SIXTH AMENDMENT AND WAIVER
THIS SIXTH AMENDMENT AND WAIVER, dated as of June 7, 2002 (this "Amendment
and Waiver"), 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"),
the Fourth Amendment and Consent dated as of February 8, 2002 (the "Fourth
Amendment"), and the Fifth Amendment, Waiver and Consent dated as of
February 28, 2002 (the "Fifth Amendment"; such Post-Confirmation Credit
Agreement as so amended, the "Credit Agreement"), among TOKHEIM
CORPORATION, an Indiana corporation (the "Company"), and various
subsidiaries thereof as borrowers (the Company and such subsidiaries
together, 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, pursuant to the Fifth Amendment and that certain Waiver and
Consent dated as of April 15, 2002, as amended (the "Waiver and Consent"),
the Lenders waived, through June 15, 2002, the EBITDA Event of Default (as
defined in the Waiver and Consent) provided, among other things, the
Borrowers executed, by no later than June 7, 2002, a binding term sheet
that set forth the material terms of the Company's plan of recapitalization
and restructuring acceptable in form and substance to the Administrative
Agent;
WHEREAS, the agreements and undertakings of the Company contained in
Section 7 hereof set forth the material terms of a binding plan of
recapitalization and restructuring acceptable to the Administrative Agent;
WHEREAS, the Borrowers have requested that the Lenders agree to certain
other matters, including, without limitation, waiver of compliance by the
Borrowers with the financial covenants set forth in Sections 10.6.1 through
10.6.5 of the Credit Agreement, and the Lenders are willing to agree to
such other matters, as 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. WAIVERS. In reliance on the representations and warranties set
forth in this Amendment and Waiver and subject to satisfaction of the
conditions set forth in the first sentence of Section 6 hereof, the Lenders
hereby waive, effective as of May 31, 2002, for the Computation Period
ending February 28, 2002 through the Computation Period ending August 31,
2002, inclusive, compliance by the Borrowers with Sections 10.6.1 through
10.6.5, inclusive, of the Credit Agreement; provided that commencing with
the Computation Period ending November 30, 2002 and thereafter all of the
covenants and provisions referred to in this Section 1 shall apply to and
be effective against the Loan Parties, and all rights, privileges and
remedies of the Agents and the Lenders relating thereto under the Credit
Agreement and the other Loan Documents shall be fully effective and
enforceable.
SECTION 2. LOANS, LETTERS OF CREDIT NOT REQUIRED. In consideration of the
waivers set forth in Section 1 above, 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, and no Borrower shall
request that any Lender, (i) make any additional Loans or (ii) otherwise
extend any additional credit to any Borrower, (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; and (c) from
and after the Effective Date, in addition to and not in lieu of any
additional limitations thereon in the Credit Agreement, the Revolving Loans
shall not exceed the amount of the Revolving Outstandings as of the
Effective Date less any amounts thereof repaid by the Borrowers (including,
without limitation, any amounts repaid on the Revolving Loans as a result
of any Mandatory Prepayment Event, including payment of Schlumberger
Proceeds, pursuant to Section 6.2.2(a)). This Section 2 shall amend and
restate in its entirety the covenant and agreement of the parties set forth
in Section 4 of the Fifth Amendment.
SECTION 3. AMENDMENT. In reliance on the representations and warranties set
forth in this Amendment and Waiver, and subject to satisfaction of the
conditions set forth in Section 6 hereof, the Borrowers and, by execution
and delivery of a Consent in the form of Exhibit 1 hereto, each of the
Tranche B Term Lenders hereby agree that Section 4.2 of the Credit
Agreement shall be amended to add the following sentence at the end
thereof:
"Notwithstanding the foregoing, all interest which shall accrue on the
Tranche B Term Loans during the period commencing May 25, 2002 and
ending November 30, 2002, inclusive, shall be due and payable on
November 30, 2002."
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents
and the Lenders to enter into this Amendment and Waiver, 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 and Waiver:
(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);
(b) no Event of Default or Unmatured Event of Default will exist
after giving effect to this Amendment and Waiver;
(c) the execution and delivery by the Borrowers of this Amendment and
Waiver 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 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 shares (including treasury 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, anti-dilution 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
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 May 31, 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 $100,668,187.45, (iii) the aggregate outstanding
principal balance of the Special Loans is $129,223,429.62 and
(iv) the aggregate Revolving Outstandings are $35,502,401.14,
including the Stated Amount of all Letters of Credit in the
aggregate amount of $2,502,401.14; 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 5. LIMITED AMENDMENT AND WAIVER. This Amendment and Waiver shall be
limited precisely as written and shall not be deemed (i) except as
expressly set forth in Section 1 or Section 3 above, to be an amendment,
waiver or modification of, or a suspension of compliance with, 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 6. EFFECTIVENESS. The waivers set forth in Section 1 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 and Waiver fully executed by
the Borrowers and the requisite Lenders pursuant to the
Credit Agreement;
(ii) a counterpart of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit 2 hereto, fully
executed by each --------- Loan Party; and
(iii) such other documents as the Administrative Agent or any
Lender may reasonably request;
(b) all legal matters in connection with this Amendment and Waiver,
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 8.5; and
(d) upon the effectiveness of this Amendment and Waiver, (i) the
representations and warranties in this Amendment and Waiver 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.
