Exhibit 4.7
SECOND Amendment and Waiver
THIS SECOND AMENDMENT AND WAIVER dated as of July 23, 2001 (this
"Amendment and Waiver") is to the Post-Confirmation Credit Agreement dated as
of October 20, 2000 (as amended pursuant to the First Amendment dated as of
March 14, 2001 and as further hereby amended (the "Credit Agreement")), among
TOKHEIM CORPORATION, an Indiana corporation (the "Company"), and various
subsidiaries thereof as borrowers (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 and as
administrative agent for the Lenders (the "Administrative Agent"; the
Documentation Agent and the Administrative Agent being collectively referred
to as the "Agents").
W I T N E S S E T H:
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WHEREAS, Events of Default under Section 12.1.5 of the Credit
Agreement have occurred and are continuing as a result of the failure of the
Company to comply with the provisions of Sections 10.6.3 and 10.6.5 of the
Credit Agreement for the Computation Period ended May 31, 2001 (the "Existing
Events of Default");
WHEREAS, the Borrowers have requested that the Lenders waive the
Existing Events of Default, amend certain covenants through August 31, 2002
and suspend compliance with certain financial covenants through September 1,
2002; and
WHEREAS, the Lenders are willing to agree to such waiver, amendment
and suspension with compliance but only subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. WAIVER . In reliance on the representations and warranties set
forth in this Amendment and Waiver and subject to satisfaction of the
conditions set forth in Section 5 hereof, the Agents and the Lenders hereby
(i) waive permanently effective as of May 31, 2001 the Existing Events of
Default and (ii) suspend, from the Amendment and Waiver Effective Date (as
hereinafter defined) through September 1, 2002, inclusive (the "Compliance
Suspension Date"), compliance by the Borrowers with Sections 10.6.1, 10.6.2,
10.6.3 and 10.6.4 of the Credit Agreement; provided that commencing with the
Computation Period ending on November 30, 2002 and thereafter all of the
covenants and provisions of the Credit Agreement referred to in part (ii)
above 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. AMENDMENTS. 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 5 hereof, the Lenders hereby consent to this
Amendment and Waiver pursuant to Section 14.1 of the Credit Agreement, and the
Credit Agreement shall be amended effective as of July 15, 2001 (the
"Amendment and Waiver Effective Date") in the following manner:
2.1 The definition of "Interest Period" set forth in Section 1.1 of the Credit
Agreement shall be amended by replacing the phrase "one, two, three or six
months" with the phrase "one, two or three months".
2.2 A new subsection (c) shall be added to Section 10.1.7 of the Credit
Agreement to read in its entirety as follows:
"(c) By no later than December 31, 2001, a detailed business
plan of the Company and its subsidiaries which sets forth
strategic alternatives with respect to their ongoing
operations and capital structure, including, but not
limited, to recapitalization, refinancing and asset
disposition, in form and substance satisfactory to the
Administrative Agent."
2.3 A new Section 9.25 shall be added to the Credit Agreement to read in
its entirety as follows:
"Section 9.25 Deposit Accounts. Set forth on Schedule 9.25
is a complete and accurate list of all bank and other
deposit accounts maintained by any Loan Party with any bank
or other financial institution in the United States,
including the account number of such account, a brief
description of the usage and type of such account, the name
and address of the depository bank or other financial
institution and the name of the accountholder. The Borrowers
shall not, without the prior written consent of the
Administrative Agent, maintain or establish, or permit to be
maintained or established with any bank or other financial
institution in the United States any bank or other deposit
accounts other than as set forth on Schedule 9.25 unless the
Borrowers shall have executed and delivered or cause to be
executed and delivered such Deposit and Pledge Agreements
and Control Agreements with respect thereto as the
Administrative Agent shall require in order to encumber such
accounts in its favor."
2.4 Schedule 9.25 attached to this Amendment and Waiver shall constitute
Schedule 9.25 to the Credit Agreement.
