-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QfUYF8sqHRWImtglZ0QCWU4jjWZ6BbvySI9nI2LPo0DAIfVAzcmZ0XFTp8LIpQIQ FHQ9RDNgDsiKtjtnbVTHLA== /in/edgar/work/0000950172-00-001785/0000950172-00-001785.txt : 20001030 0000950172-00-001785.hdr.sgml : 20001030 ACCESSION NUMBER: 0000950172-00-001785 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 20000831 FILED AS OF DATE: 20001027 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOKHEIM CORP CENTRAL INDEX KEY: 0000098559 STANDARD INDUSTRIAL CLASSIFICATION: [3580 ] IRS NUMBER: 350712500 STATE OF INCORPORATION: IN FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-06018 FILM NUMBER: 747714 BUSINESS ADDRESS: STREET 1: 10501 CORPORATE DRIVE CITY: FORT WAYNE STATE: IN ZIP: 46845 BUSINESS PHONE: 2194704600 MAIL ADDRESS: STREET 1: 10501 CORPORATE DRIVE CITY: FORT WAYNE STATE: IN ZIP: 46845 10-Q 1 0001.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Form 10-Q (Mark One) (X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended August 31, 2000 Commission File Number 1-6018 TOKHEIM CORPORATION (Exact name of Registrant as specified in its charter) INDIANA 35-0712500 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 10501 CORPORATE DRIVE, FORT WAYNE, IN 46845 (Address of principal executive offices) (Zip Code) (Registrant's telephone number including area (219) 470-4600 code): NOT APPLICABLE (Former name, former address, and former fiscal year if changed since last report) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes (X) No As of August 31, 2000, 12,687,378 shares of voting common stock were outstanding. The exhibit index is located on page 18 ITEM 1. FINANCIAL STATEMENTS
TOKHEIM CORPORATION AND SUBSIDIARIES - ------------------------------------------------------------------------------------------------------------------------- (Unaudited) (Debtors-in-Possession) ------------------------------------------------------------- Consolidated Condensed Statement of Earnings Three Months Ended Nine Months Ended (Amounts in thousands except amounts per share) August 31, August 31, 2000 1999 2000 1999 ------------ ----------- ----------- ------------ Net sales.............................................. $ 122,668 $ 169,170 $ 389,917 $ 512,374 Cost of sales, exclusive of items listed below......... 95,933 128,927 306,147 393,999 Selling, general, and administrative expenses.......... 19,829 25,023 70,005 78,729 Description and amortization........................... 5,867 6,319 18,451 19,279 Merger and acquisitions costs and other unusual items.. 13,146 1,292 18,594 6,115 ------------ ----------- ----------- ------------ Operating profit (loss)............................. (12,107) 7,609 (23,280) 14,252 ------------ ----------- ----------- ------------ Interest expense, net.................................. 15,103 13,279 44,625 37,944 Foreign currency (gain) loss........................... 650 (483) 453 2,372 Minority interest in subsidiaries...................... 12 (2) 61 88 Other (income) expense, net............................ 553 261 (455) (1,048) ------------ ----------- ----------- ------------ Loss before reorganization costs, income taxes and extraordinary loss..................................... (28,425) (5,446) (67,964) (25,104) Reorganization costs................................... 1,450 - 1,450 - ------------ ----------- ----------- ------------ Loss before income taxes and extraordinary loss........ (29,875) (5,446) (69,414) (25,104) Income tax expense (benefit)........................... 321 2 (1,362) (480) ------------ ----------- ----------- ------------ Loss before extraordinary loss......................... (30,196) (5,448) (68,052) (24,624) Extraordinary loss on debt extinguishment.............. - - - (6,249) ------------ ----------- ----------- ------------ Net loss............................................... (30,196) (5,448) (68,052) (30,873) Preferred stock dividends.............................. (382) (376) (1,150) (1,124) ------------ ----------- ----------- ------------ Loss applicable to common stock........................ $ (30,578) $ (5,824) $ (69,202) $ (31,997) ============ =========== =========== ============ Loss per common share: Basic Before extraordinary loss........................ $ (2.41) $ (0.46) $ (5.46) $ (2.03) Extraordinary loss on debt extinguishment........ - - - (0.49) ------------ ----------- ----------- ------------ Net Loss......................................... $ (2.41) $ (0.46) $ (5.46) $ (2.52) ============ =========== =========== ============ Weighted average shares outstanding.............. 12,669 12,670 12,669 12,667 ============ =========== =========== ============ Diluted Before extraordinary loss........................ $ (2.41) $ (0.46) $ (5.46) $ (2.03) Extraordinary loss on debt extinguishment........ - - - (0.49) ------------ ----------- ----------- ------------ Net Loss......................................... $ (2.41) $ (0.46) $ (5.46) $ (2.52) ------------ ----------- ----------- ------------ Weighted average shares outstanding.............. 12,669 12,670 12,669 12,667 ============ =========== =========== ============
TOKHEIM CORPORATION AND SUBSIDIARIES - ---------------------------------------------------------------------------------------------------- (Debtors-in-Possession) Unaudited Audited Consolidated Condensed Balance Sheet -------------- -------------- (Amounts in thousands) August 31, November 30, 2000 1999 ------------- -------------- ASSETS Current assets: Cash and cash equivalents.................................... $ 14,989 $ 14,437 Accounts receivable, net..................................... 104,282 168,565 Inventories: Raw materials, service parts, and supplies................ 61,306 68,122 Work in process........................................... 12,482 16,389 Finished goods............................................ 5,377 9,017 ------------- ------------- 79,165 93,528 Other current assets......................................... 13,453 12,598 ------------- ------------- Total current assets......................................... 211,889 289,128 Property, plant, and equipment, net.......................... 64,741 71,976 Other tangible assets........................................ 1,643 2,328 Intangible assets, net....................................... 279,345 308,552 Other non-current agents, net................................ 16,971 18,818 ------------- ------------- Total assets................................................. $ 574,589 $ 690,802 ============= ============= LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT) Liabilities subject to compromise: Senior subordinated notes................................. $ 189,607 -- Junior subordinated payment in kind notes................. 49,195 -- Accrued interest.......................................... 12,633 -- Other accrued liabilities................................. 13,713 -- ------------- ------------- Total liabilities subject to compromise...................... 265,148 -- Liabilities not subject to compromise: Notes payable, bank credit agreement...................... -- $ 7,500 Current maturities of long-term debt...................... 2,135 3,231 DIP financing............................................. 5,000 -- Cash overdrafts........................................... 14,829 12,321 Accounts payable.......................................... 59,456 84,511 Accrued expense........................................... 68,758 111,507 ------------- ------------- Total current liabilities.................................... 413,326 219,070 Notes payable, bank credit agreement......................... 223,858 204,284 Senior subordinated notice................................... -- 198,681 Junior subordinated payment in kind notice................... -- 45,020 Other long-term debt, less current maturities................ 2,641 3,168 Guaranteed Employees' Stock Ownership Plan obligation........ 2,956 4,351 Post-retirement benefit liability............................ 18,519 18,693 Other long-term liabilities.................................. 1,003 4,926 ------------- ------------- 662,303 698,193 ------------- ------------- Redeemable convertible preferred stock....................... 24,000 24,000 Guaranteed Employee's Stock Ownership Plan obligation........ (2,956) (4,351) Treasury stock, at cost...................................... (4,307) (4,210) ------------- ------------- 16,737 15,439 ============= ============= Common stock................................................. 90,375 90,375 Common stock warrants........................................ 26,187 20,000 Accumulated comprehensive loss............................... (87,684) (69,077) Accumulated deficit.......................................... (132,798) (63,597) (103,920) (22,299) Less treasury stock, at cost................................. (531) (531) (104,451) (22,830) ------------- ------------- Total liabilities and shareholders equity (deficit).......... $ 574,589 $ 690,802 ============= =============
