Exhibit 4.19
AMENDMENT NO. 6 AND LIMITED WAIVER WITH RESPECT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 6 AND LIMITED WAIVER WITH RESPECT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment") is made as of July
26, 2000 by and among TOKHEIM CORPORATION, an Indiana corporation (the
"Company"), GASBOY INTERNATIONAL, INC., a Pennsylvania corporation
("Gasboy"), TOKHEIM-SOFITAM S.A., a societe anonyme organized under the
laws of France ("Tokheim- Sofitam"), TOKHEIM SOFITAM APPLICATIONS S.A., a
societe anonyme organized under the laws of France ("Sofitam
Applications"), TOKHEIM SERVICES FRANCE ("Tokheim France"), TOKHEIM UK
LIMITED ("Tokheim UK"), the financial institutions party hereto, ABN AMRO
BANK N.V., in its individual capacity as a Lender and as administrative
agent on behalf of the Lenders (the "Administrative Agent"), CREDIT
LYONNAIS, as Documentation and Collateral Agent, and BANKERS TRUST COMPANY,
as Co-Syndication Agent under that certain Second Amended and Restated
Credit Agreement dated as of December 14, 1998 by and among the Company,
Gasboy, Tokheim-Sofitam, Sofitam Applications, the financial institutions
party thereto (the "Lenders"), the Administrative Agent, the Documentation
and Collateral Agent, and the Co-Syndication Agent (collectively, the
"Agents"), as amended by an Amendment No. 1, an Amendment No. 2, an
Amendment No. 3, an Amendment No. 4 and an Amendment No. 5, dated as of
January 11, 1999, March 1, 1999, February 27, 1999, October 14, 1999 and
December 22, 1999, respectively (as amended and as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Company, Gasboy, Tokheim-Sofitam, Sofitam
Applications Tokheim France, Tokheim UK, the Lenders, the Administrative
Agent, the Documentation and Collateral Agent, and the Co-Syndication Agent
are parties to the Credit Agreement;
WHEREAS, the Company has notified the Administrative Agent and
the Lenders that the Company may be in violation of the financial covenants
set forth in Sections 6.12, 6.23, 6.24, 6.25 and 6.33 of the Credit
Agreement, in each case, for the fiscal quarter ending on May 31, 2000 and,
after the date hereof, a Default under Section 7.6 of the Credit Agreement
may occur as the result of the failure by the Company to make scheduled
interest payments due on August 1, 2000 on its US$123,000,000 11-3/8%
Senior Subordinated Notes due 2008 and its (U)75,000,000 11-3/8% Senior
Subordinated Notes due 2008;
WHEREAS, the Borrowers have requested that the Administrative
Agent and the Required Lenders waive the "Applicable Defaults" (as
described below) and the Required Lenders and the Administrative Agent are
willing to waive the Applicable Defaults on the terms and conditions set
forth herein, it being expressly understood that the waiver set forth
herein shall in no event constitute a waiver by the Lenders or the
Administrative Agent of any other breach of the Credit Agreement or any of
the Lenders' or Administrative Agent's rights or remedies with respect
thereto;
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, Tokheim-Sofitam, Sofitam Applications
and the Required Lenders have agreed as follows:
1. Amendments to Credit Agreement. Effective as of the date hereof
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 2.5.3(B)(ii)(z) of the Credit Agreement shall be
amended and restated to read in its entirety as follows:
(z) If on the last Business Day of any week:
(A) the Dollar Amount of the Revolving Credit Obligations
exceeds 100% of the Maximum Revolving Credit Amount, upon
demand of the Agent the Company for the ratable benefit
of the Lenders shall or shall cause the other Borrowers
to prepay Loans (to be applied to such Loans as the
Company shall direct at the time of such payment) on the
next succeeding Business Day in an aggregate amount such
that after giving effect thereto the Dollar Amount of the
Revolving Credit Obligations is less than or equal to the
Maximum Revolving Credit Amount; or
(B) the Dollar Amount of all outstanding Alternate Currency
Loans under the Alternate Currency Addenda exceeds 100%
of the aggregate Alternate Currency Commitments with
respect thereto, upon demand of the Agent the applicable
Borrowers shall on the next succeeding Business Day
prepay Alternate Currency Loans in an aggregate amount
such that after giving effect thereto the Dollar Amount
of all such Alternate Currency Loans is less than or
equal to the aggregate Alternate Currency Commitments
with respect thereto; or
(C) the Dollar Amount of the aggregate outstanding principal
amount of Alternate Currency Loans exceeds $80,000,000,
upon demand of the Agent the applicable Borrowers shall
on the next succeeding Business Day prepay Alternate
Currency Loans in an aggregate amount such that after
giving effect thereto the Dollar amount of all Alternate
Currency Loans is less than or equal to $80,000,000.
