Exhibit 4.8
THIRD AMENDMENT AND CONSENT
THIS THIRD AMENDMENT AND CONSENT, dated as of October 31, 2001 (this
"Amendment and Consent"), is given under the Post-Confirmation Credit Agreement
dated as of October 20, 2000 (as amended by the First Amendment dated as of
March 14, 2001, as further amended by the Second Amendment and Waiver dated as
of July 23, 2001, and as further amended hereby, 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, the Borrowers have requested that the Required Lenders consent to
certain matters, as hereinafter set forth, and the Required Lenders are willing
to give such consent, subject to the terms and conditions hereinafter set forth;
and
WHEREAS, the parties desire to amend and modify the provisions of the
Credit Agreement in certain other respects, 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. CONSENT. In reliance on the representations and warranties set
forth in this Amendment and Consent, and subject to satisfaction of the
conditions set forth in Section 5 hereof, the Required Lenders hereby consent,
effective as of the Effective Date, to the following:
(a) Pursuant to Section 10.20(p) ("Investments") of the Credit
Agreement, the making of an Investment by Tokheim RPS, LLC, a wholly-owned
Domestic Subsidiary of the Company ("RPS"), in Tokheim UK Limited ("UK"), a
wholly-owned Foreign Subsidiary of the Company, in the form of a loan by RPS to
UK in the maximum amount of (pound)10,000,000 pursuant to a commercial loan
agreement (the "UK Agreement") in form and substance satisfactory to the
Administrative Agent with a maturity date of October 31, 2006; provided that (i)
the current outstanding debt of (pound)10,000,000 by UK to RPS due October 31,
2001 be repaid in full. The Borrowers, jointly and severally, covenant and agree
that intercompany debt under the UK Agreement shall not be evidenced by any note
or other instrument unless such note or other instrument is assigned and
delivered to the Administrative Agent pursuant to documentation in form and
substance satisfactory to the Administrative Agent; and
(b) Acknowledgment by the Administrative Agent of a lease agreement
in form and substance satisfactory to the Administrative Agent pursuant to which
Tokheim Services LLC, a wholly-owned Domestic Subsidiary of the Company (the
"Lessor") will lease the Company's headquarters located at 00000 Xxxxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx (the "Leased Premises"), including in such lease a
grant of an option to purchase the Leased Premises, to Parkview Health System,
Inc. (the "Lessee"); provided that the Lessor shall have executed and delivered,
and caused the Lessee to execute and deliver, a subordination, non-disturbance
and attornment agreement in form and substance satisfactory to the
Administrative Agent. The Company shall pay any and all costs related to an
endorsement to the Administrative Agent's title insurance on the Leased Premises
to evidence the recording of the subordination, non-disturbance and attornment
agreement referred to in the immediately preceding sentence.
SECTION 2. AMENDMENT. In reliance on the representations and warranties set
forth in this Amendment and Consent and subject to satisfaction of the
conditions set forth in Section 5 hereof, the Borrowers and, pursuant to Section
14.1 ("Waiver; Amendments") of the Credit Agreement, the Required Lenders hereby
agree to amend and restate the first sentence of Section 14.9.1 ("Assignments")
of the Credit Agreement, excluding subparagraphs (x), (y) and (z) thereof, to
read in its entirety as follows: "No Borrower shall be permitted to assign any
or all of its obligations under this Agreement or under any other Loan Document
without the prior written consent of each Lender (except as otherwise expressly
provided in a Loan Document). Any Lender may, with the prior written consents of
the Issuing Lender and the Administrative Agent (which consents shall not be
unreasonably delayed or withheld and, in any event, shall not be required for an
assignment by a Lender to one of its Affiliates), at any time assign and
delegate to one or more Eligible Assignees (any Person to whom such an
assignment and delegation is to be made being herein called an "Assignee") (x)
all or any fraction of such Lender's Loans and Commitment (which assignment and
delegation shall be of a constant, and not a varying, percentage of all the
assigning Lender's Loans and Commitment) in a minimum aggregate amount equal to
the lesser of (i) the amount of the assigning Lender's Revolving Loan Percentage
of the Revolving Commitment Amount plus the unpaid amount of such Lender's Term
Loans and Special Loan and (ii) $5,000,000 or (y) all but not less than all of
such Lender's Tranche A Term Loan, Tranche B Term Loan or Special Loans;
provided that (a) no assignment and delegation may be made to any Person if, at
the time of such assignment and delegation, the Borrowers would be obligated to
pay any greater amount under Section 7.6 or Section 8 to the Assignee or the
Administrative Agent than the Borrowers are then obligated to pay to the
assigning Lender under such Sections (and if any assignment is made in violation