TOKHEIM CORPORATION AND SUBSIDIARIES - ----------------------------------------------------------------------------------------------------------- (Debtors-in-Possession) Unaudited Consolidated Condensed ------------------------------- Statements of Cash Flows Nine Months Ended (In thousands) August 31, November 30, 2000 1999 ------------- ------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net loss................................................................ $ (68,052) $ (30,873) Adjustments to reconcile net loss to cash used in operating activities: Payment in kind interest............................................. 4,175 3,709 Extraordinary loss on debt extinguishment............................ -- 6,249 Depreciation and amortization........................................ 18,451 19,279 Loss (Gain) on sale of property, plant, and equipment................ 29 (1,240) Changes in assets and liabilities: Accounts receivable, net............................................. 51,839 11,686 Inventories.......................................................... 7,937 11,924 Other current assets................................................. (2,047) -- Accounts payable..................................................... (18,996) (17,334) Accrued expenses..................................................... (14,296) (14,394) Other non-current assets............................................. 3,530 (684) Other (386) (6,989) Net cash used in operating activities................................... (17,816) (18,667) CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from sale of property, plant, and equipment.................... 1,098 3,842 Property, plant, and equipment additions................................ (7,486) (15,695) ------------- ------------- Net cash used in investing activities................................... (6,388) (11,853) ------------- ------------- CASH FLOWS FROM FINANCING ACTIVITIES: Redemption of senior notes.............................................. -- (22,500) Proceeds from 11.375% senior subordinated notes......................... -- 209,647 Redemption of senior subordinated notes................................. -- (170,000) Increase in other debt.................................................. 191 (280) Increase in notes payable, banks........................................ 15,956 21,000 Borrowings under DIP financing.......................................... 5,000 - Increase in cash overdraft.............................................. 3,866 5,830 Deferred debt issuance costs............................................ (2,324) (9,992) Proceeds from issuance of common stock.................................. -- 22 Premiums paid on debt extinguishment.................................... -- (555) Preferred stock dividends (1,150) (1,124) Other (97) 890 ------------- ------------- Net cash provided from financing activities............................. 21,442 32,938 ------------- ------------- EFFECT OF TRANSLATION ADJUSTMENTS ON CASH............................... 3,314 (8,234) Increase (decrease) in cash............................................. 552 (5,816) CASH AND CASH EQUIVALENTS: Beginning of year....................................................... 14,437 26,801 ------------- ------------- End of period $ 14,989 $ 20,985 ============= =============
Notes to the Consolidated Condensed Financial Statements 1. BASIS OF PRESENTATION The consolidated condensed financial statements are unaudited for the periods indicated herein. In accordance with the rules and regulations of the Securities and Exchange Commission, certain information and footnote disclosures have been condensed or omitted; therefore, such financial statements should be read in conjunction with the consolidated financial statements in the Company's Annual Report on Form 10-K for the year ended November 30, 1999. The consolidated condensed financial statements in this Report reflect all adjustments and accruals that, in the opinion of management, are necessary for a fair presentation of the results for the interim periods presented; all such adjustments were of a normal recurring nature. The results of operations for the nine-month interim period ended August 31, 2000 are not necessarily indicative of the results of operations for the year ending November 30, 2000. Tokheim Corporation (the "Company") filed a Joint Prepackaged Plan of Reorganization (the "Plan") for the Company and its U.S. subsidiaries pursuant to Chapter 11 of the U.S. Bankruptcy Code with the U.S. Bankruptcy Court for the District of Delaware on August 28, 2000. The Bankruptcy Court confirmed the Company's Plan on October 4, 2000 and the Plan became effective as of October 20, 2000 (the "Effective Date"). (See Note 2 for additional information). The unaudited consolidated condensed financial statements have been presented in accordance with the American Institute of Certified Public Accountants Statement of Position ("SOP") No. 90-7, Financial Reporting by Entities in Reorganization under the Bankruptcy Code, which provides guidance for financial reporting by entities that have filed voluntary petitions for relief under, and have reorganized in accordance with, the Bankruptcy Code. SOP No. 90-7 requires a segregation of liabilities subject to compromise by the Bankruptcy Court as of the bankruptcy filing date (August 28, 2000) and identification of transactions and events that are directly associated with the reorganization of the Company. As further discussed in Note 2, the Company operated its business as a debtor-in-possession under Chapter 11 and was subject to the jurisdiction and supervision of the Bankruptcy Court during the period from August 28, 2000 to October 20, 2000. Under Chapter 11, certain claims against the Company in existence prior to the filing of the petition for relief under the bankruptcy laws were stayed while the Company continued business operations as a debtor-in-possession. These claims are reflected in the August 31, 2000 balance sheet as "liabilities subject to compromise" as more fully described in Note 2. The financial statements have been prepared using accounting principles applicable to a going concern, which contemplates the realization of assets and the payment of liabilities in the ordinary course of business. In accordance with SOP No. 90-7 the Company will adopt "fresh start accounting" as of October 20, 2000 and the Company's emergence from its Chapter 11 proceedings will result in a new reporting entity. The financial statements prepared as of August 31, 2000 do not give effect to all adjustments to the carrying value of assets or amounts and classifications of liabilities that will be necessary when adopting fresh start accounting. Under fresh start accounting, all assets and liabilities will be recorded at their estimated fair values and the Company's accumulated deficit will be eliminated. It is likely that substantial adjustments will be made to record assets and liabilities at their fair values as of October 20, 2000. See Note 2 for a balance sheet prepared as of August 31, 2000 on a pro forma basis to reflect the discharge of the Company's senior and junior subordinated notes and certain estimated fresh start adjustments. 2. PLAN OF REORGANIZATION On August 28, 2000, the Company filed a Joint Prepackaged Plan of Reorganization (the "Plan") for the Company and its U.S. subsidiaries pursuant to Chapter 11 of the U.S. Bankruptcy Code with the U.S. Bankruptcy Court for the District of Delaware. The Bankruptcy Court confirmed the Company's Plan on October 4, 2000. The Company emerged from bankruptcy as of October 20, 2000, the effective date of the Plan. The Plan provided that, among other things, (i) the existing bank credit agreement was restructured to comprise a four year, eleven month senior term facility of $140 million and a four year, eleven month trust debt facility of $100 million on which trust debt interest will be accrued but not paid until at least December 31, 2002; (ii) the Company's bank group provided, in addition to the $240 million facilities detailed above, a debtor-in-possession financing (the "DIP Financing") facility with available borrowings of $48 million which was converted into a revolving credit facility upon the Company's emergence from the reorganization; (iii) members of the bank group received warrants with a five year term to purchase 678,334 shares of new common stock at an exercise price of $0.01 per share; (iv) in exchange for their Notes and other claims, the holders of $260 million of senior and junior subordinated notes and certain other unsecured creditors received 4,500,000 shares of new common stock representing 90% of the equity value of the restructured Company, subject to dilution for warrants to existing shareholders and management options; (v) holders of junior subordinated notes will receive 5 year warrants to purchase 555,556 shares of the new common stock at $30.00 per share; (vi) the Company's employees' rights to receive cash redemption of preferred stock held by the Retirement Savings Plan were preserved; and (vii) the Company's approximately 12,669,000 shares of outstanding common stock were cancelled and existing holders of common stock received "out of the money" warrants with a six year term giving them the right to acquire an aggregate of 549,451 shares of the new common stock of the reorganized Company at an