FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of March 14, 2001 (this "Amendment")
is to the Post- Confirmation Credit Agreement (the "Credit Agreement")
dated as of October 20, 2000 among TOKHEIM CORPORATION, an Indiana
corporation (the "Company"), various subsidiaries thereof as Borrowers,
various financial institutions (the "Lenders"), AMSOUTH BANK, as
documentation agent, and ABN AMRO BANK N.V., as administrative agent for
the Lenders (the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as defined in the
Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement
in certain respects;
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 AMENDMENT. On (and subject to the occurrence of) the
Amendment Effective Date (as defined below), the Credit Agreement shall be
amended effective as of February 28, 2001 in the following manner:
1.1 Section 10.6.3 of the Credit Agreement shall be amended by
replacing the ratio "9.30:1.0" appearing opposite the date "February 28,
2001" with the ratio "10.40:1.0".
1.2 Section 10.6.4 of the Credit Agreement shall be amended by
replacing the ratio "10.45:1.0" appearing opposite the date "February 28,
2001" with the ratio "11.60:1.0".
1.3 Section 10.6.5 of the Credit Agreement shall be amended by
replacing the figure "$28,000,000" appearing opposite the date "February
28, 2001" with the figure "$25,500,000".
SECTION 2 WAIVER. Effective as of February 28, 2001 and subject to
the occurrence of the Amendment Effective Date, the Required Lenders hereby
waive any Event of Default created by the Borrowers' failure to timely
comply with Sections 10.1.1 and 10.1.3 of the Credit Agreement with respect
to the end of the Company's Fiscal Year ended November 30, 2000, provided
that the financial statements and compliance certificate required by such
Sections are delivered to the Administrative Agent (with sufficient copies
to provide one to each Lender) no later than March 23, 2001.
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Borrowers jointly
and severally represent and warrant to the Administrative Agent and the
Lenders that after giving effect to this Amendment (a) the representations
and warranties made in Section 9 of the Credit Agreement are true and
correct in all material respects on and as of the Amendment Effective Date
with the same effect as if made on and as of the Amendment 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 result from the
execution and delivery of this Amendment by the Borrowers; (c) the
execution and delivery by the Borrowers of this Amendment and the
performance by the Borrowers of their obligations under the Credit
Agreement as amended hereby (as so amended, the "Amended Credit Agreement")
(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 any governmental authority having
jurisdiction over any Borrower and (iv) do not and will not conflict with
any provision of any law or any administrative order or decree which is
binding on the Company or any of its Subsidiaries or of any provision of
the certificate of incorporation or bylaws or other organizational
documents of any Borrower or of any agreement which is binding on the
Company or any of its Subsidiaries; (d) the Amended Credit Agreement is the
legal, valid and binding obligation of each Borrower, enforceable against
such Borrower in accordance with its terms, subject to bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity (regardless of whether
considered in a proceeding at law or in equity); (e) as of February 28,
2001, the aggregate outstanding principal balance of the Tranche A Term
Loans is $36,508,368.48, the aggregate outstanding principal balance of the
Tranche B Term Loans is $100,668,187.24, the aggregate outstanding
principal balance of the Special Loans is $105,895,111,11 and the aggregate
Revolving Outstandings are $17,613,286.95; and (f) the obligation of the
Borrowers and the other Loan Parties to repay the Loans and the other
obligations under the Loan Documents is absolute and unconditional, and
there exists no right of setoff or recoupment, counterclaim or defense of
any nature whatsoever to payment of such obligations.
SECTION 4 EFFECTIVENESS. The amendments set forth in Section 1
above and the waiver set forth in Section 2 above shall become effective as
of the date hereof (the "Amendment Effective Date") when the Administrative
Agent shall have received (a) a counterpart of this Amendment executed by
the Borrowers and the Required Lenders, (b) a counterpart of the
Reaffirmation of Loan Documents, substantially in the form of Exhibit A,
executed by each Loan Party, (c) an amendment fee from the Company in an
amount equal to $50,000, for the account of the Lenders party hereto that
have executed and delivered counterparts of this Amendment to counsel for
the Administrative Agent by 5:00 p.m. (New York City time) on March 14,
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 which 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) and (d) such other
documents as the Administrative Agent or any Lender may reasonably request.
The Administrative Agent shall give notice to the Borrowers upon the
occurrence of the Amendment Effective Date.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all
references in the Credit Agreement, the Notes, each other Loan Document and
any similar document to the "Credit Agreement" or similar terms shall refer
to the Amended Credit Agreement.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Amendment.
5.3 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.
5.4 Governing Law. This Amendment 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.
5.5 Successors and Assigns. This Amendment shall be binding upon
the Borrowers, the Lenders and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of the
Borrowers, the Lenders and the Administrative Agent and the successors and
assigns of the Borrowers, the Lenders and the Administrative Agent;
provided that no Borrower shall have any right to assign this Amendment
without the prior written consent of the Administrative Agent and the
Required Lenders.
SECTION 6. 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 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. 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 OR EXPENSES, AND LIABILITIES
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, 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, WHICH 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 OTHER LOAN DOCUMENTS, AND NEGOTIATION
AND EXECUTION OF THIS AMENDMENT.
Delivered as of the day and year first above written.
TOKHEIM CORPORATION
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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, XXXXXXX & 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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XXXXX XXXXX SENIOR INCOME TRUST,
as a Lender
By: Xxxxx Xxxxx Management,
as Investment Advisor
By
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Title
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OXFORD STRATEGIC INCOME FUND,
as a Lender
By: Xxxxx Xxxxx Management,
as Investment Advisor
By
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Title
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XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND, as a Lender
By: Xxxxx Xxxxx 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 POLSKA KASA OPIEKI S.A.,
NEW YORK BRANCH, as a Lender
By
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Title
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OCTAGON INVESTMENT PARTNERS II,
LLC, as a Lender
By
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Title
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OAKTREE CAPITAL MANAGEMENT, LLC,
as 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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XXXXXXX XXXXX CREDIT PARTNERS,
as a Lender
By
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Title
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EXHIBIT A
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
March __, 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 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.
Capitalized terms not otherwise defined herein will have the
meanings given in the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Borrower, the Banks
and the Administrative Agent have executed the First Amendment (the
"Amendment") 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 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, (ii) acknowledges and agrees that its 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 thereto 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, OR EXPENSES,
AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
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 IS EXECUTED, WHICH IT 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 OTHER CREDIT DOCUMENTS, AND
NEGOTIATION AND EXECUTION OF THE FOREGOING AMENDMENT.
The letter agreement may be signed in counterparts and by the
various parties as herein on separate counterparts. 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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