of the foregoing, the Borrowers will not be required to pay the incremental
amounts), (b) no assignment of all or any part of a Special Loan shall be
permitted unless there shall occur simultaneously with such assignment of such
Special Loan an assignment of a ratable portion of the assigning Lender's Lender
Preferred to the Assignee, (c) no assignment shall be made of all of a Lender's
Tranche A Term Loan, Tranche B Term Loan or Special Loan pursuant to part (y)
above to more than one Assignee unless, after giving effect thereto, each such
assignee shall hold at least $5,000,000 of such Term or Special Loan, as the
case may be, and (d) the Borrowers and the Administrative Agent shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee until the date when
all of the following conditions shall have been met:"
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents
and the Lenders to enter into this Amendment 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:
(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 (as such term is defined in Section 5 herein) 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 exists or will
exist after giving effect to this Amendment and Consent;
(c) the execution and delivery by the Borrowers of this Amendment 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 of any law, rule, regulation,
requirement, administrative order, decree or agreement that is binding on the
Company or any
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of its Subsidiaries or with any provision 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 October 29, 2001, (i) the aggregate outstanding principal
balance of the Tranche A Term Loans is $33,407,062.12, (ii) the aggregate
outstanding principal balance of the Tranche B Term Loans is $100,668,187.24,
(iii) the aggregate outstanding principal balance of the Special Loans is
$114,732,024.14 and (iv) the aggregate outstanding principal amount of all
Revolving Loans is $23,000,000.00, including the Stated Amount of all Letters of
Credit in the aggregate amount of $2,002,401.14;
(f) attached hereto is an updated Schedule 9.8 ("Subsidiaries") to the
Credit Agreement that sets forth a true and complete list as of the date hereof
of (i) each Subsidiary of the Company, (ii) the jurisdiction of organization of
such Subsidiary, (iii) the name of each stockholder thereof, (iv) the number and
percentage of outstanding shares owned by each stockholder thereof and (v) for
all Domestic and first-tier Foreign Subsidiaries of the Company, (x) the issued
and outstanding shares of capital stock of such Subsidiary and (y) the
authorized capital stock of such Subsidiary; 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 4. LIMITED AMENDMENT AND CONSENT. This Amendment and Consent shall
be limited precisely as written and shall not be deemed (i) to be an amendment
of or a consent granted 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 a waiver of any 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 5. EFFECTIVENESS. The consent set forth in Section 1 above and the
amendments set forth in Section 2 above shall become effective as of the date
hereof (the "Effective Date"), subject to satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of:
(i) a counterpart of this Amendment and Consent executed by the
Borrowers and the Required Lenders;
(ii) a counterpart of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit 1 hereto, executed by each Loan Party;
(b) such other documents as the Administrative Agent or any Lender
may reasonably request;
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(c) all legal matters in connection with this Amendment 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;
(d) in immediately available funds, payment of all outstanding
amounts, if any, 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, and all fees and disbursements of FTI Xxxxxxxx & Xxxxx,
financial advisor to such counsel; and
(e) no Event of Default shall have occurred and be continuing, and no
Unmatured Event of Default shall occur or be continuing upon the effectiveness
of this Amendment and Consent. The Administrative Agent shall give notice to the
Borrowers upon the occurrence of the Effective Date. Except as provided in
Section 8 below, this Amendment and Consent shall be of no force and effect if
the preceding conditions have not been satisfied by November 30, 2001.
SECTION 6. POST-CLOSING COVENANT. The Borrowers jointly and severally
covenant and agree that they shall execute and deliver and use all commercially
reasonable efforts to cause unaffiliated third parties to execute and deliver,
as soon as practicable, to the Administrative Agent, duly executed Deposit
Pledge and Security Agreements and Control Agreements, in form and substance
satisfactory to the Administrative Agent, encumbering such of the deposit
accounts set forth on Schedule 9.25 ("Domestic Deposit Accounts") to the Credit
Agreement as the Administrative Agent shall in its discretion determine. This
Section 6 shall supersede in its entirety Section 6(i) of the Second Amendment
and Waiver dated as of July 23, 2001 with respect to the Credit Agreement.