exercise price of $49.50 per share. Liabilities Subject to Compromise As a result of the Chapter 11 proceedings, certain prepetition liabilities were reclassified to liabilities subject to compromise at August 31, 2000. These claims will be settled in accordance with the Plan. The liabilities subject to compromise are reflected on the consolidated condensed balance sheet as of August 31, 2000 as follows: (In thousands) Senior subordinated notes $189,607 Junior subordinated payment in kind notes 49,195 Accrued interest 12,633 Other accrued liabilities 13,713 ---------- Total liabilities subject to compromise $265,148 As a result of the Chapter 11 proceedings and the related Plan, an extraordinary gain on the forgiveness of debt approximating $265.1 million is expected to be recognized in the consolidated statement of operations in October 2000, prior to the adoption of fresh start accounting. Reorganization costs incurred in the period subsequent to Chapter 11 proceedings on August 28, 2000, but before the end of the third quarter at August 31, 2000 totaled $1.5 million. These costs related to fees to secure the DIP Financing. Prior to the Chapter 11 proceedings on August 28, 2000, the Company incurred certain costs related to the Plan, approximating $4.7 million, that are classified as merger and acquisition costs and other unusual items on the Consolidated Condensed Statement of Earnings. These costs consisted primarily of professional fees. The components of merger and acquisition costs and other unusual items for the three and nine month periods ended August 31, 2000 and 1999 are as follows:
Three months ended Nine months ended August 31, August 31, 2000 1999 2000 1999 ------------------------- ----------------------- Pre-petition reorganization costs $ 4,450 $ -- $ 4,724 $ -- Settlement with former shareholders of MSI 7,000 -- 7,000 -- Employee compensation and expenses related to the RPS Integration plan 386 649 1,496 3,805 Lease cancellation and other facility expenses 60 75 175 269 Increased warranty and other product related costs 329 1 762 320 Other 921 567 4,437 1,721 ---------- ---------- --------- -------- Total $ 13,146 $ 1,292 $ 18,594 $ 6,115 ========== ========== ========= ========
Tokheim Corporation and Subsidiaries Unaudited Pro Forma Consolidated Condensed Balance Sheet August 31, 2000 Reorganization Adjustments Pro forma reorganized Debt balance sheet August 31, Discharge Fresh August 31, 2000 & Refinance Start 2000 ------------------------------------------------------------------ ASSETS Current assets: Cash and cash equivalents $ 14,989 $ -- $ -- $ 14,989 Accounts receivable, net 104,282 -- -- 104,282 Inventories, net 79,165 -- -- 79,165 Other current assets 13,453 -- -- 13,453 ----------- --------------- ------------- ----------- Total current assets 211,889 -- -- 211,889 Property, plant and equipment, net 64,741 -- -- 64,741 Other tangible assets 1,643 -- -- 1,643 Intangible assets, net 279,345 -- (2) (279,345) -- Other non-current assets, net 16,971 -- -- 16,971 Reorganization value in excess of amounts allocable to identifiable assets -- -- (2) 161,176 161,176 ----------- --------------- ------------- ----------- Total assets $ 574,589 $ -- $ (118,169) $ 456,420 =========== =============== ============= =========== LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT) Liabilities subject to compromise: Senior subordinated notes $ 189,607 $ (1) (189,607) $ -- $ -- Junior subordinated payment in kind notes 49,195 (1) (49,195) -- -- Accrued interest 12,633 (1) (12,633) -- -- Other accrued liabilities 13,713 (1) (13,713) -- -- ----------- --------------- ------------- ----------- Total liabilities subject to compromise 265,148 (265,148) -- -- Liabilities not subject to compromise: Current maturities of other long term debt 2,135 -- -- 2,135 DIP financing 5,000 (1) (5,000) -- -- Cash overdrafts 14,829 -- -- 14,829 Accounts payable 59,456 -- -- 59,456 Accrued expenses 66,758 -- -- 66,758 ----------- --------------- ------------- ----------- Total current liabilities 413,326 (270,148) -- 143,178 Notes payable, bank credit agreement 223,858 (1) (223,858) -- -- Other long term debt, less current maturities 2,641 -- -- 2,641 Guaranteed employees' stock ownership plan obligation 2,956 -- -- 2,956 Post-retirement benefit liability 18,519 -- -- 18,519 Other long-term liabilities 1,003 -- -- 1,003 Term loans and revolving loans -- (1) 145,000 -- 145,000 Special loans -- (1) 100,000 -- 100,000 Debt discount for bank warrants and Series A Senior Preferred Stock -- (1) (6,877) -- (6,877) ----------- --------------- ------------- ----------- Total liabilities 662,303 (255,883) -- 406,420 Redeemable convertible preferred stock 24,000 -- (2) (13,875) 10,125 Guaranteed employees' stock ownership plan obligation (2,956) -- -- (2,956) Treasury stock, at cost (4,307) -- (2) 4,307 -- Series A Senior Preferred Stock -- -- (2) 100 100 ----------- --------------- ------------- ----------- Total preferred equity 16,737 -- (9,468) 7,269 Common stock 90,375 -- (1) (90,375) -- Common stock warrants 26,187 -- (1) (26,187) -- Accumulated comprehensive loss (87,684) -- (3) 87,684 -- Accumulated deficit (132,798) -- (3) 132,798 -- New common stock -- -- (1) 4,500 4,500 New warrants issued to bank group -- -- (1) 6,777 6,777 New warrants issued for old cancelled shares -- -- (1) 1,422 1,422 Additional paid in capital -- -- (1) 30,032 30,032 ----------- --------------- ------------- ----------- (87,183) -- 137,183 50,000 Less treasury stock, at cost (531) -- (1) 531 -- ----------- --------------- ------------- ----------- Total shareholders' equity (87,714) -- 137,714 50,000 ----------- --------------- ------------- ----------- Total liabilities and shareholders' equity (deficit) $ 574,589 $ (255,883) $ 137,714 $ 456,420 =========== =============== ============= ===========
The unaudited pro forma consolidated condensed balance sheet prepared as of August 31, 2000 included above illustrates the effect of the Company's plan of reorganization and the effect of implementing certain fresh start accounting adjustments as if the Plan had been effective on August 31, 2000. The adjustments are limited to presenting (a) the Company's reorganized capital structure, including its new credit agreement, (b) the effect of discharging the senior and junior subordinated notes, (c) the elimination of existing goodwill and debt issuance costs associated with debt that has been discharged or refinanced, (d) the elimination of the accumulated deficit and comprehensive loss, and (e) the estimated liability for the discounted present value of the future redemption of preferred stock under the Company's existing guaranteed ESOP. The pro forma consolidated condensed balance sheet prepared as of August 31, 2000 does not give effect to all adjustments necessary to state assets and liabilities at their estimated fair value. The Company will record these adjustments and allocate the estimated reorganization value to identifiable tangible and intangible assets based on their estimated fair value when fresh start accounting is adopted on the effective date of the Plan and the valuation process is completed. The reorganization value used in preparing the unaudited consolidated condensed pro forma balance sheet was assumed to be $50 million for purposes of fresh start accounting. A description of the reorganization is as follows: 1. To record the discharge of the senior and junior subordinated notes and borrowings under the existing credit agreement, the cancellation of old common stock, warrants and treasury stock, and the issuance of new common stock, Series A Senior Preferred Stock and warrants pursuant to the Plan; 2. To record certain adjustments to state assets and liabilities at their estimated fair value, including the establishment of reorganization value in excess of amounts allocable to identifiable assets using the reorganization value discussed above. As stated above, these adjustments are limited to recording the elimination of existing goodwill and debt issuance costs associated with debt that has been discharged or refinanced, and the estimated liability for the discounted present value of the future redemption of preferred stock under the Company's existing guaranteed ESOP; 3. To eliminate the accumulated deficit and accumulated comprehensive loss (which consists of foreign currency translation losses). 