Exhibit 4.10
FIFTH AMENDMENT, WAIVER AND CONSENT
THIS FIFTH AMENDMENT, WAIVER AND CONSENT, dated as of February 28, 2002 (this
"Amendment, Waiver and Consent"), amends, and is given with respect to, the
Post-Confirmation Credit Agreement dated as of October 20, 2000, as amended by
the First Amendment dated as of March 14, 2001 (the "First Amendment"), the
Second Amendment and Waiver dated as of July 23, 2001 (the "Second Amendment"),
the Third Amendment and Consent dated as of October 31, 2001 (the "Third
Amendment") and the Fourth Amendment and Consent dated as of February 8, 2002
(the "Fourth Amendment") (as so amended, the "Credit Agreement"), among TOKHEIM
CORPORATION, an Indiana corporation (the "Company"), various subsidiaries
thereof (together with the Company, the "Borrowers"), various financial
institutions as lenders (the "Lenders"), AMSOUTH BANK, as a Lender and as
documentation agent for the Lenders (the "Documentation Agent"), and ABN AMRO
BANK N.V., as a Lender, as issuing lender and as administrative agent for the
Lenders (the "Administrative Agent", and together with the Documentation Agent,
the "Agents").
WHEREAS, an Event of Default under Section 12.1.5 of the Credit Agreement has
occurred and is continuing as a result of the failure of the Borrowers to comply
with the provisions of Sections 10.6.5 and 10.20 of the Credit Agreement (the
"Existing Events of Default");
WHEREAS, the Borrowers have requested that the Lenders (i) waive the Existing
Events of Default, (ii) consent to an extension of the Credit Agreement's
scheduled delivery date for (x) the annual audit report of the Company and its
Subsidiaries in respect of Fiscal Year 2001 and (y) related documentation
required under the Credit Agreement, (iii) agree to amend the EBITDA level in
the Credit Agreement for the Computation Period ended November 30, 2001 and (iv)
agree to certain other modifications and amendments, as hereinafter set forth;
and
WHEREAS the Lenders are willing to agree to such waiver, give such consent and
agree to such modifications and amendments, but only on and subject to the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto agree as follows:
SECTION 1. WAIVER. In reliance on the representations and warranties set forth
in this Amendment, Waiver and Consent and subject to satisfaction of the
conditions set forth in Section 7 hereof, effective as of the Effective Date,
the Lenders hereby (i) waive the Existing Event of Default under Section 10.20
resulting from failure of the Borrowers to comply with the limitations of
subparagraph (o)(ii) thereof (but solely to the extent such Existing Event of
Default shall not exist after giving effect to the amendment set forth in
Section 3(g) hereof) and (ii) waive, but solely for the period commencing on the
Effective Date and ending on April 15, 2002, the Existing Event of Default under
Section 10.6.5 resulting from the failure of the Borrowers to comply therewith
for the Computation Period ended on February 28, 2002, it being understood and
agreed that the waiver under this subpart (ii) is solely a limited waiver and
shall expire on April 15, 2002 without further deed or act of any party, and
that thereafter such Event of Default shall exist as if such waiver had not
occurred and the rights and remedies of the Agents and the Lenders arising as a
result thereof under the Credit Agreement and the other Loan Documents shall not
be prejudiced and are hereby expressly preserved.
SECTION 2. CONSENT. In reliance on the representations and warranties set forth
in this Amendment, Waiver and Consent and subject to satisfaction of the
conditions set forth in Section 7 hereof, effective as of the Effective Date:
(a) The Lenders hereby consent to the extension of the date by which the
Borrowers are required, pursuant to Section 10.1.1 of the Credit
Agreement, to deliver to the Administrative Agent (x) the annual audit
report of the Company and its Subsidiaries in respect of Fiscal Year
2001, audited by the Company's independent accountants, and (y) the
written statement from such accountants described in such subsection,
from February 28, 2002 to April 15, 2002; provided that any failure by
the Borrowers to deliver such audited report and statement by April
15, 2002 shall constitute an Event of Default under the Credit
Agreement on such date, without any notice, additional passage of time
or other grace or cure period whatsoever; and
(b) The Lenders hereby agree to modify their consent given in subparagraph
(a) of Section 1 of the Third Amendment as follows: (i) the reference
therein to a maturity date of "October 31, 2006" shall instead refer
to a maturity date of "April 30, 2007" and (ii) the phrase therein
"repaid in full" shall instead read "repaid or otherwise satisfied in
full".