2.5 Section 10.6.5 of the Credit Agreement shall be amended by (i) replacing
the number "$33,000,000" set forth opposite the date "May 31, 2001" with the
number "$28,000,000"; (ii) replacing the number "$42,000,000" set forth
opposite the date "August 31, 2001" with the number "$23,200,000"; (iii)
replacing the number "$43,000,000" set forth opposite the date "November 30,
2001" with the number "$25,700,000"; and (iv) replacing the designation "TBN"
set forth opposite the period "February 28, 2002 through August 31, 2002" with
the number "$26,000,000".
SECTION 3. LOANS, LETTERS OF CREDIT NOT REQUIRED. In consideration of the
waiver and amendment hereinabove set forth, and notwithstanding any provision
to the contrary set forth in the Credit Agreement or any of the other Loan
Documents, each of the Borrowers hereby acknowledges and agrees that: (a) no
Lender is required or otherwise obligated to make, and no Borrower shall
request that any Lender make, any Loan or otherwise extend credit to any
Borrower, and (b) the Issuing Lender and the Lenders are not be required or
otherwise obligated to issue, and no Borrower shall request that the Issuing
Lender or any Lender issue, any Letters of Credit other than Letters of Credit
(or renewals thereof) issued to renew Letters of Credit outstanding on the
date hereof in accordance with the requirements of Section 2.3 of the Credit
Agreement; except in either case to the extent that after giving effect to
such Loan or issuance of Letter of Credit, the aggregate Revolving
Outstandings shall not exceed the lesser of: (i) $35,000,000 plus the amount
of any Additional Availability, but in no event in excess of $40,000,000 and
(ii) the Borrowing Base. For purposes of this Section 3, "Additional
Availability" means the amount, if any, by which EBITDA with respect to the
three month period ending August 31, 2001 (based on the Company's financial
statements for such period) exceeds $3,200,000, plus the amount, if any, by
which EBITDA with respect to the three month period ending November 30, 2001
(based on the Company's financial statements for such period) exceeds
$11,200,000.
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:
(a) the representations and warranties in the Credit Agreement are true and
correct in all material respects on and as of the Amendment and Waiver
Effective Date with the same effect as if made on and as of the Amendment and
Waiver 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) after giving effect to this Amendment and Waiver, no Event of Default or
Unmatured Event of Default exists or will exist or will result from the
execution and delivery of this Amendment and Waiver by the Borrowers;
(c) the execution and delivery of this Amendment and Waiver by the Borrowers
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 been approved by all necessary 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 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 each 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 July 13, 2001, 2001, (i) the aggregate outstanding principal balance
of the Tranche A Term Loans is $34,725,398.56, (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
$110,225,044.54, and (iv) the aggregate outstanding principal amount of all
Revolving Loans is $23,444,308.06, including the Stated Amount of all Letters
of Credit in the aggregate amount of $1,444,308.06; and
(f) the obligations 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, recoupment, counterclaim
or defense of any nature whatsoever to payment of such obligations.
SECTION 5. EFFECTIVENESS. This Amendment and Waiver shall become effective as
of the Amendment and Waiver Effective Date (and any earlier effective date
herein expressly provided), subject to satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of:
(i) a counterpart of this Amendment and Waiver executed by the
Borrowers and the Required Lenders and the Required Revolving
Lenders;
(ii) a counterpart of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit A, executed by each Loan Party;
(iii) in immediately available funds, $100,000 of the Amendment and
Waiver Fee referred to in Section 7(b) below;
(iv) in immediately available funds, payment of all outstanding
amounts, if any, that have been invoiced by 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, and all
fees and disbursements of FTI ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, financial advisor to
such counsel; and
(v) such other documents as the Administrative Agent 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
▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Administrative Agent; and
(c) 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 Waiver. The Administrative Agent shall give notice to
the Borrowers upon the occurrence of the Amendment and Waiver Effective Date.
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
July 23, 2001.
