Exhibit 4.9
FOURTH AMENDMENT AND CONSENT
THIS FOURTH AMENDMENT AND CONSENT, dated as of February 8, 2002 (this
"Amendment and Consent"), is given under the Post-Confirmation Credit Agreement
dated as of October 20, 2000 (as amended by the First Amendment dated as of
March 14, 2001, the Second Amendment and Waiver dated as of July 23, 2001 and
the Third Amendment and Consent dated as of October 31, 2001, and as further
amended hereby, the "Credit Agreement"), among TOKHEIM CORPORATION, an Indiana
corporation (the "Company"), various subsidiaries thereof (together with the
Company, the "Borrowers"), various financial institutions as lenders (the
"Lenders"), AMSOUTH BANK, as a Lender and as documentation agent for the Lenders
(the "Documentation Agent"), and ABN AMRO BANK N.V., as a Lender, as Issuing
Lender and as administrative agent for the Lenders (the "Administrative Agent",
and together with the Documentation Agent, the "Agents").
WHEREAS, the Borrowers have requested that the Required Lenders consent to
an Investment by a Subsidiary of the Company in a certain joint venture in the
Republic of South Africa as hereinafter set forth, and the Required Lenders are
willing to give such consent, subject to the terms and conditions hereinafter
set forth; and
WHEREAS, the Borrowers have requested that the Required Revolving Lenders
delete a sublimit in the Credit Agreement on the amount of Standby Letters of
Credit as hereinafter set forth, and the Required Revolving Lenders are willing
to remove such sublimit, 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. CONSENT. Subject to the occurrence of the Effective Date, the
Required Lenders hereby consent pursuant to clause (p) of Section 10.20
("Investments") of the Credit Agreement to the making of an Investment by
Tokheim South Africa (Pty) Ltd., a Wholly-Owned Foreign Subsidiary of the
Company ("TSAL"), in a joint venture (the "Joint Venture") in the Republic of
South Africa with Milleneum Pump Services (Western Cape) (Pty) Ltd., for the
purposes and on the terms and conditions described in Attachment A hereto;
provided that the amount of the Investment by TSAL shall not exceed in the
aggregate $5,000.
SECTION 2. AMENDMENT. In reliance on the representations and warranties set
forth in this Amendment and Consent and subject to satisfaction of the
conditions set forth in Section 5 hereof, the Borrowers and, pursuant to clause
(iv) of Section 14.1 ("Waiver; Amendments") of the Credit Agreement, the
Required Revolving Lenders hereby agree to amend Section 2.1.5 ("L/C
Commitment") of the Credit Agreement by deleting the text of clause (b)(ii)
thereof and substituting in lieu thereof the following:
"[intentionally omitted]".
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents
and the Lenders to enter into this Amendment and Consent, the Borrowers, jointly
and severally, represent and warrant (which representations and warranties shall
survive the execution and delivery hereof) to the Agents and the Lenders that:
(a) the representations and warranties in the Credit Agreement and the
other Loan Documents are true and correct in all material respects on and as of
the Effective Date (as such term is defined in Section 5 herein) with the same
effect as if made on and as of the Effective Date (except to the extent relating
solely to an earlier date, in which case they were true and correct as of such
earlier date);
(b) no Event of Default or Unmatured Event of Default exists or will
exist after giving effect to this Amendment and Consent;
(c) the execution and delivery by the Borrowers of this Amendment and
Consent and the performance by the Borrowers of their obligations under the
Credit Agreement and the other Loan Documents (i) are within the corporate or
limited liability company, as applicable, powers of each Borrower, (ii) have
been duly authorized by all necessary corporate or limited liability company
action, as applicable, (iii) have received all necessary approvals from all
governmental authorities having jurisdiction over any Borrower and (iv) do not
and will not conflict with any provision of any law, rule, regulation,
requirement, administrative order, decree or agreement that is binding on the
Company or any of its Subsidiaries or with any provision of the certificate of
incorporation or bylaws or other organizational documents of any Borrower;
(d) the Credit Agreement and the other Loan Documents are the legal,
valid and binding obligations of each Borrower, enforceable against such
Borrower in accordance with their terms, subject to bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and
subject to general principles of equity (regardless of whether considered in a
proceeding at law or in equity);
(e) as of January 14, 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
$119,372,297.12 and (iv) the aggregate outstanding principal amount of all
Revolving Loans is $29,537,401.14, including the Stated Amount of all Letters of
Credit in the aggregate amount of $2,537,401.14;
(f) 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;
and
(g) Attachment A hereto contains a true and accurate description of
the Joint Venture and the proposed Investment by TSAL in the Joint Venture.