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT. In reliance upon the representations
and warranties set forth in this Amendment, Waiver and Consent and subject to
satisfaction of the conditions set forth in Section 7 hereof, the Borrower and
the Lenders hereby agree to the following amendments:
(a) The definition of "Net Cash Proceeds" set forth in Section 1.1
("Definitions") of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of subparagraph (b) thereof, (ii)
replacing the period at the end of subparagraph (c) thereof with a
semi-colon followed by the word "and" and (iii) adding a new
subparagraph (d) thereof to read in its entirety as follows:
"(d) with respect to the receipt by the Company of any Schlumberger
Proceeds, net of direct legal costs and expenses incurred in
connection therewith.
(b) The following definition is hereby added to Section 1.1
("Definitions") of the Credit Agreement:
"`Schlumberger Proceeds' means cash proceeds received by the Company
or any Subsidiary in connection with claims or counterclaims by the
Company or by any Subsidiary against Schlumberger Limited or any
affiliate thereof (it being understood that any such cash proceeds
received in any arbitration or proceeding shall be net of any
recoveries paid by the Company or any Subsidiary to Schlumberger
Limited or its affiliate in such arbitration or proceeding)."
(c) Section 6.2.2 ("Mandatory Prepayments") is hereby amended as follows:
(i) to add a new subclause (a)(vii) thereof to read as follows:
"(vii) Concurrently with the receipt of any Net Cash Proceeds
from any Schlumberger Proceeds, in an amount equal to 100% of
such Net Cash Proceeds."; and
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(ii) to restate the second full paragraph of clause (a) thereof to
read in its entirety as follows:
"Subject to the second sentence of Section 7.2, all Designated
Proceeds shall be applied to the Loans as follows: (1) as to any
Designated Proceeds comprising the first $20,000,000 of
Designated Proceeds received by the Company or its Subsidiaries
in the aggregate after February 28, 2002 (all such Designated
Proceeds, "Primary Proceeds"), to prepay Tranche A Term Loans and
(2) as to all Designated Proceeds other than Primary Proceeds, if
any, first, 50% to prepay the Tranche A Term Loans and 50% to
prepay the Tranche B Term Loans until all Term Loans are paid in
full, and second, after payment in full of the Term Loans, to
prepay the Special Loans until the Special Loans are paid in
full; provided, however, that, in the case of any Mandatory
Prepayment Event described in clause (i), (ii) or (vii) above,
the Designated Proceeds of such Mandatory Prepayment Event shall
be applied first to prepay the Revolving Loans (without a
concurrent reduction in the Revolving Commitment Amount) (x) in
the case of any Mandatory Prepayment Event described in clause
(i) or (ii), to the extent necessary to eliminate any Borrowing
Base Shortfall caused by such Mandatory Prepayment Event and (y)
in the case of any Mandatory Prepayment Event described in clause
(vii), in an amount (provided it is a positive number) equal to
(A) $10,000,000 minus (B) the excess, if any, of the maximum
amount available to be borrowed under Section 2.1.1 over the
Revolving Outstandings, and, in each case, to the extent of such
application to the Revolving Loans, such Designated Proceeds
shall be disregarded for purposes of calculating the amount of
Primary Proceeds received under clause (1) of this sentence (and
after such application to the Revolving Loans, such Designated
Proceeds shall be applied as set forth in clauses (1) and (2) of
this sentence).";
(d) Section 10.1.1 ("Annual Report") of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"10.1.1 Annual Report.Promptly when available and (except for the
annual report in respect of Fiscal Year 2001, which report shall be
due on April 15, 2002) in any event within 90 days after the close of
each Fiscal Year (or such earlier date as such information shall be
required to be filed with the SEC or any similar governmental
authority): (a) a copy of the annual audit report of the Company and
its Subsidiaries for such Fiscal Year, including therein consolidated
balance sheets and statements of operations and cash flows of the
Company and its Subsidiaries as at the end of such Fiscal Year,
audited by Ernst & Young LLP or other independent auditors of
recognized standing selected by the Company and reasonably acceptable
to the Required Lenders, which audit report shall be unqualified as to
going concern or scope of audit, shall contain no other material
qualifications or exceptions and shall state that such financial