3. DEBTOR-IN-POSSESSION FINANCING AND POST-CONFIRMATION CREDIT AGREEMENT In connection with the Chapter 11 proceedings discussed above, the Company entered into a $48 million debtor-in-possession financing agreement (the "DIP Financing") with its existing bank group led by AMSOUTH BANK and ABN AMRO BANK N.V. (collectively, the "DIP Lenders"). The Bankruptcy Court granted final approval of the DIP Financing on August 29, 2000. The DIP Financing provided for revolving credit based on eligible accounts receivable, inventory, and property, plant and equipment. The DIP Financing was used to fund working capital requirements and guarantee letter of credit obligations during the Chapter 11 proceedings, and to provide funds for general corporate purposes in the ordinary course of business. Interest is payable under the DIP Financing at the Company's option at the higher of the lenders' reference rate or the federal funds effective rate plus 0.5%, plus 2.50% per annum or the Eurodollar Rate plus 4.00% per annum. At August 31, 2000, the outstanding balance under the DIP Financing was $5 million. As a result of the confirmation of the Company's Plan by the Bankruptcy Court, the DIP Financing was replaced by a Post Confirmation Credit Agreement (the "New Credit Agreement") as of October 20, 2000. The New Credit Agreement, which was entered into by Tokheim Corporation and certain of its subsidiaries (the "Borrowers" or the "Company"), consists of a $140 million term facility (the "term loans") which is divided into a Tranche A term loan, a Tranche B term loan, and a $100 million trust facility referred to as the "special loans" in the New Credit Agreement. The New Credit Agreement also includes a $48 million revolving credit facility (the "revolving loans" - which includes letters of credit) that was converted from the DIP Financing discussed above. Borrowings under the revolving loans are subject to certain borrowing base limitations related to eligible accounts receivable, inventory, and property, plant and equipment. The term loans and revolving loans mature on September 20, 2005 and the special loans are due in four $25 million installments on November 30, 2002-2004 and September 20, 2005. Indebtedness under the term loans and revolving loans bears interest based upon (at the Company's option) (i) the Base Rate (defined as the higher of the federal funds rate (as adjusted pursuant to the New Credit Agreement) plus 0.50% and the applicable prime rate) plus an applicable margin of 3.50% for the term loans and 2.50% for the revolving credit loans, or (ii) the Eurodollar Rate (as defined in the New Credit Agreement) plus an applicable margin of 5.00% for the term loans and 4.00% for the revolving credit loans. Interest on the special loans is payable at an annual rate of 16.00%. Accrued interest on Base Rate loans is payable in arrears on the last day of each calendar month and at maturity. Accrued interest on each Eurodollar Rate loan is payable on the last day of each interest period or at the end of each three-month period with respect to each six-month Interest Period. Accrued interest on the special loans is capitalized and added to the unpaid principal on the interest payment date until maturity. In consideration for the New Credit Agreement, the Company incurred certain fees in October 2000 approximating $1.5 million to the bank group along with warrants with a five year term to purchase 678,334 shares of the Company's common stock at an exercise price of $0.01 per share. The Company also issued to the bank group shares of preferred stock with a liquidation preference of $0.10 million with quarterly dividends at an annual rate of 16.00% (the "New Preferred Stock"). The holders of the New Preferred Stock are entitled to elect two directors to the Company's board of directors, voting as a separate class. In the event the Company has a payment default, as defined under the New Credit Agreement, the holders of the New Preferred Stock, voting as a separate class, will be entitled to elect a majority of the directors on the Company's board of directors. The New Credit Agreement provides for commercial and standby letters of credit not to exceed $5 million at any time in the aggregate with a sublimit of $3 million at any time with respect to standby letters of credit. Interest is due on amounts drawn under letters of credit that are not reimbursed at the Base Rate plus 2.50% per annum plus an additional 2.00% beginning on the third business day after receipt of notice from the lender that a payment was made on behalf of the Company. A nonrefundable fee is due monthly for each outstanding letter of credit equal to 4.00% per annum of the undrawn amount or 7.00% per annum if an event of default under the New Credit Agreement exists upon notice of a majority of the revolving lenders. The Borrowers may prepay the term loans and special loans in whole or in part provided that the Company does not make any prepayment of the term loans if any special loans remain outstanding. The Company may permanently reduce the revolving loan commitment if no term loans or special loans are outstanding. The Company is required to make mandatory prepayments of the term loans, special loans, and revolving loans for excess cash flow (as defined in the New Credit Agreement, annually commencing with fiscal year 2002 (for fiscal year 2001 and 2002 on a cumulative basis)) and in the case of the receipt of net cash proceeds from asset sales, tax refunds, insurance recoveries, or the issuance of debt or equity securities, subject to certain exceptions. Premiums are charged on voluntary or mandatory prepayments of the special loans at a range of .50% to 2.00% of the outstanding principal balance depending on the date of the prepayment. The New Credit Agreement requires the Company to maintain specified financial levels and ratios and to meet certain financial tests, including a minimum level of EBITDA (as defined in the New Credit Agreement), a fixed charge coverage ratio, an interest coverage ratio, a senior debt to EBITDA ratio, and a total debt to EBITDA ratio. The New Credit Agreement also contains covenants which, among other things, limit the amount of capital expenditures, the incurrence of additional indebtedness, the payment of dividends, transactions with affiliates, asset sales, acquisitions, investments, mergers and consolidations, prepayments of certain other indebtedness, liens and encumbrances and other matters customarily restricted in such agreements. At May 31, 2000 and August 31, 2000, the Company was in violation of several of its financial covenants under its bank credit agreement, including covenants relating to the senior leverage ratio, total leverage ratio, interest expense coverage ratio, fixed charge coverage ratio, minimum EBITDA, and the clean down or availability covenant on the working capital facility. No waiver for these instances of non-compliance is necessary because the Company has refinanced its bank credit agreement with the New Credit Agreement subsequent to August 31, 2000, as described above. The Company's ability to maintain specified financial levels and meet financial ratios and tests in the future may be affected by events beyond its control. While the Company currently expects to be in compliance with the covenants and satisfy the financial ratios and tests in the future, there can be no assurance that the Company will meet such financial ratios and tests or that it will be able to obtain future amendments to the New Credit Agreement, if so needed, to avoid a default. In the event of default, the lenders could elect to declare all amounts borrowed under the New Credit Agreement to be due and payable. Indebtedness of the Company under the New Credit Agreement (a) is collateralized by (i) a first perfected security interest in and lien on substantially all of the real and personal property assets of the Company (including claims against certain subsidiaries to which the Company has made intercompany loans) and the Company's direct and indirect majority-owned U.S. subsidiaries, (ii) a pledge of 100% of the stock of the Company's direct and indirect majority-owned U.S. subsidiaries, and (iii) a pledge of 65% of the stock of the Company's first-tier foreign subsidiaries and (b) is guaranteed by all of the Company's direct and indirect majority-owned U.S. subsidiaries. 4. NEW ACCOUNTING PRONOUNCEMENTS Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Hedging Activities" was issued in June 1998 and is effective for the year ending November 30, 2001. SFAS No. 133 establishes a new model for accounting for derivatives in the balance sheet as either assets or liabilities and measures them at fair value. Certain disclosures concerning the designation and assessment of hedging relationships are also required. Additionally, the Securities and Exchange Commission has issued Staff Accounting Bulletin (SAB) No. 101, "Revenue Recognition", that deals with principles of revenue recognition. Management has not yet determined the impact of SFAS No. 133 or SAB No. 101 on the Company's consolidated financial statements. 5. SEGMENT REPORTING For the three and nine month periods ended August 31, 2000 and 1999, respectively, the Company had only one reportable industry segment-the design, manufacture and servicing of petroleum dispensing systems. The Company has three reportable operating segments: North America; Europe; and Africa. The accounting policies of these segments are the same as described in the summary of significant accounting policies in the Company's Form 10-K for the year ended November 30, 1999. The Company evaluates the performance of each operating segment based upon income from operations before merger and acquisition costs and other unusual items. The Company's selling, general, and administrative expenses are charged to each segment based upon the operating segment where the costs are incurred. Segment results for the three and nine month periods ended August 31, 2000 and 1999 are summarized in the tables below.