SECTION 4. LIMITED AMENDMENT AND CONSENT. This Amendment and Consent shall
be limited precisely as written and shall not be deemed (i) to be an amendment
of or a consent granted to any other term or condition of the Credit Agreement,
any Loan Document or any of the instruments or agreements referred to in such
documents or a waiver of any Default or Event of Default under the Credit
Agreement, whether or not known to any of the Agents or the Lenders, or (ii) to
prejudice any other right or rights that the Agents or the Lenders may now or in
the future have under or in connection with the Credit Agreement, any other Loan
Document or any instruments or agreements referred to therein.
SECTION 5. EFFECTIVENESS. The consent set forth in Section 1 above and the
amendment set forth in Section 2 above shall become effective as of the date
hereof (the "Effective Date"), subject to satisfaction of the following
conditions:
2
(a) receipt by the Administrative Agent of:
(i) a counterpart of this Amendment and Consent executed by the
Borrowers and the Required Lenders;
(ii) a counterpart of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit 1 hereto, executed by
each Loan Party;
(b) such other documents as the Administrative Agent or any Lender may
reasonably request;
(c) all legal matters in connection with this Amendment and Consent,
the Credit Agreement and the other Loan Documents shall be reasonably
satisfactory to Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel for the
Administrative Agent;
(d) in immediately available funds, payment of all outstanding
amounts, if any, that have been invoiced by or on behalf of the Administrative
Agent and unpaid as of the date hereof with respect to all reimbursable fees,
charges or expenses payable in accordance with the terms and provisions of the
Credit Agreement and the other Loan Documents, including, without limitation,
all Attorney Costs of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel for the
Administrative Agent, and all fees and disbursements of FTI Xxxxxxxx & Xxxxx,
financial advisor to such counsel; and
(e) no Event of Default shall have occurred and be continuing, and no
Unmatured Event of Default shall occur or be continuing upon the effectiveness
of this Amendment and Consent. The Administrative Agent shall give notice to the
Borrowers upon the occurrence of the Effective Date.
SECTION 6. MISCELLANEOUS.
-------------
6.1 Continuing Effectiveness, etc. The Credit Agreement and the other Loan
Documents shall remain in full force and effect after giving effect to this
Amendment and Consent and are hereby ratified and confirmed in all respects.
After the Effective Date, all references to the "Credit Agreement" or similar
terms in the Credit Agreement, the Notes, each other Loan Document and any
similar document shall refer to the Credit Agreement as hereby amended and as
previously amended, modified or supplemented. This Amendment and Consent shall
constitute a Loan Document as defined in the Credit Agreement, and the
provisions of this Amendment and Consent may be amended, modified or
supplemented, or any provision thereof waived, only in accordance with and
subject to the provisions of the Credit Agreement.
6.2 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.
6.3 Counterparts. This Amendment and Consent may be executed in any number
of counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Amendment and
3
Consent. Delivery of an executed counterpart of a signature page of this
Amendment and Consent by facsimile shall be as effective as delivery of a
manually executed counterpart of this Amendment and Consent.
6.4 Expenses. The Company agrees to pay the reasonable out-of-pocket costs
and expenses of the Administrative Agent (including Attorney Costs) in
connection with the preparation, execution and delivery of this Amendment and
Consent.
6.5 GOVERNING LAW. THIS AMENDMENT AND CONSENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE WHOLLY PERFORMED WITHIN THE STATE OF NEW YORK.
6.6 Successors and Assigns. This Amendment and Consent shall be binding
upon the Borrowers, the Lenders and the Agents and their respective successors
and assigns, and shall inure to the benefit of the Borrowers, the Lenders and
the Agents and their respective successors and assigns; provided that no
Borrower shall have any right to assign this Amendment and Consent except to the
extent permitted by the first sentence of Section 14.9.1 of the Credit
Agreement.
6.7 Consultation with Advisors. The Loan Parties acknowledge that they have
consulted with counsel and with such other experts and advisors as they have
deemed necessary in connection with the negotiation, execution and delivery of
this Amendment and Consent. This Amendment and Consent shall be construed
without regard to any presumption or any rule requiring that it be construed
against the party causing this Amendment and Consent or any part hereof to be
drafted.