statements present fairly the financial position of the Company and
its Subsidiaries on a consolidated basis and the results of operations
and cash flows as at the dates and for the periods indicated in
accordance with GAAP consistently applied, together with a written
statement from such independent auditors to the effect that in making
the examination necessary for the signing of such annual audit report
by such independent auditors, nothing came to their attention that
caused them to believe that the Company was not in compliance with any
provision of Section 10.6, 10.7 or 10.9 of this Agreement insofar as
such provision relates to accounting matters or, if something has come
to their attention that caused them to believe that the Company was
not in compliance with any such
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provision, describing such non-compliance in reasonable detail; and
(b) consolidating balance sheets of the Company and its Subsidiaries
as of the end of such Fiscal Year and a consolidating statement of
operations and a consolidated statement of cash flows for the Company
and its Subsidiaries for such Fiscal Year, certified by the Chief
Financial Officer, Controller or Finance Director of the Company.";
(e) Section 10.1.7 of the Credit Agreement is hereby amended to add a new
subsection (d) thereof to read in its entirety as follows:
"(d) By no later than March 29, 2002, a detailed outline of the
Company's proposed plan of recapitalization and restructuring of the
balance sheets of the Company and its Subsidiaries, which outline
shall contain a specific list of steps to achieve such plan and a
timetable showing the dates by which such steps shall be implemented,
all in form and substance satisfactory to the Administrative Agent.";
(f) Section 10.6.5 of the Credit Agreement is hereby amended, effective as
of November 30, 2001, to replace the amount set forth opposite the
date "November 30, 2001" with the amount "$20,400,000"; and
(g) Subparagraph (o) of Section 10.20 is hereby amended by (i) replacing
the amount "$38,900,000" with the amount "$41,100,000" and (ii)
replacing the amount "$4,300,000" with the amount "$4,350,000".
SECTION 4. LOANS, LETTERS OF CREDIT NOT REQUIRED. In consideration of the
waiver, consent and amendments hereinabove set forth, and notwithstanding any
provision to the contrary set forth in the Credit Agreement or any of the other
Loan Documents, each of the Borrowers hereby acknowledges and agrees that: (a)
no Lender is required or otherwise obligated to make, and no Borrower shall
request that any Lender make, any Loan or otherwise extend credit to any
Borrower and (b) the Issuing Lender and the Lenders are not required or
otherwise obligated to issue, and no Borrower shall request that the Issuing
Lender or any Lender issue, any Letters of Credit other than Letters of Credit
(or renewals thereof) issued to renew Letters of Credit outstanding on the date
hereof in accordance with the requirements of Section 2.3 of the Credit
Agreement; except in either case to the extent that after giving effect to such
Loan or issuance of Letter of Credit, the aggregate Revolving Outstandings shall
not exceed the lesser of: (i) $35,831,000 and (ii) the Borrowing Base. This
Section 3 shall amend and restate in its entirety the covenant and agreement of
the parties set forth in Section 3 of the Second Amendment in regard to the
Credit Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents and the
Lenders to enter into this Amendment, Waiver and Consent, the Borrowers, jointly
and severally, represent and warrant (which representations and warranties shall
survive the execution and delivery hereof) to the Agents and the Lenders that,
after giving effect to this Amendment, Waiver and Consent:
(a) the representations and warranties in the Credit Agreement and the
other Loan Documents are true and correct in all material respects on
and as of the Effective Date with the same effect as if made on and as
of the Effective Date (except to the extent relating solely to an
earlier date, in which case they were true and correct as of such
earlier date);
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(b) no Event of Default or Unmatured Event of Default will exist after
giving effect to this Amendment, Waiver and Consent;
(c) the execution and delivery by the Borrowers of this Amendment, Waiver
and Consent and the performance by the Borrowers of their obligations
under the Credit Agreement and the other Loan Documents (i) are within
the corporate or limited liability company, as applicable, powers of
each Borrower, (ii) have been duly authorized by all necessary
