Exhibit 4.11
WAIVER AND CONSENT
THIS WAIVER AND CONSENT, dated as of April 15, 2002 (this "Waiver and Consent"),
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 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, (a) the Event of Default occurring
under Section 12.1.5 of the Credit Agreement as a result of the failure of the
Borrowers to comply with the provisions of Section 10.6.5 of the Credit
Agreement for the Computation Period ended February 28, 2002 was waived by the
Lenders solely through April 15, 2002 (the "EBITDA Event of Default") and (b)
the Lenders consented to an extension to April 15, 2002 of the date by which (i)
the annual audit report of the Company and its Subsidiaries in respect of Fiscal
Year 2001 and (ii) related documentation required under the Credit Agreement
must be delivered pursuant to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders (a) extend through June
15, 2002 (i) the waiver of the EBITDA Event of Default and (ii) the date by
which (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 must be delivered pursuant to the Credit Agreement, (b) consent to the
issuance of the annual audit report with certain qualifications and exceptions
and (c) consent to the filing by the Company by no later than June 15, 2002 of
its Annual Report on Form 10-K in respect of Fiscal Year 2001 and its Quarterly
Report on Form 10-Q in respect of the first Fiscal Quarter of Fiscal Year 2002;
and
WHEREAS the Lenders are willing to agree to extend such waiver and give such
consent 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 Waiver and Consent and subject to satisfaction of the conditions set
forth in Section 5 hereof, effective as of the Effective Date, the Lenders
hereby extend, solely for the period ending on June 15, 2002, the waiver
contained in the Fifth Amendment of the EBITDA Event of Default; it being
understood and agreed that the previously granted waiver has been and continues
to be solely a limited waiver and shall now expire on June 15, 2002 without
further deed or act of any party and that thereafter such Event of Default shall
exist as if such waiver (and any extension thereof achieved hereunder or under
the Fifth Amendment) 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 Waiver and Consent and subject to satisfaction of the conditions set
forth in Section 5 hereof, effective as of the Effective Date, the Lenders
hereby consent:
(a) to a further extension to June 15, 2002 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 (i) the annual audit
report of the Company and its Subsidiaries (with accompanying
financial statements) in respect of Fiscal Year 2001, audited by the
Company's independent accountants and (ii) the written statement from
such accountants described in such section;
(b) to delivery, pursuant to Section 10.1.1 of the Credit Agreement, of
such annual audit report in respect of Fiscal Year 2001 with such
exceptions and qualifications as shall be required by the Company's
independent auditors, provided that such exceptions and qualifications
shall be reasonably acceptable to the Administrative Agent and to the
financial advisors to the Administrative Agent's counsel; and
(c) to the filing by the Company with the SEC, as required pursuant to
Section 10.4 of the Credit Agreement, by no later than June 15, 2002
of its Annual Report on Form 10-K in respect of Fiscal Year 2001 and
of its Quarterly Report on Form 10-Q in respect of the first Fiscal
Quarter of Fiscal Year 2002;
it being expressly acknowledged and agreed that any failure by the
Borrowers to take any of the actions described in and as required by this
Section 2 by June 15, 2002 shall constitute an immediate Event of Default
under the Credit Agreement on such date, without any notice, additional
passage of time or other grace or cure period whatsoever.
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents and the
Lenders to enter into this 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 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);
(b) no Event of Default or Unmatured Event of Default will exist after
giving effect to this Waiver and Consent;
(c) the execution and delivery by the Borrowers of this 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,
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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 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,
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 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 April 4, 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 $31,537,401.14, including the Stated Amount of all
Letters of Credit in the aggregate amount of $2,537,401.14; and
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(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 WAIVER AND CONSENT. This Waiver and Consent shall be limited
precisely as written and shall not be deemed (i) to be a waiver 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 5. EFFECTIVENESS. The waiver set forth in Section 1 above and the
consent set forth in Section 2 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 Waiver and Consent 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 1 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 Waiver and Consent, the
Credit Agreement and the other Loan Documents shall be reasonably
satisfactory to ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ Chance
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Administrative Agent, all fees and
disbursements of FTI ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, financial advisor to such
counsel, and all amounts due and payable pursuant to Section 7.5; and
(d) upon the effectiveness of this Waiver and Consent, (i) the
representations and warranties in this 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 Waiver and Consent shall be of no
force and effect if the preceding conditions have not been satisfied by April
24, 2002.
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For purposes of determining compliance with the conditions specified in this
Section 5, each Lender that has executed this 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 6. POST-CLOSING COVENANTS.