Three months ended August 31: 2000 North America* Europe Africa Eliminations Consolidated Customer sales......................................... $ 47,252 $ 71,381 $ 4,035 $ 0 $ 122,668 Intercompany sales 1,428 1,012 0 (2,440) 0 Depreciation and amortization 3,055 2,753 59 0 5,867 Operating profit (loss), before merger & acquisition costs and other unusual items...................................... (1,368) 2,661 (202) (52) 1,039 Total assets........................................... $ 591,718 315,805 11,644 (344,578) 574,589 1999 Customer sales......................................... $ 61,213 $ 102,605 5,352 0 169,170 Intercompany sales..................................... 800 1,366 (1) (2,165) 0 Depreciation and amortization.......................... 2,622 3,617 80 0 6,319 Operating profit, before merger & acquisition costs and other unusual items...................... (1,293) 10,373 9 (188) 8,901 Total assets........................................... $ 625,418 $ 435,311 $ 14,924 $ (370,633) $ 705,020 Nine months ended August 31: 2000 North America* Europe Africa Eliminations Consolidated Customer sales......................................... $ 148,057 $ 229,364 $ 12,496 $ 0 $ 389,917 Intercompany sales 3,576 2,730 0 (6,306) 0 Depreciation and amortization.......................... 8,611 9,624 216 0 18,451 Operating profit (loss), before merger & acquisition costs and other unusual items............ (12,035) 7,734 (235) (150) (4,686) Total assets........................................... $ 591,718 $ 315,805 $ 11,644 $ (344,578) $ 574,589 1999 Customer sales......................................... $ 186,440 $ 310,453 $ 15,481 $ 0 $ 512,374 Intercompany sales..................................... 2,470 3,418 119 (6,007) 0 Depreciation and amortization.......................... 7,256 11,787 236 0 19,279 Operating profit, before merger & acquisition costs and other unusual items........................ 1,061 19,283 196 (173) 20,367 Total assets........................................... $ 625,418 $ 435,311 $ 14,924 $ (370,633) $ 705,020 * Include corporate expenses.
Reconciliation from segment reporting to consolidated condensed statement of earnings:
Three months ended Nine months ended August 31 August 31 2000 1999 2000 1999 ------------ -------------- ----------- ----------- Segment operating profit (loss) $ 1,039 $ 8,901 $ (4,686) $ 20,367 Merger and acquisition costs and other unusual items.............................. (13,146) (1,292) (18,594) $ (6,115) ------------ -------------- ----------- ----------- Operating profit (loss).................... $ (12,107) $ 7,609 $ (23,280) $ 14,252 ------------ -------------- ----------- -----------
6. COMPREHENSIVE LOSS The table below summarizes comprehensive loss for the three and nine month periods ended August 31, 2000 and 1999.
Three months Nine months ended ended August 31 August 31 2000 1999 2000 1999 ------------ -------------- ----------- ----------- Net loss...................................... $ (30,196) $ (5,448) $ (68,052) $ (30,873) Other comprehensive loss: Foreign currency translation adjustments...... $ (7,675) (975) (18,607) (36,164) ------------ ------------- ----------- ----------- Comprehensive loss............................ $ (37,871) $ (6,423) $ (86,659) $ (67,037) ============ ============= =========== ===========
7. RESTRUCTURING CHARGES Included in accrued liabilities are certain costs the Company will incur to effect an integration and rationalization plan for the RPS Division's operations. These costs represent involuntary termination and other closure costs in connection with closing redundant manufacturing and service operations. These accrued costs do not include costs associated with consolidation of previously existing Tokheim subsidiaries, which will be expensed as incurred or separately accrued once all criteria for accrual are met, nor do these costs benefit future periods. The Company expects the integration and rationalization plan to be substantially completed by the end of fiscal year 2000. The table below summarizes the accrued liability activity by major category and initiative for the three and nine month periods ended August 31, 2000.
Charges Charges November 30, to May 31, to August 31 1999 Accrual 2000 Accrual 2000 Involuntary termination benefits................ $ 8,006 $ (1,994) $ 6,012 $ (342) $ 5,670 Facility closure and other closure costs........ 211 (158) 53 (17) 36 Lease and contract termination fees............. 381 (188) 193 (94) 99 ------------ ----------- --------- ---------- --------- Total accrued integration and rationalization costs......................... $ 8,598 $ (2,340) $ 6,258 $ (453) $ 5,805 ============ =========== ========= ========== =========
During 1999, as a result of the continuing integration and rationalization of the RPS Division with other business units, the Company accrued approximately $2.7 million as a charge to operations to establish an accrual for involuntary termination benefits and related costs for approximately 69 employees that served in primarily service and administration roles at various service facilities in France. This amount also included amounts for lease termination and other exit costs and was added to an amount of $0.3 million that remained accrued at November 30, 1999 for pension payments due to retirees who formerly worked at the Company's Glenrothes, Scotland facility. The table below summarizes the accrued liability activity by major category and initiative for the three and nine month periods ended August 31, 2000.
Charges Charges November 30, to May 31, to August 31 1999 Accrual 2000 Accrual 2000 Involuntary termination benefits................ $ 2,442 $ (896) $ 1,546 $ (1,053) $ 493 Facility closure and other closure costs........ 460 (42) 418 (112) 306 Lease and contract termination fees............. 138 (113) 25 (15) 10 ----------- ---------- --------- ---------- --------- Total accrued integration and rationalization costs......................... $ 3,040 $ (1,051) $ 1,989 $ (1,180) $ 809 =========== ========== ========= ========== =========
8. EARNINGS PER SHARE The Company presents two earnings per share ("EPS") amounts, Basic and Diluted. Basic EPS is calculated based on earnings available to common shareholders and the weighted average number of common shares outstanding during the reported period. Diluted EPS includes additional dilution from potential common stock, such as stock issuable pursuant to conversion of preferred stock or the exercise of stock options and warrants outstanding. The incremental shares from conversions of preferred stock or the exercise of stock options and warrants were not included in computing diluted EPS for the three and nine month periods ended August 31, 2000 and 1999 since the effect is antidilutive during periods when a loss from continuing operations is reported. For the three months ended August 31, 2000, the weighted average of potentially issuable common shares included 787,707 shares of convertible preferred stock outstanding and 2,499,527 shares related to warrants issued to Schlumberger. For the nine months ended August 31, 2000, the weighted average of potentially issuable common shares included 787,707 shares of convertible preferred stock outstanding and 2,516,216 shares related to warrants issued to Schlumberger. 9. GUARANTOR AND NONGUARANTOR FINANCIAL STATEMENTS In connection with the RPS Division acquisition and as part of the subsequent financing, the Company issued $123.0 million of 11.375% U.S. dollar denominated senior subordinated notes and 75.0 million of 11.375% EURO denominated senior subordinated notes. The senior subordinated notes are general unsecured obligations of the Company, subordinated in right of payment to all existing and future senior indebtedness of the Company, and guaranteed on a full, unconditional, joint and several basis by the Company's wholly owned domestic subsidiaries. The following unaudited condensed consolidating financial information presents: 1) Condensed consolidating financial statements as of August 31, 2000, and November 30, 1999 and for the three and nine month periods ended August 31, 2000 and the nine month period ended August 31, 1999, of (a) Tokheim Corporation, the parent; (b) the guarantor subsidiaries; (c) the nonguarantor subsidiaries; and (d) the Company on a consolidated basis. 2) Elimination entries necessary to consolidate Tokheim Corporation, the parent, with guarantor and nonguarantor subsidiaries. Investments in subsidiaries are accounted for by the parent using the equity method of accounting. The guarantor and nonguarantor subsidiaries are presented on a combined basis. The principal elimination entries eliminate investments in subsidiaries and intercompany transactions and balances. Separate financial statements for the guarantor subsidiaries and the nonguarantor subsidiaries are not presented because management believes that such financial statements would not be meaningful.