SECTION 6. POST-CLOSING COVENANTS. The Borrowers jointly and
severally covenant and agree that on or before August
31, 2001:
(i) the Borrowers shall execute and deliver or cause to be executed and
delivered (or, with respect to execution and delivery by unaffiliated third
parties of documents referred to in part (a) below, shall use commercially
reasonable efforts to cause such third parties to execute and deliver) to the
Administrative Agent the following, each of which shall be in form and
substance satisfactory to the Administrative Agent:
(a) duly executed Deposit Pledge and Security Agreements and Control
Agreements encumbering such of the deposit accounts set forth on Schedule 9.25
to the Credit Agreement as the Administrative Agent shall determine;
(b) such documentation as shall be required by the Administrative
Agent to effectuate fully the pledge of collateral
by Tokheim Investment Corp. of its shares in Tokheim Sofitam S.A. under
French law;
(c) an opinion of Texas counsel to Tokheim Investment Corp.
with respect to execution and delivery of the
Reaffirmation of Loan Documents; and
(ii) the Company shall employ a chief executive officer or professional
management consultant, each of which shall be reasonably acceptable to the
Administrative Agent and the Required Lenders;
it being expressly acknowledged and agreed that any failure to keep, perform
and satisfy such undertakings shall constitute an Event of Default under the
Credit Agreement.
SECTION 7. LIMITED AMENDMENT AND WAIVER/WAIVER FEE.
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(a) This Amendment and Waiver shall be limited precisely as written and shall
not be deemed (i) to be an amendment, waiver or modification of, or consent
granted pursuant to, any other term or condition of the Credit Agreement, any
other Loan Document or any of the instruments or agreements referred to in any
such document or, except as expressly set forth herein, 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 in any such document.
(b) The Borrowers agree, jointly and severally, to pay in consideration of the
amendment and waiver set forth herein, an Amendment and Waiver Fee in an
amount equal to $1,750,000, for the account of Lenders party hereto that have
executed and delivered counterparts of this Amendment and Waiver to counsel
for the Administrative Agent by 12:00 p.m. (New York City time) on July 23,
2001 (to be allocated among such Lenders ratably to each Lender that has so
executed and delivered a counterpart hereof in accordance with the proportion
the Revolving Commitment and Term Loans of such Lender bears to the aggregate
Revolving Commitments and Term Loans of all Lenders that have so executed and
delivered counterparts hereof). The Amendment and Waiver Fee shall be payable,
subject to execution and delivery of this Amendment and Waiver by the Required
Lenders and the Borrowers, as follows: (i) $100,000 of such fee shall be
payable on the Amendment and Waiver Effective Date, (ii) $250,000 of such fee
shall be payable on November 30, 2002 and the remaining unpaid amount of such
fee shall be payable on the Termination Date. The Amendment and Waiver Fee is
fully earned and non-refundable, regardless of the failure of any Borrower to
satisfy any post-closing conditions to this Amendment and Waiver.
SECTION 8. MISCELLANEOUS.
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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 Amendment and Waiver 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 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, and the provisions hereof may only be waived, in
accordance with and subject to the provisions of the Credit Agreement,
provided, however, that notwithstanding anything to the contrary in Section
14.1, the provisions of Section 3 of this Amendment and Waiver may only be
amended, modified or supplemented, or any provision thereof waived, with the
consent of the Required Lenders and the Required Revolving Lenders.
8.2 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.
8.3 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.
8.4 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 Waiver.
8.5 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 PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
8.6 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 without the prior
written consent of the Administrative Agent and the Required Lenders.
8.7 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 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.
8.8 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 cancelled, orally or
otherwise, except as provided in the Credit Agreement.
8.9 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.
8.10 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.
8.11 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.
8.12 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, 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 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
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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, ▇▇▇▇▇▇▇ & 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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▇▇▇▇▇ ▇▇▇▇▇ 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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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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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS
L.P., as a Lender
By
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Title
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A-3
EXHIBIT A
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
July [ ], 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.
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 Second Amendment and Waiver (the "Amendment
and Waiver") to the Post-Confirmation Credit Agreement dated as of October 20,
2000 (as so amended and as the same may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement").
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 Waiver and that, upon
such effectiveness, all references in such Loan Document to the "Credit
Agreement" shall be references to the Credit Agreement as amended by 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 and (iii) 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
FOREGOING 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 FOREGOING 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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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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PAXCIS NETWORKS, INC.
By
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Title
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