(a) The Borrowers jointly and severally covenant and agree that they
shall:
(i) by not later than April 19, 2002, retain an interim turnaround
chief financial officer of the Company who shall be reasonably
acceptable to the Administrative Agent and the Required Lenders;
and
(ii) by the earlier of (i) the date on which the annual audit report
of the Company and its Subsidiaries in respect of Fiscal Year
2001 reported on Form 10-K is filed with the SEC or (ii) April
30, 2002, agree to and execute a binding term sheet that shall
set forth the material terms of the Company's plan of
recapitalization and restructuring of the balance sheets of the
Company and its Subsidiaries, which term sheet shall be
acceptable in form and substance to the Administrative Agent;
it being expressly acknowledged and agreed that any failure to keep,
perform and/or satisfy such undertakings set forth in this Section
6(a) (x) shall constitute an immediate 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 waiver set forth in Section 1 above and the consent set
forth in Section 2 above to become immediately null and void and such
waiver and such consent shall be treated as if they were never
granted; and
(b) The Borrowers jointly and severally covenant and agree that any
amounts realized by any Borrower from a whole life insurance policy in
connection with settlement of any claim by a vested participant in the
Company's Supplemental Executive Retirement Plan in excess of the
amount of such settlement (net of direct costs and expenses incurred
in connection therewith) shall be deemed Designated Proceeds under
Section 6.2.2(a)(vii) (but without giving effect to the proviso
thereunder) of the Credit Agreement, and accordingly such excess
proceeds shall be applied to the Loans as set forth in the last
sentence of Section 6.2.2(a) of the Credit Agreement. This provision
shall be deemed an additional covenant and agreement of the Borrowers
under Section 6.2.2 of 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 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 Waiver and Consent shall constitute a Loan Document
as defined in the Credit
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Agreement, and the provisions of this 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.
7.2 Reaffirmation of Security Interest.
(i) 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 Waiver and Consent, and the obligations secured thereby and
thereunder shall include Borrowers' obligations under the Credit
Agreement as amended by this 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.
(ii) Each of the Borrowers hereby further covenants and agrees that:
(x) to the extent any of the same shall constitute "commercial
tort claims" within the meaning of Article 9 of the Uniform
Commercial Code (and without prejudice to the characterization
thereof), it hereby grants a lien and security interest in, and
assigns, pledges and conveys to the Administrative Agent for the
benefit of the "Lender Parties" as security for the "Liabilities"
(as such terms are defined in the Security Agreement), and agrees
that the lien and security interests granted under the Security
Agreement shall cover and extend to, any and all claims of any of
the undersigned against Schlumberger Limited ("Schlumberger") in
connection with the acquisition of the RPS Division of
Schlumberger, including, but not limited to, claims subject to
arbitration, and the proceeds thereof, (y) such claims and
proceeds shall constitute part of the "Collateral" under and as
defined by the Security Agreement and (z) the Security Agreement
is effectively hereby amended to incorporate (to the extent not
already incorporated) such assets as part of the "Collateral".
7.3 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.
7.4 Counterparts. This 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 Waiver and Consent. Delivery of an executed
counterpart of a signature page of this Waiver and Consent by facsimile shall be
as effective as delivery of a manually executed counterpart of this Waiver and
Consent.
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7.5 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 Waiver and Consent and any other
documentation contemplated hereby (whether or not this Waiver and Consent
becomes effective or the transactions contemplated hereby are consummated),
including, but not limited to, the reasonable fees and disbursements of ▇▇▇▇▇▇▇▇
Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Administrative Agent, and FTI
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, financial advisor to such counsel.
7.6 GOVERNING LAW. THIS 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.
7.7 Successors and Assigns. This 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 Waiver and Consent except to the extent
permitted by the first sentence of Section 14.9.1 of the Credit Agreement.
7.8 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 Waiver and Consent. This Waiver and Consent shall be construed without
regard to any presumption or any rule requiring that it be construed against the
party causing this Waiver and Consent or any part hereof to be drafted.
7.9 Entire Agreement. This 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 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
Waiver and Consent. None of the terms or conditions of this Waiver and Consent
may be changed, modified, waived or canceled, orally or otherwise, except as
provided in the Credit Agreement.
7.10 Enforceability. Should any one or more of the provisions of this
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.
7.11 Invalidity; Severability. Whenever possible, each provision of this
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
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.
7.12 Headings. The headings of this 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 Waiver and Consent.
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7.13 Definitions. Capitalized terms used in this 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 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 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 WAIVER AND CONSENT. THE RELEASES AND DISCHARGES IN THIS SECTION 8 SHALL BE
EFFECTIVE REGARDLESS OF WHETHER THE CONDITIONS TO THE EFFECTIVENESS OF THIS
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
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By
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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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SIGNATURE PAGE TO TOKHEIM WAIVER 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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BEAR, ▇▇▇▇▇▇▇ & 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 WAIVER 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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▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By
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Title
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OXFORD STRATEGIC INCOME FUND, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By
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Title
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▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ 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 WAIVER 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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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as a Lender
By
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SIGNATURE PAGE TO TOKHEIM WAIVER AND CONSENT
EXHIBIT 1
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
April 15, 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 Waiver and Consent dated as of the date hereof (the
"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 supplemented by the Waiver
and Consent, and the obligations secured thereby and thereunder shall include
Borrowers' obligations under the Credit Agreement as amended by the 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 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 WAIVER 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,
EXHIBIT 1
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 WAIVER AND CONSENT. THE RELEASES
AND DISCHARGES IN THIS LETTER AGREEMENT SHALL BE EFFECTIVE REGARDLESS OF WHETHER
THE CONDITIONS TO THE EFFECTIVENESS OF THE 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
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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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EXHIBIT 1--Page 2
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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EXHIBIT 1--Page 3