Exhibit 4.12
AMENDMENT NO. 1 TO WAIVER AND CONSENT
THIS AMENDMENT NO. 1 TO WAIVER AND CONSENT, dated as of April 30, 2002
(this "Amendment"), is with respect to that certain Waiver and Consent,
dated as of April 15, 2002 (the "Waiver and Consent"), given under that
certain Post-Confirmation Credit Agreement dated as of October 20, 2000 (as
amended, modified or otherwise supplemented, 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, the Borrowers have requested that the Lenders agree to extend by
one day a certain April 30, 2002 deadline set forth in the Waiver and
Consent; and
WHEREAS the Lenders are willing to agree to such extension 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. Section 6(a)(ii) of the Waiver and Consent is
hereby amended by replacing the date "April 30, 2002" therein with
the date "May 8, 2002".
Section 2. Except as expressly amended hereby, the Waiver
and Consent shall continue in full force and effect, and the
Borrowers hereby ratify and confirm the terms and provisions
thereof, including all representations, warranties and covenants
thereunder.
Section 3. This Amendment shall be limited precisely as
written and shall not be deemed (a) to be an amendment, waiver of or
consent granted pursuant to any other term or condition of the
Credit Agreement, and Loan Document or any of the instruments or
agreements referred to in such documents or 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 (b) to prejudice any other right or rights that the Agents or the
Lenders may now or in the future have in connection with the Credit
Agreement, any other Loan Document or any instruments referred to
therein.
Section 4. Capitalized terms used in this Amendment 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 5. 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 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.
THE RELEASES AND DISCHARGES IN THIS SECTION 5 SHALL BE EFFECTIVE
REGARDLESS OF WHETHER THIS AMENDMENT BECOMES EFFECTIVE 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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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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SIGNATURE PAGE TO AMENDMENT NO. 1
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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By
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AMSOUTH BANK, as Documentation Agent and as a Lender
By
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BANK ONE, INDIANA, NATIONAL ASSOCIATION, as a Lender
By
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CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By
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CREDIT AGRICOLE INDOSUEZ, as a Lender
By
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By
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BEAR, ▇▇▇▇▇▇▇ & CO., INC., as a Lender
By
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BANKERS TRUST COMPANY, as a Lender
By
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SIGNATURE PAGE TO AMENDMENT NO. 1
TO TOKHEIM WAIVER AND CONSENT
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By
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▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By
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OXFORD STRATEGIC INCOME FUND, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By
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▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By
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CREDIT INDUSTRIEL ET COMMERCIAL, as a Lender
By
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By
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FINOVA CAPITAL CORPORATION, as a Lender
By
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SIGNATURE PAGE TO AMENDMENT NO. 1
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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OCTAGON INVESTMENT PARTNERS II, LLC, as a Lender
By
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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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By
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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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WHIPPOORWILL/TOKHEIM OBLIGATIONS TRUST-2000, as a
Lender
By: Whippoorwill Associates, Incorporated, as its
investment representative and advisor
By
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BARCLAYS BANK PLC, as a Lender
By
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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as a Lender
By
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SIGNATURE PAGE TO AMENDMENT NO. 1
TO TOKHEIM WAIVER AND CONSENT