replaced with the following:
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1)(a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4) if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5) if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6) Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company or a Guarantor; and
(7) Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness;
provided, however, the foregoing requirements of clauses (1) through (7) above shall not apply to any Indebtedness incurred to refinance the Superpriority Credit Facility pursuant to a debtor-in-possession financing under applicable Bankruptcy Laws, which any such refinancing is expressly deemed “Refinancing Indebtedness” and permitted hereunder.
3. Costs and Expenses of the Trustee and Collateral Agent. The Company and the Guarantors agree to pay all reasonable out-of-pocket costs and expenses of (i) the Trustee (including the reasonable fees, charges and disbursements of Thompson Hine LLP, as counsel to the Trustee), and (ii) the Collateral Agent (including the reasonable fees, charges and disbursements of White & Case LLP, as counsel to the Collateral Agent), in each case, in connection with the preparation, execution and delivery of this Supplemental Indenture, which amounts, for the avoidance of doubt, shall constitute Obligations under the Indenture and the other Note Documents.
4. Obligations of the Trustee and Collateral Agent. The Trustee and the Collateral Agent are entering into this Supplemental Indenture solely in their respective capacities as Trustee and Collateral Agent under the Indenture and pursuant to the Requisite Consents. The Company and the Guarantors (a) confirm that this Supplemental Indenture imposes no duty on the Trustee and the Collateral Agent to take any action or to exercise any of the powers granted to them (other than as expressly set forth herein) and (b) all rights, protections, indemnities and benefits granted to the Trustee and the Collateral Agent in the Note Documents are hereby reaffirmed with respect to each of their actions taken pursuant to this Supplemental Indenture and incorporated as if fully set forth in this Supplemental Indenture.
5. Effectiveness. This Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Section 2 hereof shall not become operative until the release of the guarantees of the German-domiciled Guarantors under the Indenture, the Superpriority Credit Facility and the 2025 Credit Facility as contemplated by Section 9.02(f) of the Indenture.
6. Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this Supplemental Indenture mutatis mutandis.
7. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
9. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
10. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.
11. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
12. Successors. All agreements of each of the Company, the Guarantors, the Trustee and the Collateral Agent in this Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee and the Collateral Agent in this Supplemental Indenture shall bind their successors.
13. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture does not constitute a novation of the Indenture or the Notes. Nothing in this Supplemental Indenture is intended, or shall be construed, to constitute an accord and satisfaction of any of the Obligations. This Supplemental Indenture shall form a part of the Indenture for all purposes, and each Note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby. From and after the date of this Supplemental Indenture, (a) each reference in the Indenture to “this Indenture,” “hereunder,” “herein,” “hereof” or words of similar import referring to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture) and (b) each reference in the Notes to the Indenture shall mean and be a reference to the Indenture as amended, restated, amended and restated, supplemented, waived or otherwise modified (including, without limitation, as it is amended, restated, amended and restated, supplemented, waived or otherwise modified pursuant to this Supplemental Indenture).
[Signature Pages Follow]
| DIEBOLD NIXDORF, INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Executive Vice President, Chief Legal Officer & Corporate Secretary | ||
| DIEBOLD GLOBAL FINANCE CORPORATION | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SST HOLDING COMPANY, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| GRIFFIN TECHNOLOGY INCORPORATED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD SELF-SERVICE SYSTEMS | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: President | ||
| DIEBOLD NIXDORF CANADA, LIMITED | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD CANADA HOLDING COMPANY INC. | ||
| By: | /s/ Jonathan Leiken | |
| Name: Jonathan Leiken | ||
| Title: Vice President and Secretary | ||
| DIEBOLD NIXDORF B.V. | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL HOLDING B.V. | ||
| By: | /s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF BV | ||
| By: | /s/ Nancy De Troyer | |
| Name: Nancy De Troyer | ||
| Title: Finance director | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| DIEBOLD NIXDORF DUTCH HOLDING B.V. | ||
| By: | /s/ Elizabeth Christine Radigan | |
| Name: Elizabeth Christine Radigan | ||
| Title: Managing Director A | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Managing Director B | ||
| DIEBOLD NIXDORF SOFTWARE PARTNER B.V. | ||
| By: | /s/ Michael Engel | |
| Name: Michael Engel | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SOFTWARE CV | ||
| By: | /s/ Hendrik Roelof Schouten | |
| Name: Hendrik Roelof Schouten | ||
| Title: Authorized Signatory | ||
| DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. | ||
| By: | /s/ Hendrik Schouten | |
| Name: Hendrik Schouten | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.A.S. | ||
| By: | /s/ Octavio Marquez | |
| Name: Octavio Marquez | ||
| Title: President | ||
| DIEBOLD NIXDORF HOLDING GERMANY GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| WINCOR NIXDORF INTERNATIONAL GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SYSTEMS GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF DEUTSCHLAND GMBH | ||
| By: | /s/ Frank Johann | |
| Name: Frank Johann | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF LOGISTICS GMBH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH | ||
| By: | /s/ Christina Wieber | |
| Name: Christina Wieber | ||
| Title: Managing Director | ||
| WINCOR NIXDORF FACILITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH | ||
| By: | /s/ Jörg Kleinschmidt | |
| Name: Jörg Kleinschmidt | ||
| Title: Managing Director | ||
| IP MANAGEMENT GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH | ||
| By: | /s/ Olaf Heyden | |
| Name: Olaf Heyden | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF SECURITY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF OPERATIONS GMBH | ||
| By: | /s/ Michael Schutt | |
| Name: Michael Schutt | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF FINANCE GERMANY GMBH | ||
| By: | /s/ Jörn Förster | |
| Name: Jörn Förster | ||
| Title: Managing Director | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| DIEBOLD NIXDORF S.R.L. | ||
| By: | /s/ Ewa Porebska | |
| Name: Jonathan Leiken | ||
| Title: Director | ||
| DIEBOLD NIXDORF SP. Z O.O. | ||
| By: | /s/ Stanislav Zrcek | |
| Name: Stanislav Zrcek | ||
| Title: Member of the Management Board | ||
| DIEBOLD NIXDORF BPO SP. Z O.O. | ||
| By: | /s/ Adrian Gawrys | |
| Name: Adrian Gawrys | ||
| Title: Managing Director | ||
| DIEBOLD NIXDORF S.L. | ||
| By: | /s/ Antonio Albarrán Rodriguez | |
| Name: Antonio Albarrán Rodriguez | ||
| Title: Director | ||
| DIEBOLD NIXDORF AB | ||
| By: | /s/ René Lauxtermann | |
| Name: René Lauxtermann | ||
| Title: Director | ||
| DIEBOLD NIXDORF (UK) LIMITED | ||
| By: | /s/ Paul Young | |
| Name: Paul Young | ||
| Title: Director | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David A. Schlabach | |
| Name: David A. Schlabach | ||
| Title: Vice President | ||
| GLAS AMERICAS LLC, as Collateral Agent | ||
| By: | /s/ Jeffrey Schoenfeld | |
| Name: Jeffrey Schoenfeld | ||
| Title: Vice President | ||
[Signature Page to First Supplemental Indenture (8.50%/12.50% Senior Secured PIK Toggle Notes due 2026)]