6.8 Entire Agreement. This Amendment and Consent sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in this Amendment and Consent, no
representations, warranties or commitments, express or implied, have been made
by any party to any other party with respect to the subject matter of this
Amendment and Consent. None of the terms or conditions of this Amendment and
Consent may be changed, modified, waived or cancelled, orally or otherwise,
except as provided in the Credit Agreement.
6.9 Enforceability. Should any one or more of the provisions of this
Amendment and Consent be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
6.10 Invalidity; Severability. Whenever possible, each provision of this
Amendment and Consent shall be interpreted in such manner as to be effective and
valid under all applicable laws, rules and regulations. Any provision of this
Amendment and Consent that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
6.11 Headings. The headings of this Amendment and Consent are for the
purpose of reference only and shall not affect the construction of, or be taken
into consideration in interpreting, this Amendment and Consent.
4
6.12 Definitions. Capitalized terms used in this Amendment and Consent that
are not defined herein but are defined in the Credit Agreement shall have the
meaning given to such terms in the Credit Agreement.
SECTION 7. RELEASE OF CLAIMS. EACH BORROWER HEREBY ACKNOWLEDGES AND AGREES
THAT IT DOES NOT HAVE ANY DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM
OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF THE LIABILITY OF SUCH BORROWER TO REPAY ANY AGENT
OR ANY LENDER AS PROVIDED IN THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM ANY AGENT OR
ANY LENDER OR ANY OF THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENTS AND THE LENDERS, AND EACH AGENT'S AND EACH LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, MATURED
OR UNMATURED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW
OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT AND CONSENT IS EXECUTED, THAT SUCH BORROWER MAY NOW OR HEREAFTER HAVE
AGAINST ANY SUCH AGENT OR LENDER, AND SUCH AGENT'S OR LENDER'S PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER
ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATION OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY
UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AND NEGOTIATION AND
EXECUTION OF THIS AMENDMENT AND CONSENT. THE RELEASES AND DISCHARGES IN THIS
SECTION 7 SHALL BE EFFECTIVE REGARDLESS OF WHETHER THE CONDITIONS TO THE
EFFECTIVENESS OF THIS AMENDMENT AND CONSENT ARE SATISFIED AND REGARDLESS OF ANY
OTHER EVENT THAT MAY OCCUR OR NOT OCCUR AFTER THE DATE HEREOF.
[Remainder of page intentionally left blank; signatures on following pages.]
5
Delivered as of the day and year first above written.
TOKHEIM CORPORATION
By
-------------------------------------------
Title
----------------------------------------
By
-------------------------------------------
Title
----------------------------------------
GASBOY INTERNATIONAL, INC.
By
-------------------------------------------
Title
----------------------------------------
TOKHEIM INVESTMENT CORP.
By
-------------------------------------------
Title
----------------------------------------
MANAGEMENT SOLUTIONS, INC.
By
-------------------------------------------
Title
----------------------------------------
SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
-------------------------------------------
Title
----------------------------------------
TOKHEIM SERVICES LLC
By
-------------------------------------------
Title
----------------------------------------
TOKHEIM RPS, LLC
By
-------------------------------------------
Title
----------------------------------------
SIGNATURE PAGE TO TOKHEIM FOURTH AMENDMENT AND CONSENT
ABN AMRO BANK N.V., as Administrative Agent,
as Issuing Lender and as a Lender
By
-------------------------------------------
Title
----------------------------------------
By
-------------------------------------------
Title
----------------------------------------
AMSOUTH BANK, as Documentation Agent and as
a Lender
By
-------------------------------------------
Title
----------------------------------------
BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as a Lender
By
-------------------------------------------
Title
----------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By
-------------------------------------------
Title
----------------------------------------
CREDIT AGRICOLE INDOSUEZ, as a Lender
By
-------------------------------------------
Title
----------------------------------------
By
-------------------------------------------
Title
----------------------------------------
BEAR, XXXXXXX & CO., INC., as a Lender
By
-------------------------------------------
Title
----------------------------------------
BANKERS TRUST COMPANY, as a Lender
By
-------------------------------------------
Title
----------------------------------------
SIGNATURE PAGE TO TOKHEIM FOURTH AMENDMENT AND CONSENT
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By
-------------------------------------------
Title
----------------------------------------
XXXXX XXXXX SENIOR INCOME TRUST, as a Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