2. Waiver. Upon the effectiveness of this Amendment in accordance
with the provisions of Section 3 below, the Administrative Agent and the
Required Lenders hereby waive, for all purposes other than the purpose of
delivering one or more Blockage Notices as set forth in the immediately
succeeding sentence, (i) until the Waiver Expiration Date any violation of
the financial covenants set forth in Sections 6.12, 6.23, 6.24, 6.25 and
6.33 of the Credit Agreement, in each case, for the fiscal quarter ending
on May 31, 2000, (ii) any violation of Section 6.1(ix) of the Credit
Agreement to the extent the Company has not delivered cash forecasts or
updates on synergies required to be delivered for the calendar months
ending during the period commencing on November 30, 1999 through the date
hereof, (iii) compliance with any requirement pursuant to Section
2.5.3(B)(ii)(x) of the Credit Agreement that the Company make a prepayment
of the Additional Revolving Loans or the Obligations during the period from
May 31, 2000 to the Waiver Expiration Date, (iv) until the Waiver
Expiration Date any violation of Section 6.34 of the Credit Agreement with
respect to June 25, 2000 and July 25, 2000, (v) any violation prior to the
date hereof of Section 10(a) of the Security Agreement with respect to the
failure of the Company to provide 30 days' prior written notice of the
locations of certain Collateral listed on Schedule I hereto and (vi) until
the Waiver Expiration Date any Default under Section 7.6 of the Credit
Agreement arising from any failure by the Company to make scheduled
interest payments on August 1, 2000 on its US$123,000,000 11-3/8% Senior
Subordinated Notes due 2008 and its (U)75,000,000 11-3/8% Senior
Subordinated Notes due 2008 (collectively, the "Applicable Defaults"), and
(subject to the immediately succeeding sentence) the Lenders' and the
Administrative Agent's rights and remedies arising therefrom.
Notwithstanding the immediately preceding sentence, the Lenders and the
Administrative Agent do not waive any Applicable Default for the purpose
of, and may use any Applicable Default as grounds for, delivering a
Blockage Notice to any holder of Indebtedness that is subordinated to the
Obligations, or any trustee for or representative of any such holder, and
the Applicable Defaults are not waived and shall continue to exist for such
purpose. When used herein, (i) "Waiver Expiration Date" means August 16,
2000 and (ii) "Blockage Notice" means any notice to any holder of
Indebtedness, or any trustee for or representative of any such holder, that
such Indebtedness may not be paid under the terms governing such
Indebtedness due to the existence of a Default.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of July 26, 2000 upon the delivery of duly
executed originals of this Amendment to the Administrative Agent from the
Required Lenders, Gasboy, Tokheim-Sofitam, Sofitam Applications Tokheim
France, Tokheim UK and the Company.
4. Representations and Warranties of the Company. The Company,
Gasboy, Tokheim-Sofitam and Sofitam Applications (each a "Credit Party")
hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement constitute legal,
valid and binding obligations of such Credit Party and are
enforceable against such Credit Party in accordance with their terms.
The Obligations are absolute and unconditional, and there exists no
right of set off or recoupment, counterclaim or defense of any nature
whatsoever to repayment of the Obligations.
(b) Upon the effectiveness of this Amendment each Credit Party
hereby reaffirms all covenants, representations and warranties made
in the Credit Agreement, to the extent the same are not waived
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).
(c) No Default or Unmatured Default, other than the Applicable
Defaults, exists under the Credit Agreement or under any other
document, agreement or instrument executed and delivered by any
Credit Party in connection therewith or pursuant thereto.
5. Reference to and Effect on the Credit Agreement.
5.1. Except as specifically set forth herein, 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.
5.2. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agents or any of the Lenders, including the right to declare a
default based on the Applicable Defaults after the Waiver Expiration
Date, 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 except to the limited extent
specifically set forth herein.
6. Costs and Expenses. The Company agrees to pay all reasonable
costs, fees and out- of-pocket expenses (including reasonable attorneys'
fees and expenses charged to the Administrative Agent) incurred by the
Administrative Agent in connection with the preparation, execution and
enforcement of this Amendment.
