Tokheim Corporation and Subsidiaries
Exhibit (4.22)
Execution Copy
CONSENT AND AMENDMENT NO. 1
TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 11, 1999
THIS CONSENT AND AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT
AGREEMENT ("Amendment") is made as of January 11, 1999 by and among TOKHEIM
CORPORATION, an Indiana corporation (the "Company"), GASBOY INTERNATIONAL, INC.,
a Pennsylvania corporation ("Gasboy"), the financial institutions listed on the
signature pages hereof (the "Lenders"), NBD BANK, N.A., in its individual
capacity as a Lender and as contractual representative on behalf of the Lenders
(the "Administrative Agent"), CREDIT LYONNAIS, as Documentation and Collateral
Agent, and GLEACHER NATWEST INC. and BANKERS TRUST COMPANY, as Co-Syndication
Agents under that certain Second Amended and Restated Credit Agreement dated as
of December 14, 1998 by and among the Company, Gasboy, the Lenders, the
Administrative Agent, the Documentation and Collateral Agent, and the Co-
Syndication Agents (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS, the Company, Gasboy, the Lenders, the Administrative Agent,
the Documentation and Collateral Agent, and the Co-Syndication Agents are
parties to the Credit Agreement;
WHEREAS, the Company intends to issue (i) up to $210 million in
aggregate principal amount of Senior Subordinated Notes due 2008 bearing
interest at a per annum rate not more than 12% (the "Senior Subordinated Notes")
and (ii) up to $70 million in aggregate principal amount of Junior Subordinated
Notes due 2009 and bearing interest at a per annum rate not more than 14% (the
"Junior Subordinated Notes", and, together with the Senior Subordinated Notes,
the "Subordinated Notes"); and
WHEREAS, the Company has requested that the Lenders (a) amend the
Credit Agreement (i) to permit the offering and issuance of the Subordinated
Notes, (ii) to reduce permanently the Aggregate Revolving Loan Commitment, and
(iii) to amend the Credit Agreement in certain other respects and (b) consent to
the offering and issuance of the Subordinated Notes; and
WHEREAS, the Lenders, the Administrative Agent, the Documentation and
Collateral Agent, and the Co-Syndication Agents are willing to amend the Credit
Agreement and consent to the offering and issuance of the Subordinated Notes on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company, Gasboy, the Lenders, the Administrative Agent, the Documentation and
Collateral Agent, and the Co-Syndication Agents have agreed to the following
amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of January 11, 1999 and
subject to the satisfaction of the conditions precedent set forth in Section 3
below, the Credit Agreement is hereby amended as follows:
1.1 Section 1.1 of the Credit Agreement is hereby amended (i) to
insert the phrase "; provided, that the Aggregate Revolving Loan Commitment
shall be reduced on a dollar-for-dollar basis ratably among the Lenders with
Revolving Loan Commitments in an amount equal to the proceeds received by the
Company from the sale of any Senior Subordinated Notes in an original principal
amount in excess of $200,000,000 net of costs, fees and expenses allocated
ratably to such notes in excess of $200,000,000" immediately at the end of the
definition of Aggregate Revolving Loan Commitment; (ii) to delete the definition
of "Change in Control" and to substitute the following therefor:
"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission of the Securities
Exchange Act of 1934) of 25% or more of the outstanding shares of voting
stock of the Company, or (b) any other event occurs which would constitute
a "Change of Control" (under and as defined in the Junior Subordinated
Indenture and/or the Senior Subordinated Indenture).
; (iii) to insert the phrase "plus the fees, costs and expenses of the Company
incurred in connection with the issuance on the Closing Date of the Seller
Subordinated Notes and Seller Equity Interests issued to Schlumberger or any
other Person in payment of, or to finance payment of, a portion of the purchase
price for the Schlumberger Acquisition that had been capitalized to the extent
they have been written off by the Company" immediately prior to the period (".")
now appearing at the end of the definition of "Consolidated Net Worth"; (iv) to
delete the phrase "Seller Junior Subordinated Note" now appearing in the
definition of "Leverage Ratio", and to substitute the phrase "prior to the
Junior Subordinated Note Issuance Date, the Seller Junior Subordinated Notes,
and from and after the Junior Subordinated Note Issuance Date, the Junior
Subordinated Notes" therefor; (v) to delete the phrase "Seller Subordinated
Notes" now appearing in the definition of "Permitted Subordinated Debt", and to
substitute the phrase "prior to the Issuance Date, the Seller Subordinated
Notes, and from and after the Issuance Date, the Subordinated Notes" therefor;
(vi) to delete the phrase "Seller Subordinated Notes" now appearing in the
definition of "Senior Leverage Ratio", and to substitute the phrase "prior to
the Issuance Date, the Seller Subordinated Notes, and from and after the
Issuance Date, the Subordinated Notes" therefor; and (vii) to insert the
following new definitions alphabetically therein:
"Issuance Date" means the Junior Subordinated Note Issuance Date
and/or the Senior Subordinated Note Issuance Date, as applicable.