-------------------------------------------
Title
----------------------------------------
OXFORD STRATEGIC INCOME FUND, as a Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
-------------------------------------------
Title
----------------------------------------
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: Xxxxx Xxxxx Management, as Investment
Advisor
By
-------------------------------------------
Title
----------------------------------------
CREDIT INDUSTRIEL ET COMMERCIAL, as a Lender
By
-------------------------------------------
Title
----------------------------------------
By
-------------------------------------------
Title
----------------------------------------
FINOVA CAPITAL CORPORATION, as a Lender
By
-------------------------------------------
Title
----------------------------------------
SIGNATURE PAGE TO TOKHEIM FOURTH AMENDMENT AND CONSENT
BANK PEKAO SA (FORMERLY KNOWN AS BANK
POLSKA KASA OPIEKI S.A., NEW YORK BRANCH),
as a Lender
By
-------------------------------------------
Title
----------------------------------------
OCTAGON INVESTMENT PARTNERS II, LLC, as a
Lender
By
-------------------------------------------
Title
----------------------------------------
OAKTREE CAPITAL MANAGEMENT, LLC, as agent
and on behalf of certain funds and accounts,
as a Lender
By
-------------------------------------------
Title
----------------------------------------
ARES LEVERAGED INVESTMENT FUND II, L.P., as a
Lender
By: ARES Management II, L.P., its General
Partner
By
-------------------------------------------
Title
----------------------------------------
WHIPPOORWILL/TOKHEIM OBLIGATIONS TRUST-2000,
as a Lender
By: Whippoorwill Associates, Incorporated, as
its investment representative and advisor
By
-------------------------------------------
Title
----------------------------------------
BARCLAYS BANK PLC, as a Lender
By
-------------------------------------------
Title
----------------------------------------
XXXXXXX XXXXX CREDIT PARTNERS L.P., as a
Lender
By
-------------------------------------------
Title
----------------------------------------
SIGNATURE PAGE TO TOKHEIM FOURTH AMENDMENT AND CONSENT
ATTACHMENT A
EXPLANATION OF TOKHEIM SOUTH AFRICA
(PTY) LTD.'S PROPOSED JOINT VENTURE
In order to address newly enacted regulations in South Africa, Tokheim
Corporation ("Tokheim") proposes a joint venture between its subsidiary Tokheim
South Africa (Pty) Ltd. ("TSAL") and Milleneum Pump Services (Western Cape)
(Pty) Ltd ("Milleneum").
Currently, TSAL has approximately 20 service technicians covering only part of
South Africa. This business generates revenues of around $2.5 million per year,
although it is not profitable. The facilities in South Africa are a main
building for dispenser assembly and a small service building for refurbishments
and spare parts.
Milleneum was established in June 1999, with a head office in Cape Town and a
branch in Port Xxxxxxxxx. Milleneum's main business is in field maintenance on
all makes of dispensers and pumps, as well as installation and maintenance of E
Fuel equipment. It also has a workshop that refurbishes all makes of dispensers
and pumps. Through 15 service vehicles and 27 employees, Milleneum is able to
provide service from 8 technician bases throughout the country. Milleneum's
major customers are Xxxxx, XX, Afric Oil and Excel.
New regulations in South Africa require that companies should be progressively
moving toward majority ownership by Blacks or Indians, known as "Black
Empowerment". The regulations specifically address the oil companies, who, in
turn, have requested the same compliance from their suppliers, e.g., TSAL. As
Milleneum is a company with Black ownership, a joint venture between the two
companies would ensure compliance with regulations. Due to the presence of a
similar business focus by both TSAL and Milleneum, the joint venture would
complement both existing businesses.
The proposed joint venture would ensure TSAL's compliance with the new
regulations, as well as provide additional customer service potential. This
would allow TSAL to provide service contracts to customers for the whole
territory, thus minimizing limitations set by the current regional coverage. At
present, only Tokheim's competitor, Marconi, offers this service. Market share
in this region is expected to increase as a result of this wider coverage area
and competition may be slightly reduced.
The joint venture would comprise a 49% ownership by TSAL and a 51% ownership by
Milleneum, with voting rights allocated in accordance with ownership levels.
Existing laws in South Africa require that all decisions regarding joint
ventures must be unanimously agreed by the company's shareholders. Thus, the
risk associated with the absence of a majority interest holding by TSAL would be
minimal.
Initial investment in this joint venture would be only U.S.$2,000. The joint
venture would itself have no employees; its sole function would be to allow TSAL
to present a single offer to a customer, covering all of South Africa. Any
customer not requiring compliance with Black Empowerment could still be handled
through TSAL rather than the joint venture. Due to this minimal level of
investment, TSAL could easily liquidate the investment should it become
necessary.