corporate or limited liability company action, as applicable, (iii)
have received all necessary approvals from all governmental
authorities having jurisdiction over any Borrower and (iv) do not and
will not conflict with any provision (x) of any law, rule, regulation,
requirement, administrative order, decree or agreement that is binding
on the Company or any of its Subsidiaries or to which any of their
property is subject or (y) of the certificate of incorporation or
bylaws or other organizational documents of any Borrower;
(d) the Credit Agreement and the other Loan Documents are the legal, valid
and binding obligations of each Borrower, enforceable against such
Borrower in accordance with their terms, subject to bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject to general principles of equity
(regardless of whether considered in a proceeding at law or in
equity);
(e) as of the Effective Date,
(i) the authorized capital stock of the Company consists solely of
30,000,000 shares of Common Stock and 5,000,000 Special Shares;
of the Special Shares, as of the Fifth Amendment Effective Date,
1,700,000 shares of ESOP Preferred Stock have been designated and
25,000 shares of Lender Preferred have been designated. Of the
authorized capital stock of the Company (assuming no Warrant is
exercised), 4,127,915 shares of Common Stock, 960,000 (including
treasury shares) shares of ESOP Preferred Stock (convertible to
Common Stock pursuant to the terms of the Restated Charter) and
10,000 shares of Lender Preferred are issued and outstanding. All
of such outstanding capital stock is validly issued, fully paid
and nonassessable and has been issued in compliance with all
applicable securities laws. Furthermore, the outstanding warrants
to purchase Common Stock of the Company consist solely of (x)
678,334 Series A Warrants to purchase shares of Common Stock, no
par value, at the exercise price of $0.01; (y) 555,556 Series B
Warrants to purchase shares of Common Stock, no par value, at the
exercise price of $30.00; and (z) 549,451 Series C Warrants to
purchase shares of Common Stock, no par value, at the exercise
price of $49.46; and
(ii) except as set forth on Schedule 9.24 to the Credit Agreement and
except for the Warrants, the Lender Preferred and the ESOP
Preferred Stock, there are no existing options, convertible
securities, warrants, calls, pledges, transfer restrictions
(except restrictions imposed by federal and state securities
laws), liens, rights of first offer, rights of first refusal,
antidilution provisions or commitments of any character created
by or binding upon the Company or to which the Company is a party
relating to any issued or unissued shares of capital stock of the
Company. Except for the Warrants, the Lender Preferred and the
ESOP Preferred Stock, there are no preemptive or other
preferential rights
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applicable to the issuance and sale of equity securities (or
securities convertible or exercisable into or exchangeable for
equity securities) of the Company;
(f) as of February 28, 2002, (i) the aggregate outstanding principal
balance of the Tranche A Term Loans is $33,087,129.43, (ii) the
aggregate outstanding principal balance of the Tranche B Term Loans is
$100,668,187.44, (iii) the aggregate outstanding principal balance of
the Special Loans is $124,147,189.00 and (iv) the aggregate Revolving
Outstandings are $30,537,401.14, including the Stated Amount of all
Letters of Credit in the aggregate amount of $2,537,401.14; and
(g) the obligation of the Borrowers and the other Loan Parties to repay
the Loans and the other obligations under the Loan Documents are
absolute and unconditional, and there exists no right of setoff or
recoupment, counterclaim or defense of any nature whatsoever to
payment of such obligations.
SECTION 6. LIMITED AMENDMENT, WAIVER AND CONSENT. This Amendment, Waiver and
Consent shall be limited precisely as written and shall not be deemed (i) to be
an amendment, waiver or modification of, or a consent granted pursuant to, any
other term or condition of the Credit Agreement, any Loan Document or any of the
instruments or agreements referred to in such documents, or, except as expressly
set forth in Section 1 above, a waiver of any Unmatured Event of Default or
Event of Default under the Credit Agreement, whether or not known to any of the
Agents or the Lenders or (ii) to prejudice any other right or rights that the
Agents or the Lenders may now or in the future have under or in connection with
the Credit Agreement, any other Loan Document or any instruments or agreements
referred to therein.