SECTION 7. MISCELLANEOUS.
7.1 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 Consent 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 and Consent shall
constitute a Loan Document as defined in the Credit Agreement, and the
provisions of this Amendment and Consent may be amended, modified or
supplemented, or any provision thereof waived, only in accordance with and
subject to the provisions of the Credit Agreement; provided, however, that
notwithstanding anything to the contrary in Section 14.1 of the Credit
Agreement, the provisions of Section 2 of this Amendment and Consent may only be
amended, modified or supplemented, or any provision thereof waived, with the
consent of all of the Required Lenders.
7.2 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.
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7.3 Counterparts. This Amendment 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 and Consent. Delivery of an
executed counterpart of a signature page of this Amendment and Consent by
facsimile shall be as effective as delivery of a manually executed counterpart
of this Amendment and Consent.
7.4 Expenses. The Company agrees to pay the reasonable out-of-pocket costs
and expenses of the Administrative Agent (including Attorney Costs) in
connection with the preparation, execution and delivery of this Amendment and
Consent.
7.5 GOVERNING LAW. THIS AMENDMENT 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.
7.6 Successors and Assigns. This Amendment 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 and Consent without the
prior written consent of the Administrative Agent and the Required Lenders.
7.7 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 Consent. This Amendment and Consent shall be construed
without regard to any presumption or any rule requiring that it be construed
against the party causing this Amendment and Consent or any part hereof to be
drafted.
7.8 Entire Agreement. This Amendment 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 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 and Consent. None of the terms or conditions of this Amendment and
Consent may be changed, modified, waived or cancelled, orally or otherwise,
except as provided in the Credit Agreement.
7.9 Enforceability. Should any one or more of the provisions of this
Amendment 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.
7.10 Invalidity; Severability. Whenever possible, each provision of this
Amendment 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 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.
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7.11 Headings. The headings of this Amendment 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 and Consent.
7.12 Definitions. Capitalized terms used in this Amendment 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 8. 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 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 AND CONSENT. THE RELEASES AND DISCHARGES IN THIS
SECTION 8 SHALL BE EFFECTIVE REGARDLESS OF WHETHER THE CONDITIONS TO THE
EFFECTIVENESS OF THIS AMENDMENT 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
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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
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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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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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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, 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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EXHIBIT 1
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
October 31, 2001
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:
Please refer to:
1. The Guaranty dated as of October 20, 2000 (the "Guaranty") executed
in favor of the Administrative Agent and various other parties by certain
of the undersigned;
2. The Security Agreement dated as of October 20, 2000 (the "Security
Agreement") among the undersigned and the Administrative Agent; and
3. The Pledge Agreement dated as of October 20, 2000 (the "Pledge
Agreement") among certain of the undersigned and the Administrative Agent.
4. The Post-Confirmation Pledge Agreement dated March 14, 2001 (the
"German Pledge Agreement") between the Company and the Administrative
Agent.
5. The Deed of Pledge of Registered Shares dated April 27, 2001 (the
"Dutch Pledge Agreement") among Tokheim Investment Corp., Tokheim Holding
Netherlands B.V. and the Administrative Agent.
6. The Scots Pledge Agreement dated as of June 12, 2001 (the "Scots
Pledge Agreement") between Tokheim Investment Corp. and the Administrative
Agent.
7. The Shares Account Pledge Agreement dated as of July 31, 2001 (the
"French Pledge Agreement") among Tokheim Investment Corp., Tokheim Sofitam
S.A. and the Administrative Agent.
Capitalized terms not otherwise defined herein will have the meanings
given to such terms in the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Borrowers, the Lenders and
the Agents have executed the Third Amendment and Consent dated as of the date
hereof (the "Amendment 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").