The amendment set forth in Section 3 hereof shall be effective upon and
subject to both satisfaction of the conditions set forth in the preceding
sentence and receipt by the Administrative Agent of a Consent in the form
of Exhibit 1 hereto signed by each Tranche B Term Lender. The failure of
the amendment set forth in Section 3 hereof to become effective shall not
limit the effectiveness of the other provisions of this Amendment and
Waiver.
Except as provided in Section 9 below, this Amendment and Waiver shall be
of no force and effect if the preceding conditions have not been satisfied
by June 14, 2002.
For purposes of determining compliance with the conditions specified in
this Section 6, each Lender that has executed this Amendment and Waiver
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, but excluding (unless such Lender shall have actually executed
the same) the Consent in the form of Exhibit 1 hereto.
SECTION 7. POST-CLOSING COVENANTS. The Borrowers, jointly and severally,
covenant and agree as follows:
(a) (i) By no later than June 14, 2002, the Company shall retain
an investment banking firm acceptable to the Administrative
Agent, which firm shall promptly develop a plan reasonably
acceptable to the Administrative Agent and the Majority
Lenders to explore all strategic options available to the
Company, including, without limitation, asset dispositions,
refinancings and equity investments (the "Tokheim 2002
Strategic Plan"). The Company shall diligently pursue the
Tokheim 2002 Strategic Plan (it being understood the Company
is not obligated to accept any proposals submitted in
connection with the Tokheim 2002 Strategic Plan), and the
Company and representatives of such investment banking firm
shall meet with (including by conference telephone) and
update the Administrative Agent and the Lender Steering
Committee with respect to developments and progress in
effectuating the Tokheim 2002 Strategic Plan every two weeks
and at such other intervals as shall be requested from time
to time by the Administrative Agent;
(ii) By no later than July 15, 2002, the Company shall provide
copies to the Administrative Agent of its final offering
circular or memorandum in respect of the Tokheim 2002
Strategic Plan;
(iii) By no later than August 15, 2002, the Company shall have
completed the solicitation (and shall have provided copies
to the Administrative Agent) of non-binding proposals from
all interested parties in respect of the Tokheim 2002
Strategic Plan; and
(iv) By no later than September 30, 2002, the Company shall have
completed the solicitation (and shall have provided copies
to the Administrative Agent) of final binding proposals from
all interested parties in respect of the Tokheim 2002
Strategic Plan;
(b) The Company shall, at all times, retain interim or permanent
chief executive and chief financial officers reasonably
acceptable to the Administrative Agent;
(c) Neither the Company nor any Subsidiary shall (i) accept any
settlement of its claims against Schlumberger Limited or (ii)
enter into or consummate any Asset Sale if the Net Cash Proceeds
of such Asset Sale would be in excess of $1,000,000, unless in
each case the terms thereof shall be reasonably acceptable to the
Administrative Agent; and
(d) Neither the Company nor any Subsidiary shall, without the prior
written consent of the Administrative Agent, exercise any
permissive right or other option it may have to effectuate (i)
the termination of the ESOP or (ii) the redemption of any ESOP
Preferred Stock held by the trustee for the ESOP;
it being expressly acknowledged and agreed that any failure to keep,
perform and/or satisfy such undertakings set forth in the foregoing
subsections 7(a)-(d) (x) shall constitute an Event of Default under
the Credit Agreement 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 are hereby expressly preserved and (y) shall
cause the waivers set forth in Section 1 above to become immediately
null and void and such waivers shall be treated as if they were never
granted.
(e) The Borrowers jointly and severally covenant and agree that any
amounts realized by any Borrower or any Subsidiary from any life
insurance policy in connection with (i) settlement of any claim
by a vested participant in the Company's Supplemental Executive
Retirement Plan in excess of the amount of such settlement or
(ii) termination or surrender of any life insurance policy
covering any participant, in each case net of direct costs and
expenses incurred in connection therewith, shall be deemed
Designated Proceeds under Section 6.2.2(a) of the Credit
Agreement, shall be applied as prepayments of the Loans
concurrently with receipt thereof by such Borrower or Subsidiary
and shall be applied to the Loans as set forth in the last
sentence of Section 6.2.2(a) of the Credit Agreement in the same
manner as proceeds received under Section 6.2.2(a)(vii) thereof.