"Junior Subordinated Indenture" means that certain Indenture, dated as
of or prior to April 30, 1999, between the Company, certain of the
Company's Subsidiaries, as junior subordinated guarantors thereunder, and
Xxxxxx Trust and Savings Bank, as Trustee, as amended, restated or modified
in accordance with Section 6.27.
"Junior Subordinated Note Issuance Date" shall mean the date of the
issuance and sale by the Company of the Junior Subordinated Notes.
"Junior Subordinated Notes" means those certain Junior Subordinated
Notes due 2009 bearing interest at an effective per annum rate not more
than 14% and providing for payment in kind in lieu of cash of any portion
of the interest due through January 2005, issued by the Company in the
aggregate original principal amount of up to $70,000,000 plus any
additional principal amount accruing from the payment of interest in kind
pursuant to the Junior Subordinated Indenture, as amended, restated or
modified in accordance with Section 6.27 and shall include all guaranties
by Subsidiaries of the Company with respect to such Junior Subordinated
Notes .
"Junior Subordinated Offering Memorandum" means the Offering
Memorandum, dated January __, 1999, relating to the Company's offering and
placement of the Junior Subordinated Notes.
"Senior Subordinated Indenture" means that certain Indenture, dated as
of or prior to April 30, 1999, between the Company, certain of the
Company's Subsidiaries, as senior subordinated guarantors thereunder, and
Xxxxxx Trust and Savings Bank, as Trustee, as amended, restated or modified
in accordance with Section 6.27.
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"Senior Subordinated Note Issuance Date" shall mean the date of the
issuance and sale by the Company of the Senior Subordinated Notes.
"Senior Subordinated Notes" means those certain Senior Subordinated
Notes due 2008 bearing interest at a per annum rate not more than 12%,
issued by the Company in the aggregate principal amount of up to
$210,000,000 pursuant to the Senior Subordinated Indenture, as amended,
restated or modified in accordance with Section 6.27 and shall include all
guaranties by Subsidiaries of the Company with respect to such Senior
Subordinated Notes.
"Senior Subordinated Offering Memorandum" means the Offering
Memorandum, dated January __, 1999, relating to the Company's offering and
placement of the Senior Subordinated Notes.
"Subordinated Notes" means the Senior Subordinated Notes and the
Junior Subordinated Notes issued by the Company primarily to refinance all
or a portion of certain subordinated notes issued to Schlumberger or any
other Person in payment of, or to finance payment of, a portion of the
purchase price for the Schlumberger Acquisition, in each case as amended,
restated or otherwise modified from time to time in accordance with Section
6.27.
1.2 Section 6.28 of the Credit Agreement is hereby deleted in its
entirety, and the following is substituted therefor:
6.28 Payments and Prepayments. Neither the Company nor any of its
Subsidiaries shall make any (a) payment or prepayment of principal, fees or
other charges (other than payments of interest due on an unaccelerated
basis and subject to the provisions of the Senior Subordinated Indenture)
on or with respect to, or any redemption, purchase, retirement, defeasance,
sinking fund or payment on any claim for damages or rescission with respect
to the Senior Subordinated Notes and Permitted Refinancing Indebtedness in
respect thereof except for any refinancing otherwise permitted under this
Agreement, or (b) payment or prepayment of principal, fees or other charges
(other than payment in kind in lieu of cash of any portion of the interest
due on an unaccelerated basis and subject to the provisions of the Junior
Subordinated Indenture) on or with respect to, or any redemption, purchase,
retirement, defeasance, sinking fund or payment on any claim for damages or
rescission with respect to the Junior Subordinated Notes and Permitted
Refinancing Indebtedness in respect thereof except for any refinancing
otherwise permitted under this Agreement, or (c) payment or prepayment on
or with respect to, or any redemption, purchase, retirement, defeasance,
sinking fund or payment on any claim for damages or rescissions with
respect to the Seller Equity Interests at any time after April 30, 1999.
1.3 Section 8.2 of the Credit Agreement is hereby amended to delete
the phrase "; provided, further that no such supplemental agreement shall permit
or consent to the prepayment, purchase, redemption, defeasance or refinancing
(other than through the incurrence of Permitted Refinancing Indebtedness or the
issuance of Equity Interests) of the Seller Junior Subordinated Note or the
Seller Equity Interests without the consent of the Required Lenders (including
the Administrative Agent)" now appearing therein.