Exhibit 1--Page 1
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 and Consent and that, upon such
effectiveness, all of the references in each such Loan Document to the "Credit
Agreement" shall be references to the Credit Agreement as amended by the
Amendment 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 AND CONSENT 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 CONSENT. THE
RELEASES AND DISCHARGES IN THIS LETTER AGREEMENT SHALL BE EFFECTIVE REGARDLESS
OF WHETHER THE CONDITIONS TO THE EFFECTIVENESS OF THE AMENDMENT 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
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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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Exhibit 1--Page 2
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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PAXCIS NETWORKS, INC.
By
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Title
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Exhibit 1--Page 3
SCHEDULE 9.8
Subsidiaries
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Subsidiary Tokheim % Jurisdiction of
Name Ownership Organization
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Management Solutions, Inc. (A) 100.00% USA - Colorado
Tokheim RPS, LLC (K) 100.00% USA - Delaware
Paxcis Networks, Inc. (A) 100.00% USA - Delaware
Sunbelt Hose & Petroleum Equipment, Inc. (B) 100.00% USA - Xxxxxxx
Xxxxxxx Services LLC (S) 100.00% USA - Indiana
Gasboy International, Inc. (B) 100.00% USA - Pennsylvania
Tokheim Investment Corp. (A) 100.00% USA - Texas
Tokheim Austria GesmbH (G) 100.00% Austria
Tokheim Belgium N.V. (O) 100.00% Belgium
Socatam S.A. (F) 99.93% Cameroon
Tokheim and Gasboy of Canada Limited (C) 100.00% Canada - Ontario
Tokheim Czech Republic S.r.o. (R) 100.00% Czech Republic
Tokheim Scandinavia A/S (I) 100.00% Denmark
Tokheim Sofitam S.A. (B) 100.00% France
Tokheim Sofitam Applications S.A. (E) 100.00% France
Outelec (F) less-than 1.00% France
Excelsior S.A. (F) 20.00% France
Serip S.A. (F) 66.00% France
Tokheim Services France S.A. (F) 100.00% France
Tokheim Holding GmbH (A) 100.00% Germany
Tokheim GmbH (G) 100.00% Germany
Deutsche Tokheim GmbH (G) 100.00% Germany
Tokheim Xxxxxxx GmbH (M) 100.00% Germany
Tokheim Tanksysteme GmbH (M) 100.00% Germany
Tokheim Hungary k.f.t. (F) 100.00% Hungary
Tulla Electronics Limited (B) 100.00% Ireland
Tokheim Ireland Limited (B) 100.00% Ireland
Tokheim Italia S.r.l. (F) 100.00% Italy
Tokheim de Mexico (B) 100.00% Mexico
Matam S.A. (F) 99.90% Morocco
Tokheim Polgermann (N) 100.00% Poland
Tokheim Portugal (Q) 99.81% Portugal
Rossgermann (N) 100.00% Russia
Cosetam S.A. (F) 100.00% Senegal
Tokheim Slovakia S.r.o. (F) 100.00% Slovakia
Tokheim Properties (Proprietary) Limited (D) 100.00% South Africa
Tokheim South Africa (Proprietary) Limited (D) 100.00% South Africa
Tokheim Koppens Iberica S.A. (F) 99.96% Spain
Tokheim Switzerland A.G. (B) 100.00% Switzerland
Schedule 9.8--Page 0
Xxxxxxx Xxxxxxx Xxxxxxxxxxx B.V. (B) 100.00% The Netherlands
Koppens Automatic Fabrieken B.V. (I) 100.00% The Netherlands
Tokheim Netherlands B.V. (I) 100.00% The Netherlands
Tokheim Europe B.V. (I) 100.00% The Netherlands
Cottam Sarl (F) 100.00% Tunisia
Tokheim UK Limited (B) 100.00% United Kingdom
Sofitam Pump Services Ltd. (H) 100.00% United Kingdom
Independent Pump Services (T) 100.00% United Kingdom
Sofitam Nigeria (J) 25.00% Nigeria
Includes Director Qualifying Shares for Tokheim de Mexico S.A. de C.V., Serip
S.A. and Xxxxxx X.X.
(A) Directly owned by Tokheim Corporation.
(B) Directly owned by Tokheim Corporation's subsidiary Tokheim Investment
Corp., or directors' qualifying shares.
(C) Directly owned 65% by Tokheim Corporation's subsidiary Tokheim
Investment Corp. and 35% by Tokheim Corporation's subsidiary
Gasboy International, Inc.