Consolidated Condensed Statement of Earnings For the three months ended August 31, 2000 (Amounts in thousands) Guarantor Nonguarantor Consolidated Parent Subsidiaries Subsidiaries Eliminations Total ---------- ----------- ------------ ----------- --------------- Net sales............................. $ 37,355 $ 13,165 $ 77,794 $ (5,646) $ 122,668 Cost of sales, exclusive of items listed below 29,203 9,547 62,829 (5,646) 95,933 Selling, general, and administrative expenses 6,615 3,601 9,613 -- 19,829 Depreciation and amortization................ 2,243 800 2,824 5,867 Merger and acquisition costs and other unusual items.............................. 7,276 5,046 824 - 13,146 ---------- ----------- ------------ ----------- --------------- Operating profit (loss)............... (7,982) (5,829) 1,704 -- (12,107) Interest (income) expense, net........ 1,740 6,567 6,796 -- 15,103 Foreign currency (gain) loss.......... (90) 338 402 -- 650 Equity in (earnings) loss of consolidated 20,499 -- -- (20,499) -- subsidiaries.......................... Minority interest in subsidiaries..... -- -- 12 -- 12 Other (income) expense, net........... 11 (54) 596 -- 553 ---------- ----------- ------------ ----------- --------------- Loss before reorganization costs, income taxes and extraordinary loss................ (30,142) (12,680) (6,102) 20,499 (28,425) Reorganization costs.................. -- 1,450 -- -- 1,450 ---------- ----------- ------------ ----------- --------------- Loss before income taxes and extraordinary (30,142) (14,130) (6,l02) 20,499 (29,875) loss.................................. Income tax expense (benefit).......... 54 -- 267 -- 321 ---------- ----------- ------------ ----------- --------------- Loss before extraordinary loss........ (30,196) (14,130) (6,369) 20,499 (30,196) Extraordinary loss on debt extinguishment -- -- -- -- -- ---------- ----------- ------------ ----------- --------------- Net (loss)............................ $ (30,196) $ (14,130) $ (6,369) $ 20,499 $ (30,196) ---------- ----------- ------------ ----------- ---------------
Consolidated Condensed Statement of Earnings For the nine months ended August 31, 2000 (Amounts in thousands) Guarantor Nonguarantor Consolidated Parent Subsidiaries Subsidiaries Eliminations Total ---------- ----------- ------------ ------------ --------------- Net sales............................. $ 115,282 $ 41,510 $ 248,512 $ (15,387) $ 389,917 Cost of sales, exclusive of items listed below 90,983 30,243 200,308 (15,387) 306,147 Selling, general, and administrative expenses 21,338 17,478 31,189 -- 70,005 Depreciation and amortization......... 6,483 2,092 9,876 -- 18,451 Merger and acquisition costs and other unusual items.............................. 7,639 8,346 2,609 -- 18,594 ---------- ----------- ------------ ------------ --------------- Operating profit (loss)............... (11,161) (16,649) 4,530 -- (23,280) ---------- ----------- ------------ ------------ --------------- Interest expense, net................. 4,453 19,237 20,935 -- 44,625 Foreign currency (gain) loss.......... (225) (56) 734 -- 453 Equity in (earnings) loss of consolidated 52,443 -- -- (52,443) -- subsidiaries.......................... Minority interest in subsidiaries..... -- -- 61 -- 61 Other (income) expense, net........... 59 (245) (269) -- (455) ---------- ----------- ------------ ------------ --------------- Loss before reorganization costs, income taxes and extraordinary loss................ (67,891) (35,585) (16,931) 52,443 (67,964) Reorganization costs.................. -- 1,450 -- -- 1,450 ---------- ----------- ------------ ------------ --------------- Loss before income taxes and extraordinary (67,891) (37,035) (16,931) 52,443 (69,414) loss.................................. Income tax expense (benefit).......... 161 (1,892) 369 -- (1,362) ---------- ----------- ------------ ------------ --------------- Loss before extraordinary loss........ (68,052) (35,143) (17,300) 52,443 (68,052) Extraordinary loss on debt extinguishment -- -- -- -- -- ---------- ----------- ------------ ------------ --------------- Net (loss) $ (68,052) $ (35,143) $ (17,300) $ 52,443 $ (68,052) ---------- ----------- ------------ ------------ ---------------
Consolidated Condensed Statement of Earnings For the nine months ended August 31, 1999 (Amounts in thousands) Guarantor Nonguarantor Consolidated Parent Subsidiaries Subsidiaries Eliminations Total ---------- ----------- ------------ ------------ --------------- Net sales............................. $ 121,653 $ 68,050 $ 332,923 $ (10,252) $ 512,374 ---------- ----------- ------------ ------------ --------------- Cost of sales, exclusive of items listed below 93,104 47,608 263,539 (10,252) 393,999 Selling, general, and administrative expenses 20,429 19,947 38,353 -- 78,729 Depreciation and amortization......... 3,755 3,464 12,060 -- 19,279 Merger and acquisition costs and other unusual items.......................... 887 687 4,541 -- 6,115 ---------- ----------- ------------ ------------ --------------- Operating profit (loss)............... 3,478 (3,656) 14,430 0 14,252 ---------- ----------- ------------ ------------ --------------- Interest (income) expense, net........ 10,169 (326) 28,101 (0) 37,944 Foreign currency loss................. 316 800 1,256 -- 2,372 Equity in (earnings) loss of consolidated subsidiaries.......................... 12,874 -- -- (12,874) -- Minority interest in subsidiaries..... -- -- 88 -- 88 Other (income) expense, net........... 4,689 (23,909) 18,172 -- (1,048) ---------- ----------- ------------ ------------ --------------- Earnings (loss) before income taxes... (24,570) 19,779 (33,187) 12,874 (25,104) Income taxes.......................... 54 (335) (198) (1) (480) ---------- ----------- ------------ ------------ --------------- Earnings (loss) before extraordinary item (24,624) 20,114 (32,989) 12,875 (24,624) Extraordinary loss on debt extinguishment (6,249) -- -- -- (6,249) ---------- ----------- ------------ ------------ --------------- Net earnings (loss)................... $ (30,873) $ 20,114 $ (32,989) $ 12,875 $ (30,873) ---------- ----------- ------------ ------------ ---------------
Consolidated Condensed Balance Sheet As of August 31, 2000 (Amounts In thousands) Guarantor Nonguarantor Consolidated Parent Subsidiaries Subsidiaries Eliminations Total ---------- ----------- ------------- ------------ -------------- ASSETS Current assets: Cash and cash equivalents............. $ 2,744 $ 6,293 $ 5,952 $ -- $ 14,989 Accounts receivables, net............. 51,959 53,396 82,069 (83,142) 104,282 Inventories, net...................... 20,209 7,898 51,642 (584) 79,165 Other current asset................... 2,074 801 10,578 -- 13,453 Total current assets.................. 76,986 68,388 150,241 (83,726) 211,889 Investments in subsidiaries........... 71,345 12,350 6,537 (90,232) - Property, plant, and equipment, net... 26,521 10,559 27,661 0 64,741 Goodwill, net......................... 106,970 27,729 144,646 0 279,345 Other non-current assets and deferred charges, net.......................... 243,278 257,315 4,898 (486,877) 18,614 Total assets.......................... $525,100 $ 376,341 $ 333,983 $ (660,835) $ 574,589 ---------- ----------- ------------- ------------ -------------- LIABILITIES AND SHAREHOLDERS EQUITY (DEFICIT) Liabilities subject to compromise Senior subordinated notes.......... $189,607 $ -- $ -- $ -- $ 189,607 Junior subordinated payment in kind 49,195 -- -- -- 49,195 note Accrued interest................... 12,633 -- -- -- 12,633 Accrued liabilities................ 