SECTION 7. EFFECTIVENESS. The waiver set forth in Section 1 above, the consents
set forth in Section 2 above and the amendments and agreements set forth in
Section 3 and Section 4 above shall become effective as of the date hereof (the
"Effective Date"), subject to satisfaction of the following conditions (unless
waived in writing by the Administrative Agent or the requisite Lenders pursuant
to the Credit Agreement, as the case may be):
(a) receipt by the Administrative Agent of:
(i) counterparts of this Amendment, Waiver and Consent fully
executed by the Borrowers and the requisite Lenders pursuant to
the Credit Agreement;
(ii) unaudited consolidated and consolidating balance sheets of the
Company and its Subsidiaries for the Fiscal Quarter and the
Fiscal Year ended November 30, 2001, together with (x)
unaudited consolidated statements of operations and cash flows
for such Fiscal Quarter and Fiscal Year, (y) a comparison with
the corresponding periods of Fiscal Year 2000 and (z) a
comparison with the corresponding periods of the Budget for
Fiscal Year 2001, all certified by the Chief Financial Officer,
Controller or Finance Director of the Company;
(iii) a counterpart of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit 1 hereto, fully executed
by each Loan Party; and
(iv) such other documents as the Administrative Agent or any Lender
may reasonably request;
6
(b) all legal matters in connection with this Amendment, Waiver and
Consent, the Credit Agreement and the other Loan Documents shall be
reasonably satisfactory to Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel
for the Administrative Agent;
(c) in immediately available funds, payment of all outstanding amounts
that have been invoiced by or on behalf of the Administrative Agent
and unpaid as of the date hereof with respect to all reimbursable
fees, charges or expenses payable in accordance with the terms and
provisions of the Credit Agreement and the other Loan Documents,
including, without limitation, all Attorney Costs of Xxxxxxxx Chance
Xxxxxx & Xxxxx LLP, counsel for the Administrative Agent, all fees and
disbursements of FTI Xxxxxxxx & Xxxxx, financial advisor to such
counsel, and all amounts due and payable pursuant to Section 7.5; and
(d) upon the effectiveness of this Amendment, Waiver and Consent, (i) the
representations and warranties in this Amendment, Waiver and Consent
are true and correct in all material respects on and as of the
Effective Date, (ii) no Event of Default shall have occurred and be
continuing and (iii) no Unmatured Event of Default shall occur or be
continuing.
Except as provided in Section 8 below, this Amendment, Waiver and Consent shall
be of no force and effect if the preceding conditions have not been satisfied by
April 4, 2002.
For purposes of determining compliance with the conditions specified in this
Section 7, each Lender that has executed this Amendment, Waiver and Consent
shall be deemed to have consented to, approved or accepted, or to be satisfied
with, each document or other matter either sent, or made available for
inspection, by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Administrative Agent and the
requisite Lenders pursuant to the Credit Agreement.
SECTION 8. MISCELLANEOUS.
8.1 Continuing Effectiveness, etc. The Credit Agreement and the other Loan
Documents shall remain in full force and effect after giving effect to this
Amendment and are hereby ratified and confirmed in all respects. After the
Effective Date, all references to the "Credit Agreement" or similar terms in the
Credit Agreement, the Notes, each other Loan Document and any similar document
shall refer to the Credit Agreement as hereby amended and as previously amended,
modified or supplemented. This Amendment, Waiver and Consent shall constitute a
Loan Document as defined in the Credit Agreement, and the provisions of this
Amendment, Waiver and Consent may be amended, modified or supplemented, or any
provision hereof waived, only in accordance with and subject to the provisions
of the Credit Agreement.
8.2 Reaffirmation of Security Interest. Each of the Borrowers hereby
reaffirms as of the date hereof each and every security interest and lien
granted in favor of the Administrative Agent and the Lenders under the Loan
Documents and agrees and acknowledges that such security interests and liens
shall continue from and after the date hereof and shall remain in full force and
effect from and after the date hereof, in each case after giving effect to the
Credit Agreement as amended by this Amendment, Waiver and Consent, and the
obligations secured thereby and thereunder shall include Borrowers' obligations
under the Credit Agreement as amended by this Amendment, Waiver and Consent.