2. Consent. The Administrative Agent and the Required Lenders consent to
the issuance of the Junior Subordinated Notes and the Senior Subordinated Notes
on the following terms and conditions:
(a) On or before April 30, 1999, the offering and sale of the
Subordinated Notes shall have been consummated in compliance with the
provisions of the Securities Act of 1933, as amended, any other federal
securities law, state securities or "Blue Sky" law or applicable general
corporation law, and, in each case, the rules and regulations thereunder.
(b) On or before April 30, 1999, all conditions precedent to, and all
consents necessary to permit, the offering and sale of the Subordinated
Notes shall have been satisfied or delivered, or, to the extent material to
the Lenders, waived with the prior written consent of the Administrative
Agent, and no action
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shall have been taken by any competent authority which restrains, prevents
or imposes material adverse conditions upon, or seeks to restrain, prevent
or impose material adverse conditions upon, the offering or sale of the
Subordinated Notes.
(c) On or before April 30, 1999, the offering and sale of the Senior
Subordinated Notes shall have been consummated, the Senior Subordinated
Notes due 2008 in an aggregate original principal amount of not greater
than $210,000,000 bearing interest at a per annum rate not more than 12%
shall have been issued pursuant to the Senior Subordinated Indenture (which
shall contain other terms substantially identical in all material respects
to those contained in the Description of the Senior Subordinated Notes
(draft December 29, 1998) distributed to the Lenders by Sidley & Austin on
December 30, 1998), the Junior Subordinated Notes due 2009 in an aggregate
original principal amount of not greater than $70,000,000 bearing interest
at an effective per annum rate not more than 14% and providing for payment
in kind in lieu of cash of any portion of the interest due through January
2005 shall have been issued pursuant to the Junior Subordinated Indenture
(which shall contain other terms substantially identical in all material
respects to those contained in the Description of the Junior Subordinated
Notes (draft December 29, 1998) distributed to the Lenders by Sidley &
Austin on December 30, 1998), and the Company shall have received the
proceeds thereof and applied such proceeds as provided in the Senior
Subordinated Offering Memorandum and the Junior Subordinated Offering
Memorandum, respectively with no portion thereof being required by the
Lenders to be applied as a prepayment of the Obligations under the Credit
Agreement except, to the extent necessary, in connection with any reduction
of the Aggregate Revolving Loan Commitment.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of January 11, 1999, only so long as the
Administrative Agent shall have received each of the following on or before
January 20, 1999:
(a) duly executed originals of this Amendment from the Company,
Gasboy, the Administrative Agent and the Required Lenders;
(b) duly executed originals of the Reaffirmation attached hereto from
each Guarantor Subsidiary; and
(c) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
4. Amendment Fee. Each Lender that delivers a duly executed signature
page to this Amendment to Xxxxx X. Xxxxx, Xxxxxx & Xxxxxx, at 312-853-7036 by
5:00 p.m. (Chicago time) on Monday, January 11, 1999, shall be entitled to an
Amendment Fee of 0.125% of such Lender's Commitment (as defined in the Credit
Agreement) provided this Amendment is approved by the Required Lenders
(including the Administrative Agent) and the Company issues any of the Junior
Subordinated Notes (as defined in this Amendment). The Amendment Fee shall be
due and payable upon the first date of the issuance by the Company of any of the
Junior Subordinated Notes.
5. Representations and Warranties of the Company. The Company and Gasboy
hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement as previously executed
and as amended hereby, constitute legal, valid and binding obligations of the
Company and Gasboy and are enforceable against the Company and Gasboy in
accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Company and Gasboy
hereby reaffirm all covenants, representations and warranties made in the Credit
Agreement, to the extent the same are not amended hereby, and agree that all
such covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment (unless expressly made as of a
different date).
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6. Reference to the Effect on the Credit Agreement.