This provision shall be deemed an additional covenant and
agreement of the Borrowers under Section 6.2.2 of the Credit
Agreement and amends and restates in its entirety subsection 6(b)
of the Waiver and Consent. ---------------
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 Waiver 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 supplemented and as previously amended, modified or supplemented.
This Amendment and Waiver shall constitute a Loan Document as defined in
the Credit Agreement, and the provisions of this Amendment and Waiver 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 and
Waiver, and the obligations secured thereby and thereunder shall include
the Borrowers' obligations under the Credit Agreement as amended by this
Amendment and Waiver. 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.
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 and Waiver 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
and Waiver. Delivery of an executed counterpart of a signature page of this
Amendment and Waiver by facsimile shall be as effective as delivery of a
manually executed counterpart of this Amendment and Waiver.
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
and Waiver and any other documentation contemplated hereby (whether or not
this Amendment and Waiver becomes effective or the provisions 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 AND WAIVER 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 and Waiver 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 and
Waiver 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 and Waiver. This Amendment and Waiver shall
be construed without regard to any presumption or any rule requiring that
it be construed against the party causing this Amendment and Waiver or any
part hereof to be drafted.
8.9 Entire Agreement. This Amendment and Waiver 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 and Waiver, 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 and Waiver. None of the
terms or conditions of this Amendment and Waiver may be changed, modified,
waived or canceled, orally or otherwise, except as provided in the Credit
Agreement.
8.10 Enforceability. Should any one or more of the provisions of this
Amendment and Waiver 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 and Waiver shall be interpreted in such manner as to be
effective and valid under all applicable laws, rules and regulations. Any
provision of this Amendment and Waiver 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 and Waiver are for the
purpose of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment and Waiver.
8.13 Definitions. Capitalized terms used in this Amendment and Waiver
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 AND
WAIVER 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 AND WAIVER. THE RELEASES AND
DISCHARGES IN THIS SECTION 9 SHALL BE EFFECTIVE REGARDLESS OF WHETHER THE
CONDITIONS TO THE EFFECTIVENESS OF THIS AMENDMENT AND WAIVER 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.]
Delivered as of the day and year first above written.
TOKHEIM CORPORATION
By
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Title
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By
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Title
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GASBOY INTERNATIONAL, INC.
By
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Title
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TOKHEIM INVESTMENT CORP.
By
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Title
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MANAGEMENT SOLUTIONS, INC.
By
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Title
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SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
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Title
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TOKHEIM SERVICES LLC
By
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Title
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TOKHEIM RPS, LLC
By
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Title
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ABN AMRO BANK N.V., as Administrative Agent,
as Issuing Lender and as a Lender
By
------------------------------------------
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
------------------------------------------
Title
---------------------------------------
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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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
------------------------------------------
Title
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: Xxxxx Xxxxx Management, as Investmen
t Advisor
By
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Title
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CREDIT INDUSTRIEL ET COMMERCIAL, as a Lender
By
------------------------------------------
Title
---------------------------------------
By
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Title
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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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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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EXHIBIT 1
FORM OF TRANCHE B
TERM LENDER CONSENT
Section 3 of the Sixth Amendment and Waiver, dated as of June 7, 2002, with
respect to the Tokheim Post-Confirmation Credit Agreement, dated as of
October 20, 2000, is hereby agreed to by the following Tranche B Term
Lender:
By:__________________________________________________________
Title:_________________________________________________________
Name of Institution:______________________________________________
[please print]
EXHIBIT 2
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
June 7, 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 Amendment and Waiver dated as of the date
hereof (the "Amendment and Waiver") 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
supplemented by the Amendment and Waiver, and the obligations secured
thereby and thereunder shall include Borrowers' obligations under the
Credit Agreement as amended by the Amendment and Waiver. 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 Amendment and Waiver, (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 AND WAIVER IS EXECUTED, THAT IT MAY NOW OR
HEREAFTER HAVE AGAINST ANY SUCH AGENT OR LENDER, OR 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 THE AMENDMENT
AND WAIVER. THE RELEASES AND DISCHARGES IN THIS LETTER AGREEMENT SHALL BE
EFFECTIVE REGARDLESS OF WHETHER THE CONDITIONS TO THE EFFECTIVENESS OF THE
AMENDMENT AND WAIVER 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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By
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GASBOY INTERNATIONAL, INC.
By
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TOKHEIM INVESTMENT CORP.
By
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MANAGEMENT SOLUTIONS, INC.
By
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SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
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TOKHEIM SERVICES LLC
By
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TOKHEIM RPS, LLC
By
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