Each such reaffirmed security interest and lien remains and shall continue to
remain in full force and effect and is hereby in all respects ratified and
confirmed.
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8.3 Further Assurances. Each of the Loan Parties expressly acknowledges and
agrees (i) to enter into such other or further documents, and to take such other
or further actions that may be necessary, or, in the opinion of the
Administrative Agent, desirable, to perfect, preserve or protect the liens and
security interests created under the Loan Documents and (ii) to grant liens on
such other or further property or assets of the Loan Parties not currently
encumbered to secure all obligations of the Loan Parties as the Administrative
Agent may require; provided that no Loan Party shall have any obligation to
grant liens on any such other or further property to the extent that such Loan
Party can demonstrate, to the reasonable satisfaction of the Administrative
Agent, that the granting of such lien would have a material and adverse tax
consequence to the Loan Parties.
8.4 Counterparts. This Amendment, Waiver and Consent may be executed in any
number of counterparts and by the different parties on separate counterparts.
Each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Amendment, Waiver and
Consent. Delivery of an executed counterpart of a signature page of this
Amendment, Waiver and Consent by facsimile shall be as effective as delivery of
a manually executed counterpart of this Amendment, Waiver and Consent.
8.5 Expenses. The Company agrees that its obligations set forth in Section
14.6 of the Credit Agreement to pay the reasonable out-of-pocket costs and
expenses of the Administrative Agent (including Attorney Costs) shall extend to
the preparation, execution and delivery of this Amendment, Waiver and Consent
and any other documentation contemplated hereby (whether or not this Amendment,
Waiver and Consent becomes effective or the transactions contemplated hereby are
consummated), including, but not limited to, the reasonable fees and
disbursements of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel for the
Administrative Agent, and FTI Xxxxxxxx & Xxxxx, financial advisor to such
counsel.
8.6 GOVERNING LAW. THIS AMENDMENT, WAIVER AND CONSENT SHALL BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE WHOLLY PERFORMED WITHIN THE STATE OF NEW YORK.
8.7 Successors and Assigns. This Amendment, Waiver and Consent shall be
binding upon the Borrowers, the Lenders and the Agents and their respective
successors and assigns and shall inure to the benefit of the Borrowers, the
Lenders and the Agents and their respective successors and assigns; provided
that no Borrower shall have any right to assign this Amendment, Waiver and
Consent except to the extent permitted by the first sentence of Section 14.9.1
of the Credit Agreement.
8.8 Consultation with Advisors. The Loan Parties acknowledge that they have
consulted with counsel and with such other experts and advisors as they have
deemed necessary in connection with the negotiation, execution and delivery of
this Amendment, Waiver and Consent. This Amendment, Waiver and Consent shall be
construed without regard to any presumption or any rule requiring that it be
construed against the party causing this Amendment, Waiver and Consent or any
part hereof to be drafted.
8.9 Entire Agreement. This Amendment, Waiver and Consent sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in this Amendment,
Waiver and Consent, no representations, warranties or commitments, express or
implied, have been made by any party to any other party with respect to the
subject matter of this Amendment, Waiver and Consent. None of the terms or
conditions of this Amendment, Waiver and Consent may be changed, modified,
waived or canceled, orally or otherwise, except as provided in the Credit
Agreement.
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8.10 Enforceability. Should any one or more of the provisions of this
Amendment, Waiver and Consent be determined to be illegal or unenforceable as to
one or more of the parties hereto, all other provisions nevertheless shall
remain effective and binding on the parties hereto.
8.11 Invalidity; Severability. Whenever possible, each provision of this
Amendment, Waiver and Consent shall be interpreted in such manner as to be
effective and valid under all applicable laws, rules and regulations. Any
provision of this Amendment, Waiver and Consent that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.12 Headings. The headings of this Amendment, Waiver and Consent are for
the purpose of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment, Waiver and Consent.
8.13 Definitions. Capitalized terms used in this Amendment, Waiver and
Consent that are not defined herein but are defined in the Credit Agreement
shall have the meaning given to such terms in the Credit Agreement.