7. 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.
8. 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.
9. 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.
10. Agreement. The Borrowers agree that if there exists any Revolving
Credit Availability after the date hereof as a result of fluctuations in
currency exchange rates, the Borrowers will not request Revolving Loans,
Additional Revolving Loans, Swing Loans or Letters of Credit to the extent
of such availability.
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:
TOKHEIM-SOFITAM S.A., as a Borrower
By:__________________________________
Name:
Title:
TOKHEIM SOFITAM APPLICATIONS S.A., as
a Borrower
By:__________________________________
Name:
Title:
TOKHEIM UK LIMITED
By:__________________________________
Name:
Title:
TOKHEIM SERVICES FRANCE
By:__________________________________
Name:
Title:
ABN AMRO BANK N.V., as Administrative
Agent and as a Lender
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
CREDIT LYONNAIS, CHICAGO BRANCH, as
Documentation and Collateral Agent
and as a Lender
By:__________________________________
Name:
Title:
BANKERS TRUST COMPANY, as
Co-Syndication Agent and as a Lender
By:__________________________________
Name:
Title:
BANK ONE, INDIANA, NATIONAL
ASSOCIATION, formerly known as
NBD BANK, N.A., as a Lender
By:__________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, as a Lender
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL, as a
Lender
By:__________________________________
Name:
Title:
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:
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:
EATON VANCE SENIOR INCOME TRUST, as
a Lender
By: Eaton Vance Management, as
Investment Advisor
By:__________________________________
Name:
Title:
OXFORD STRATEGIC INCOME FUND, as a
Lender
By: Eaton Vance Management, as
Investment Advisor
By:__________________________________
Name:
Title:
EATON VANCE INSTITUTIONAL SENIOR
LOAN FUND, as a Lender
By: Eaton Vance Management, as
Investment Advisor
By:__________________________________
Name:
Title:
OCTAGON LOAN TRUST, as a Lender
By: Octagon Credit Investors, as
Manager
By:__________________________________
Name:
Title:
OCTAGON INVESTMENT PARTNERS II, LLC,
as a Lender
By:__________________________________
Name:
Title:
DLJ CAPITAL FUNDING, INC., as a
Lender
By:__________________________________
Name:
Title:
OAKTREE CAPITAL MANAGEMENT, LLC, as a
Lender
By:__________________________________
Name:
Title:
AMSOUTH BANK, as a Lender
By:__________________________________
Name:
Title:
ARES LEVERAGED INVESTMENT FUND II,
L.P., as a Lender
By: ARES Management II, L.P., its
General Partner
By:__________________________________
Name:
Title:
HALCYON/ALAN B. SLIFKA MANAGEMENT
COMPANY, LLC, as a Lender on behalf
of the funds it manages/advises
By:__________________________________
Name:
Title:
EXHIBIT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 6 and Limited Waiver 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"), TOKHEIM-SOFITAM
S.A., a societe anonyme organized under the laws of France
("Tokheim-Sofitam"), TOKHEIM SOFITAM APPLICATIONS S.A., a societe anonyme
organized under the laws of France ("Sofitam Applications", and, together
with the Company, Gasboy and Tokheim-Sofitam, the "Borrowers") and the
financial institutions from time to time party thereto (the "Lenders"), as
amended by an Amendment No. 1, an Amendment No. 2, an Amendment No. 3, an
Amendment No. 4 and an Amendment No. 5, dated as of January 11, 1999, March
1, 1999, February 27, 1999, October 14, 1999 and December 22, 1999,
respectively (as amended and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), which Amendment No. 6 and Limited Waiver is dated as of July
26, 2000 (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 any Agent
or any Lender, each of the undersigned reaffirms the terms and conditions
of the Guaranty, Pledge Agreement, Security Agreement 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 is 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 Amendment No. 1, Amendment No. 2,
Amendment No. 3, Amendment No. 4, Amendment No. 5 and the Amendment and as
the same may from time to time hereafter be amended, modified or restated.
Dated as of July 26, 2000 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.
TOKHEIM-SOFITAM S.A.
TOKHEIM SOFITAM APPLICATIONS S.A.
By:__________________________________
Name:
Title:
Schedule I
Company Locations of Collateral
510 Independence Parkway
Suite 100
Chesapeake, Virginia
(Independent City)
2935 West 47th Street
Chicago, Illinois 60632