13,507 206 -- -- 13,713 Total liabilities subject to compromise 264,942 206 -- -- 265,148 Liabilities not subject to compromise Notes payable, bank credit agreement -- -- -- -- -- Current maturities of other long-term debt -- -- 2,135 -- 2,135 DIP financing...................... 5,000 -- -- -- 5,000 Cash overdrafts.................... -- 2 14,827 -- 14,829 Accounts payable................... 58,413 34,401 49,784 (83,142) 59,456 Accrued expenses................... 30,359 12,919 23,480 - 66,758 Total current liabilities 358,714 47,528 90,226 (83,142) 413,326 Notes payable, bank credit agreement.. 30,230 193,537 91 -- 223,858 Senior subordinated notes............. -- -- -- -- -- Junior subordinated payment in kind notes -- -- -- -- -- Other long-term debt, less current 6,000 238,802 244,716 (486,877) 2,641 maturitie Guaranteed Employees' Stock Ownership 2,956 -- -- -- 2,956 Plan obligation.................... Post-retirement benefit liability..... 15,129 -- 3,390 -- 18,519 Other long-term liabilities........... 476 (220) 851 (104) 1,003 413,505 479,647 339,274 (570,123) 662,303 Redeemable convertible preferred stock 24,000 -- -- -- 24,000 Guaranteed Employees' Stock Ownership Plan obligation......................... (2,956) -- -- -- (2,956) Treasury stock, at cost............... (4,307) -- -- -- (4,307) 16,737 -- -- -- 16,737 Common stock.......................... 90,375 -- 7,595 (7,595) 90,375 Common stock warrants................. 26 ,187 -- -- -- 26,187 Accumulated comprehensive loss........ (8,023) (53,043) (18,486) (8,132) (87,684) Accumulated deficit (13,150) (50,263) 5,600 (74,985) (132,798) 95,389 (103,306) (5,291) (90,712) (103,920) Less treasury stock, at cost.......... (531) -- -- -- (531) 94,858 (103,306) (5,291) (90,712) (104,451) 111,595 (103,306) (5,291) (90,712) (87,714) Total liabilities and shareholders' equity (deficit)............................. $ 525,100 $ 376,341 $ 333,983 $ (660,835) $ 574,589 ---------- ----------- ------------- ------------ --------------
Consolidated Condensed Balance Sheet As of November 30, 1999 (Amounts In thousands) Guarantor Nonguarantor Consolidated Parent Subsidiaries Subsidiaries Eliminations Total ---------- ----------- ------------- ------------ -------------- ASSETS Current assets: Cash and cash equivalents........ $ 1,657 $ 2,705 $ 10,075 $ -- $ 14,437 Accounts receivables, net........ 56,905 83,987 132,423 (104,750) 168,565 Inventories, net................. 27,438 10,087 56,068 (65) 93,528 Other current assets............. 1,941 1,066 9,591 -- 12,598 Total current assets............. 87,941 97,845 208,157 (104,815) 289,128 Investments in subsidiaries...... 66,312 250,201 6,527 (323,040) -- Property, plant, and equipment, net 24,665 11,244 36,067 -- 71,976 Goodwill, net.................... 97,673 10,175 181,390 -- 289,238 Other non-current assets and deferred charges, net..................... 216,588 75,200 5,549 (256,877) 40,460 Total assets..................... $493,179 $444,665 $437,690 $(684,732) $690,802 -------------- ------------ ------------- ------------ -------------- LIABILITIES AND SHAREHOLDERS EQUITY (DEFICIT) Current maturities of long-term debt$ -- $ 7,500 $ 2,944 $ -- $ 10,444 Notes payable to banks -- -- 287 -- 287 Cash overdrafts -- 514 11,807 -- 12,321 Accounts payable 79,968 25,303 83,989 (104,749) 84,511 Accrued expenses 45,619 14,943 50,945 -- 111,507 Total current liabilities 125,587 48,260 149,972 (104,749) 219,070 Notes payable, bank credit agreement 19,599 184,685 -- -- 204,284 Senior subordinated notes........ 198,681 -- -- -- 198,681 Junior subordinated Payment In Kind -- 45,020 -- -- 45,020 note............................. Other long-term debt, less current maturities....................... 6,000 -- 254,895 (257,727) 3,168 Guaranteed Employees' Stock Ownership Plan obligation............... 4,351 -- -- -- 4,351 Post-retirement benefit liability 14,842 -- 3,851 -- 18,693 Other long-term liabilities...... 476 (216) 4,764 (98) 4,926 369,536 277,749 413,482 (362,574) 698,193 Redeemable convertible preferred stock 24,000 -- -- -- 24,000 Guaranteed Employees' Stock Ownership Plan obligation.................. (4,351) -- -- -- (4,351) Treasury stock, at cost.......... (4,210) -- -- -- (4,210) 15,439 -- -- -- 15,439 Common stock..................... 90,375 234,966 65,046 (300,012) 90,375 Common stock warrants............ 20,000 -- -- -- 20,000 Accumulated comprehensive loss... (8,023) (35,360) (17,013) (8,681) (69,077) Retained earnings (accumulated deficit) 6,383 (32,690) (23,825) (13,465) (63,597) 108,735 166,916 24,208 (322,158) (22,299) Less treasury stock, at cost..... (531) -- -- -- (531) 108,204 166,916 24,208 (322,158) (22,830) Total liabilities and shareholders' equity (deficit)................. $493,179 $444,665 $437,690 $(684,732) $ 690,802 -------------- ------------ ------------- ------------ --------------
Consolidated Condensed Statement of Cash Flows For the nine months ended August 31, 2000 (Amounts in thousands) Guarantor Nonguarantor Eliminations Consolidated Parent Subsidiaries Subsidiaries Total --------- ------------ ------------ ----------- ------------ Cash flows from operating activities: Net cash provided from (used in) operating activities............................ $ (57,755) $ 9,686 $ (21,896) $ 52,149 $ (17,816) --------- ------------ ------------ ----------- ------------ Cash flows from investing activities: Plant and equipment additions/transfers (4,853) (370) (2,263) -- (7,486) Proceeds from the sale/transfers of property and equipment....................... (1) -- 1,099 -- 1,098 Investments in and advances to subsidiaries, net................................... 52,149 -- -- (52,149) -- Net cash provided from (used in) investing activities............................ 47,295 (370) (1,164) (52,149) (6,388) --------- ------------ ------------ ----------- ------------ Cash flows from financing activities: Increase (decrease) in other debt..... -- 976 (785) -- 191 Increase in notes payable banks, bank credit agreement............................. 10,896 5,060 -- -- 15,956 Increase (decrease) DIP financing. 5,000 -- 5,000 Increase (decrease) in cash overdraft -- (513) 4,379 -- 3,866 Deferred debt issuance costs (2,324) -- -- -- (2,324) Other (97) -- -- -- (97) Preferred stock dividends (1,150) -- -- -- (1,150) --------- ------------ ------------ ----------- ------------ Net cash provided from financing activities 12,325 5,523 3,594 -- 21,442 --------- ------------ ------------ ----------- ------------ Effect of translation adjustments on cash (778) (11,251) 15,343 -- 3,314 --------- ------------ ------------ ----------- ------------ Increase (decrease) in cash 1,087 3,588 (4,123) -- 552 Beginning of year 1,657 2,705 10,075 -- 14,437 --------- ------------ ------------ ----------- ------------ End of period $ 2,744 $ 6,293 $ 5,952 $ -- $ 14,989 --------- ------------ ------------ ----------- ------------