SECTION 9. RELEASE OF CLAIMS. EACH BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT
IT DOES NOT HAVE ANY DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF THE LIABILITY OF SUCH BORROWER TO REPAY ANY AGENT
OR ANY LENDER AS PROVIDED IN THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM ANY AGENT OR
ANY LENDER OR ANY OF THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENTS AND THE LENDERS, AND EACH AGENT'S AND EACH LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, MATURED
OR UNMATURED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW
OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT, WAIVER AND CONSENT IS EXECUTED, THAT SUCH BORROWER MAY NOW OR
HEREAFTER HAVE AGAINST ANY SUCH AGENT OR LENDER, AND SUCH AGENT'S OR LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATION OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE EXERCISE
OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
NEGOTIATION AND EXECUTION OF THIS AMENDMENT, WAIVER AND CONSENT. THE RELEASES
AND DISCHARGES IN THIS SECTION 9 SHALL BE EFFECTIVE REGARDLESS OF WHETHER THE
CONDITIONS TO THE EFFECTIVENESS OF THIS AMENDMENT, WAIVER AND CONSENT ARE
SATISFIED AND REGARDLESS OF ANY OTHER EVENT THAT MAY OCCUR OR NOT OCCUR AFTER
THE DATE HEREOF.
[Remainder of page intentionally left blank; signatures on following pages.]
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Delivered as of the day and year first above written.
TOKHEIM CORPORATION
By
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Title President and CEO
By
--------------------------------------
Title General Counsel and Secretary
GASBOY INTERNATIONAL, INC.
By
--------------------------------------
Title President
TOKHEIM INVESTMENT CORP.
By
--------------------------------------
Title President
MANAGEMENT SOLUTIONS, INC.
By
--------------------------------------
Title General Manager
SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
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Title President
TOKHEIM SERVICES LLC
By
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Title Manager
TOKHEIM RPS, LLC
By
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Title Manager
SIGNATURE PAGE TO TOKHEIM FIFTH AMENDMENT AND CONSENT
ABN AMRO BANK N.V., as Administrative
Agent, as Issuing Lender and as a Lender
By
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Title
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By
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Title
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AMSOUTH BANK, as Documentation Agent and
as a Lender
By
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Title
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BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as a Lender
By
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Title
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By
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Title
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CREDIT AGRICOLE INDOSUEZ, as a Lender
By
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Title
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By
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Title
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BEAR, XXXXXXX & CO., INC., as a Lender
By
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Title
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BANKERS TRUST COMPANY, as a Lender
By
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Title
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SIGNATURE PAGE TO TOKHEIM FIFTH AMENDMENT AND CONSENT
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By
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Title
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XXXXX XXXXX SENIOR INCOME TRUST, as a
Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
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Title
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OXFORD STRATEGIC INCOME FUND, as a Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
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Title
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
FUND, as a Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
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Title
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CREDIT INDUSTRIEL ET COMMERCIAL, as a
Lender
By
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Title
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By
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Title
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FINOVA CAPITAL CORPORATION, as a Lender
By
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Title
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SIGNATURE PAGE TO TOKHEIM FIFTH AMENDMENT AND CONSENT
BANK PEKAO SA (FORMERLY KNOWN AS BANK
POLSKA KASA OPIEKI S.A., NEW YORK
BRANCH), as a Lender
By
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Title
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OCTAGON INVESTMENT PARTNERS II, LLC, as a
Lender
By
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Title
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OAKTREE CAPITAL MANAGEMENT, LLC, as agent
and on behalf of certain funds and
accounts, as a Lender
By
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Title
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ARES LEVERAGED INVESTMENT FUND II, L.P.,
as a Lender
By: ARES Management II, L.P., its General
Partner
By
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Title
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WHIPPOORWILL/TOKHEIM OBLIGATIONS
TRUST-2000, as a Lender
By: Whippoorwill Associates,
Incorporated, as its investment
representative and advisor
By
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Title
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BARCLAYS BANK PLC, as a Lender
By
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Title
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XXXXXXX XXXXX CREDIT PARTNERS L.P., as a
Lender
By
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Title
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SIGNATURE PAGE TO TOKHEIM FIFTH AMENDMENT AND CONSENT
EXHIBIT 1
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
February 28, 2002
ABN AMRO Bank N.V., as Administrative Agent
and the other parties
to the Credit Agreement
referred to below
Re: Reaffirmation of Loan Documents
Ladies and Gentlemen:
Each of the undersigned acknowledges that the Borrowers, the Lenders and
the Agents have executed the Fifth Amendment, Waiver and Consent dated as of the
date hereof (the "Amendment, Waiver and Consent") given under the
Post-Confirmation Credit Agreement dated as of October 20, 2000 (as amended and
as the same may be further amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"). Capitalized terms not otherwise defined herein
shall have the meanings given to such terms in the Credit Agreement.