The joint venture would be designed through its Articles of Association in such
a way as to guarantee coverage of all costs. Any costs incurred by either TSAL
or Milleneum in the administration of the joint venture would be recharged to
the new company at a fixed xxxx-up, yet to be determined. As the joint venture
would engage subcontractors, the contracts between the joint venture and the
subcontractors would be drawn in such a fashion as to ensure that in cases of
claims against such subcontractors, no liability would exist for the joint
venture in excess of a specific minimum insurance requirement.
ATTACHMENT A
However, as the joint venture would handle all dealings with the final
customers, the joint venture would have to act as intermediary for all such
claims.
Compliance with the new regulations necessitates a change in Tokheim's service
business in South Africa. The new regulations are such that TSAL must create a
joint venture to handle service contracts with the oil companies. Alternatively,
Tokheim could divest the service business in South Africa. Overall, this
proposal will increase market share in South Africa in the maintenance sector,
as well as show an effort on the part of Tokheim to comply with local
regulations.
ATTACHMENT A - Page 2
EXHIBIT 1
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
February ___ , 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 Fourth Amendment and Consent dated as of the date
hereof (the "Amendment and Consent") given under the Post-Confirmation Credit
Agreement dated as of October 20, 2000 (as amended and as the same may be
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings given to such terms in 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 Consent and that, upon such
effectiveness, all of the references in each such Loan Document to the "Credit
Agreement" shall be references to the Credit Agreement as amended by the
Amendment and Consent, (ii) acknowledges and agrees that its obligations under
the Loan Documents are absolute and unconditional, and that it does not have any
right of setoff, recoupment, claim, counterclaim or defense of any kind or
nature whatsoever that can be asserted to reduce or eliminate such obligations
or to seek affirmative relief or damages of any kind or nature from any Agent or
any Lender, or any of their predecessors, agents, employees, successors and
assigns, (iii) reaffirms and admits the validity and enforceability of the Loan
Documents and the Liens in the Collateral granted pursuant to the Loan Documents
or otherwise and (iv) VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES
THE AGENTS AND THE LENDERS, AND EACH AGENT'S AND LENDER'S PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS,
CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, KNOWN OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, MATURED OR UNMATURED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THE AMENDMENT AND CONSENT IS EXECUTED,
THAT IT MAY NOW OR HEREAFTER HAVE AGAINST ANY SUCH AGENT OR LENDER, OR SUCH
AGENT'S OR LENDER'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF
ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAW OR REGULATION, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE
EXERCISE OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND NEGOTIATION AND EXECUTION OF THE AMENDMENT AND CONSENT. THE
RELEASES AND DISCHARGES IN THIS LETTER AGREEMENT SHALL BE EFFECTIVE REGARDLESS
OF WHETHER THE CONDITIONS TO THE
EXHIBIT 1
EFFECTIVENESS OF THE AMENDMENT AND CONSENT ARE SATISFIED AND REGARDLESS OF ANY
OTHER EVENT THAT MAY OCCUR OR NOT OCCUR AFTER THE DATE HEREOF.
This letter agreement may be signed in counterparts and by the various
parties hereto on separate counterparts. Each such counterpart shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same letter agreement. Delivery of an executed counterpart of a signature
page of this letter agreement by facsimile shall be as effective as delivery of
a manually executed counterpart of this letter agreement.
This letter agreement shall be governed by the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State.
TOKHEIM CORPORATION
By
-------------------------------------------
Title
----------------------------------------
By
-------------------------------------------
Title
----------------------------------------
GASBOY INTERNATIONAL, INC.
By
-------------------------------------------
Title
----------------------------------------
TOKHEIM INVESTMENT CORP.
By
-------------------------------------------
Title
----------------------------------------
MANAGEMENT SOLUTIONS, INC.
By
-------------------------------------------
Title
----------------------------------------
SUNBELT HOSE & PETROLEUM EQUIPMENT INC.
By
-------------------------------------------
Title
----------------------------------------
TOKHEIM SERVICES LLC
By
-------------------------------------------
Title
----------------------------------------
EXHIBIT 1--Page 2
TOKHEIM RPS, LLC
By
-------------------------------------------
Title
----------------------------------------
PAXCIS NETWORKS, INC.
By
-------------------------------------------
Title
----------------------------------------
EXHIBIT 1--Page 3