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(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Second Amended and Restated Credit Agreement dated as of December 14, 1998, as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement and
all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or any of the Lenders, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
7. Costs and Expenses. The Company agrees to pay all reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys'
fees charged to the Administrative Agent) incurred by the Administrative Agent
in connection with the preparation, execution and enforcement of this Amendment.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING WITHOUT LIMITATION, 735 ILCS
105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
TOKHEIM CORPORATION, as a Borrower
By: ______________________________
Name:
Title:
GASBOY INTERNATIONAL, INC., as a Borrower
By: ______________________________
Name:
Title:
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NBD BANK, N.A., as Administrative Agent, as a Lender,
as Issuing Lender, and a Swing Loan Lender
By: ______________________________
Name:
Title:
CREDIT LYONNAIS, CHICAGO BRANCH,
as Documentation and Collateral Agent and as a Lender
By: ______________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC, as Co-Syndication Agent
and as a Lender
By: ______________________________
Name:
Title:
BANKERS TRUST COMPANY, as Co-Syndication Agent and as a
Lender
By: ______________________________
Name:
Title:
ABN AMRO BANK N.V., as a Lender
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
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CREDIT AGRICOLE INDOSUEZ, as a Lender
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, as a Lender
By: ______________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
as a Lender
By: ______________________________
Name:
Title:
MERCANTILE BANK N.A., as a Lender
By: ______________________________
Name:
Title:
THE PROVIDENT BANK, as a Lender
By: ______________________________
Name:
Title:
FINOVA CAPITAL CORPORATION, as a Lender
By: ______________________________
Name:
Title:
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IMPERIAL BANK, as a Lender
By: ______________________________
Name:
Title:
NATEXIS BANQUE BFCE, as a Lender
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO S.A. GROUP, NEW
YORK BRANCH, as a Lender
By: ______________________________
Name:
Title:
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as Investment
Advisor
By: ______________________________
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST, as a Lender
By: Xxxxx Xxxxx Management, as Investment Advisor
By: ______________________________
Name:
Title:
OXFORD STRATEGIC INCOME FUND, as a Lender
By: Xxxxx Xxxxx Management, as Investment Advisor
By: ______________________________
Name:
Title:
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ML CLO XX PILGRIM AMERICA (CAYMAN) LTD., as a Lender
By: Pilgrim Investments, Inc., as its Investment
Manager
By: ______________________________
Name:
Title:
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD., as a Lender
By: Pilgrim Investments, Inc., as Investment Manager
By: ______________________________
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO , as a Lender
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By: ______________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC., as a
Lender
By: ______________________________
Name:
Title:
OCTAGON LOAN TRUST, as a Lender
By: Octagon Credit Investors, as Manager
By: ______________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA, LIMITED, as a Lender
By: Indosuez Capital Luxembourg, as Collateral Manager
By: ______________________________
Name:
Title:
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INDOSUEZ CAPITAL FUNDING IV, LP, as a Lender
By: Indosuez Capital Luxembourg, as Collateral Manager
By: ______________________________
Name:
Title:
ALLIANCE INVESTMENT OPPORTUNITIES FUND, L.L.C., as a
Lender
By: ALLIANCE INVESTMENT OPPORTUNITIES MANAGEMENT,
L.L.C., as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT L.P., as Managing
Member
By: ALLIANCE CAPITAL MANAGEMENT CORPORATION, as
General Partner
By: ______________________________
Name:
Title:
KZH RIVERSIDE LLC, as a Lender
By: ______________________________
Name:
Title:
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REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the
foregoing Consent and Amendment No. 1 to the Second Amended and Restated Credit
Agreement dated as of December 14, 1998 by and among TOKHEIM CORPORATION, an
Indiana corporation (the "Company"), GASBOY INTERNATIONAL, INC., a Pennsylvania
corporation ("Gasboy"), the financial institutions listed on the signature pages
hereof (the "Lenders"), NBD BANK, N.A., in its individual capacity as a Lender
and as contractual representative on behalf of the Lenders (the "Administrative
Agent"), CREDIT LYONNAIS, as Documentation and Collateral Agent, and GLEACHER
NATWEST INC. and BANKERS TRUST COMPANY, as Co-Syndication Agents (as amended and
as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") which Consent and Amendment No. 1 is dated
as of January __, 1999 (the "Amendment"). Capitalized terms used in this
Reaffirmation and not defined herein shall have the meanings given to them in
the Credit Agreement. Without in any way establishing a course of dealing by
the Administrative Agent or any Lender, each of the undersigned reaffirms the
terms and conditions of the Subsidiary Guaranty and any other Loan Document
executed by it and acknowledges and agrees that such agreement and each and
every such Loan Document executed by the undersigned in connection with the
Credit Agreement remains in full force and effect and are hereby reaffirmed,
ratified and confirmed. All references to the Credit Agreement contained in the
above-referenced documents shall be a reference to the Credit Agreement as so
modified by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
Dated: January __, 1999
TOKHEIM AUTOMATION CORPORATION
ENVIROTRONIC SYSTEMS, INC.
TOKHEIM INVESTMENT CORP.
SUNBELT HOSE & PETROLEUM
EQUIPMENT, INC.
GASBOY INTERNATIONAL, INC.
MANAGEMENT SOLUTIONS, INC.
TOKHEIM EQUIPMENT CORPORATION
TOKHEIM RPS, LLC
By: Gasboy International, Inc.
On behalf of each of the above-listed parties
By: _______________________________
Name:
Title:
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