Each of the undersigned hereby reaffirms as of the date hereof each and
every security interest and lien granted in favor of the Administrative Agent
and the Lenders under the Loan Documents and agrees and acknowledges that such
security interests and liens shall continue from and after the date hereof and
shall remain in full force and effect from and after the date hereof, in each
case after giving effect to the Credit Agreement as amended by the Amendment,
Waiver and Consent, and the obligations secured thereby and thereunder shall
include Borrowers' obligations under the Credit Agreement as amended by the
Amendment, Waiver and Consent. Each such reaffirmed security interest and lien
remains and shall continue to remain in full force and effect and is hereby in
all respects ratified and confirmed.
Each of the undersigned hereby (i) confirms that each Loan Document to
which such undersigned is a party remains in full force and effect after giving
effect to the effectiveness of the Amendment, Waiver and Consent, (ii)
acknowledges and agrees that its obligations under the Loan Documents are
absolute and unconditional, and that it does not have any right of setoff,
recoupment, claim, counterclaim or defense of any kind or nature whatsoever that
can be asserted to reduce or eliminate such obligations or to seek affirmative
relief or damages of any kind or nature from any Agent or any Lender, or any of
their predecessors, agents, employees, successors and assigns, (iii) reaffirms
and admits the validity and enforceability of the Loan Documents and the Liens
in the Collateral granted pursuant to the Loan Documents or otherwise and (iv)
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE AGENTS AND THE
LENDERS, AND EACH AGENT'S AND LENDER'S PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, MATURED OR UNMATURED, SUSPECTED OR UNSUSPECTED,
FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR
IN PART ON OR BEFORE THE DATE THE AMENDMENT, WAIVER AND CONSENT IS EXECUTED,
THAT IT MAY NOW OR HEREAFTER HAVE AGAINST ANY SUCH AGENT OR LENDER, OR SUCH
EXHIBIT 1
AGENT'S OR LENDER'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF
ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAW OR REGULATION, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE
EXERCISE OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND NEGOTIATION AND EXECUTION OF THE AMENDMENT, WAIVER AND CONSENT. THE
RELEASES AND DISCHARGES IN THIS LETTER AGREEMENT SHALL BE EFFECTIVE REGARDLESS
OF WHETHER THE CONDITIONS TO THE EFFECTIVENESS OF THE AMENDMENT, WAIVER AND
CONSENT ARE SATISFIED AND REGARDLESS OF ANY OTHER EVENT THAT MAY OCCUR OR NOT
OCCUR AFTER THE DATE HEREOF.
This letter agreement may be signed in counterparts and by the various
parties hereto on separate counterparts. Each such counterpart shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same letter agreement. Delivery of an executed counterpart of a signature
page of this letter agreement by facsimile shall be as effective as delivery of
a manually executed counterpart of this letter agreement.
This letter agreement shall be governed by the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State.
TOKHEIM CORPORATION
By
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Title President and CEO
By
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Title General Counsel and Secretary
GASBOY INTERNATIONAL, INC.
By
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Title President
TOKHEIM INVESTMENT CORP.
By
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Title President
MANAGEMENT SOLUTIONS, INC.
By
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Title General Manager
SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
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Title President
EXHIBIT 1--Page 2
TOKHEIM SERVICES LLC
By
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Title Manager
TOKHEIM RPS, LLC
By
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Title Manager
EXHIBIT 1--Page 3