(D) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim and
Gasboy of Canada Limited.
(E) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Sofitam S.A.
(F) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Sofitam Applications S.A.
(G) Directly owned by Tokheim Corporation's direct subsidiary Tokheim
Holding GmbH.
(H) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
UK Ltd.
(I) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Holding Netherlands B.V.
(J) Directly owned 25% by Tokheim Corporation's indirect subsidiary Tokheim
Sofitam Applications S.A.
(K) Directly owned by Tokheim Corporation's indirect subsidiary Gasboy
International, Inc.
(L) Directly owned by Tokheim Corporation's indirect subsidiary Sofitam
Iberica S.A.
(M) Directly owned by Tokheim Corporation's indirect subsidiary Deutsche
Tokheim GmbH.
(N) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Xxxxxxx GmbH.
(O) Directly owned 88.48% by Tokheim Corporation's indirect subsidiary
Tokheim Holding Netherlands B.V., 11.50% by Tokheim
Corporation's indirect subsidiary Tokheim Sofitam Application S.A.,
and 0.016% by Tokheim Corporation's indirect subsidiary
Koppens Automatic Fabrieken B.V.
(P) Directly owned 98.6% by Tokheim Corporation's indirect subsidiary
Tokheim Sofitam Application S.A. and 0.8% by Tokheim Corporation's
indirect subsidiary Matam S.A.
(Q) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Koppens Iberica S.A.
(R) Directly owned by Tokheim Corporation's indirect subsidiary Tokheim
Services France S.A.
(S) Directly owned 99% by Tokheim Corporation and 1% by Tokheim
Corporation's subsidiary Tokheim Investment Corp.
(T) Directly owned by Tokheim Corporation's indirect subsidiary Sofitam
Pump Services Ltd.
Schedule 9.8--Page 2
CAPITALIZATION AND OWNERSHIP OF DOMESTIC
AND FIRST-TIER FOREIGN SUBSIDIARIES
------------------------------------------------------------------------------------------------------------------------------------
Subsidiary Name Jurisdiction of Issued and Outstanding Authorized Capital Owner(s), with Percentage
Organization Shares of Capital Stock Stock of Ownership
------------------------------------------------------------------------------------------------------------------------------------
Domestic
------------------------------------------------------------------------------------------------------------------------------------
Gasboy International, Inc. USA--Pennsylvania 144 500 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Management Solutions, Inc. USA--Colorado 500,000 1,000,000 Tokheim Corporation
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Paxcis Networks, Inc. USA--Delaware 1,000 1,000 Tokheim Corporation
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Sunbelt Hose & Petroleum USA--Georgia 1,000 10,000 Tokheim Investment Corp.
Equipment, Inc. (100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Investment Corp. USA--Texas 1,000 5,000 Tokheim Corporation
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim RPS, LLC USA--Delaware not applicable not applicable Gasboy International,
Inc. (100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Services LLC USA--Indiana not applicable not applicable Tokheim Investment Corp.
(99%); Tokheim
Corporation (1%)
-----------------------------------------------------------------------------------------------------------------------------------
First-Tier Foreign
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Holding GmbH Germany 1 not applicable* Tokheim Corporation
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Holding Netherlands B.V. The Netherlands 41 200 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Ireland Limited Ireland 10,000 1,000,000 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Sofitam S.A. France 4,673,131 4,673,131 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim Switzerland A.G. Switzerland 3,000 3,000 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tokheim UK Limited United Kingdom 127,800 12,980,000 Tokheim Investment Corp.
(100%)
-----------------------------------------------------------------------------------------------------------------------------------
Tulla Electronics Limited Ireland 56,576 100,000 Tokheim Investment Corp.
(100%)
------------------------------------------------------------------------------------------------------------------------------------
Tokheim de Mexico S.A. de C.V. Mexico 50 50 Tokheim Corporation
------------------------------------------------------------------------------------------------------------------------------------
Tokheim & Gasboy of Canada Ltd. Ontario, Canada 1,000 1,000 Gasboy International,
Inc. (35%) and Tokheim
Investment Corp. (65%)
------------------------------------------------------------------------------------------------------------------------------------
--------
* Under German law, the concept of Authorized Capital Stock is not applicable to
a German limited liability company (GmbH).
Schedule 9.8--Page 3