Consolidated Condensed Statement of Cash Flows For the nine months ended August 31, 1999 (Amounts in thousands) Guarantor Nonguarantor Eliminations Consolidated Parent Subsidiaries Subsidiaries Total ---------- ------------ ------------ ----------- ------------ Cash flows from operating activities: Net cash provided from (used in) operating activities............................ $ (28,377) $ 1,668 $ (4,832) $ 12,874 $ (18,667) ---------- ------------ ------------ ----------- ------------ Cash flows from investing activities: Plant and equipment additions/transfers (12,180) 2,550 (6,065) -- (15,695) Proceeds from the sale/transfers of property and equipment....................... 8,535 (6,950) 2,257 -- 3,842 Investments in and advances to subsidiarie, net................................... 12,874 -- -- (12,874) - Net cash provided from (used in) investing activities............................ 9,229 (4,400) (3,808) (12,874) (11,853) ---------- ------------ ------------ ----------- ------------ Cash flows from financing activities: Redemption of senior notes............ (22,500) -- -- -- (22,500) Proceeds from 11.0% senior subordinated 209,647 -- -- -- 209,647 notes................................. Redemption of senior subordinated notes (170,000) -- -- -- (170,000) Increase (decrease) in other debt..... -- -- (280) -- (280) Increase (decrease) in cash overdraft. (131) (6) 5,967 -- 5,830 Increases in term debt................ 17,000 4,000 -- -- 21,000 Deferred debt issuance costs.......... (9,992) -- -- -- (9,992) Premiums paid on debt extinguishment.. (555) -- -- -- (555) Other................................. 890 -- -- -- 890 Proceeds from issuance of common stock 22 -- -- -- 22 Preferred stock dividends............. (1,124) -- -- -- (1,124) ---------- ------------ ------------ ----------- ------------ Net cash provided from financing activities 23,257 3,994 5,687 -- 32,938 ---------- ------------ ------------ ----------- ------------ Effect of translation adjustments on cash (2,207) (2,717) (3,310) -- (8,234) ---------- ------------ ------------ ----------- ------------ Increase (decrease) in cash........... 1,902 (1,455) (6,263) (5,816) Beginning of year..................... 849 5,381 20,571 -- 26,801 ---------- ------------ ------------ ----------- ------------ End of period......................... 2,751 3,926 14,308 -- 20,985 ---------- ------------ ------------ ----------- ------------
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS General Tokheim Corporation, including its subsidiaries ("Tokheim" or the "Company"), is the world's largest manufacturer and servicer of electronic and mechanical petroleum dispensing systems. These systems include petroleum dispensers and pumps, retail automation systems (including point-of-sale ("POS") systems), dispenser payment or "pay-at-the-pump" terminals, replacement parts and upgrade kits. The Company provides products and services to customers in more than 80 countries. The Company is the largest supplier of petroleum dispensing systems in Europe, Africa, Canada, and Mexico, and one of the largest in the United States. The Company also has established operations in Asia and Latin America. Results of Operations Consolidated sales for the three month period ended August 31, 2000 were $122.7 million compared to $169.2 million for the comparable 1999 three month period. Sales for North America decreased 22.8% for the three month period from $61.2 million in 1999 to $47.3 million in 2000. European sales decreased 30.4% from $102.6 million in 1999 to $71.4 million in the three month period ended August 31, 2000. African sales decreased 24.6% from $5.3 million in 1999 to $4.0 million in the 2000 three month period. Consolidated sales for the nine month period ended August 31, 2000 were $389.9 million compared to $512.4 million in the comparable 1999 nine month period. Sales for North America decreased 20.6% from $186.4 million in 1999 to $148.0 million for the nine month period in 2000. European sales decreased 26.1% from $310.5 million in 1999 to $229.4 million in 2000. African sales decreased 19.3% from $15.5 million in the 1999 nine month period to $12.5 million in the comparable 2000 period. Sales for the three and nine month periods of 2000 were adversely affected by lower POS sales attributable to Y2K purchases last year, industry declines in the major oil company, distributor, and commercial channels of distribution and exchange rate fluctuations. The impact of exchange rate fluctuations, especially the weakening of the EURO, was a decrease in sales for the three and nine month periods ended August 31, 2000 of 9.3% and 7.7%, respectively. Gross margins as a percent of sales (defined as net sales less cost of sales divided by net sales) decreased from 23.8% in the three month period ended August 31, 1999 to 21.8% in the 2000 three month period. For the nine month period ended August 31, gross margins decreased from 23.1% in 1999 to 21.5% in 2000. The decline in gross margin for the three and nine month periods of 2000 was primarily due to a greater relative proportion of service contract sales which provide a lower margin than dispenser and POS sales. Selling, general, and administrative ("SG&A") expenses as a percent of sales for the three and nine month periods ended August 31, 2000 were 16.2% and 18.0%, respectively, compared to 14.8% and 15.4% in the three and nine month periods of 1999. These percentage increases are due to lower sales in the three and nine month periods of 2000 compared to 1999. SG&A expenses have decreased from $25.0 million in the three month period ended August 31, 1999 to $19.8 in the comparable 2000 period. SG&A expenses have decreased from $78.7 million in the nine month period ended August 31, 1999 to $70.0 in the 2000 period. Variable costs for the three and nine month periods ended August 31, 2000 were lower than the comparable 1999 period due to the decrease in sales. The continued integration and rationalization of the RPS division and the realization of cost savings through these programs also contributed to this decline. Depreciation and amortization expense for the three and nine month periods ended August 31, 2000 was $5.9 million and $18.5 million, respectively, compared to $6.3 million and $19.3 million in the comparable 1999 periods. This expense decreased due to the increasing age of the Company's fixed assets. Net interest expense for the three and nine month periods ended August 31, 2000 was $15.1 million and $44.6 million, respectively, compared to $13.3 million and $37.9 million in the comparable 1999 periods. This change was due to increased borrowings, higher interest rates, and increased amortization of fees associated with amending the Company's credit agreement. Foreign currency loss for the three month period ended August 31, 2000 was $0.7 million compared to a gain of $0.5 million for the comparable period in 1999. The foreign currency loss for the nine month period ended August 31, 2000 was $0.5 million compared to a loss of $2.4 million in the comparable 1999 period. Foreign currency gains and losses were caused by fluctuations in the EURO and other foreign currency exchange rates relative to the dollar. The Company adjusted, on a monthly basis, current obligations payable in foreign currencies, including, but not limited to, interest owed on 75,000,000 EURO denominated senior subordinated notes. Income taxes for the three month period ended August 31, 2000 was an expense of $0.3 million mainly related to taxes on foreign operations. The comparable period in 1999 was $0.0 million. Income taxes for the nine month period ended August 31, 2000 was a benefit of $1.4 million compared to a benefit of $0.5 million for the comparable period in 1999. These benefits resulted primarily from changes to prior year income tax estimates. On August 11, 2000, the Company settled a claim made by the former shareholders of MSI out of court for an amount of $7 million. As a condition of the settlement document, the former shareholders of MSI, to whom the award was made have agreed to be treated in a similar fashion to the holders of the senior and junior subordinated notes in the bankruptcy proceeding. This award has been accrued for and classified as "a liability subject to compromise" in the consolidated condensed balance sheet. This claim will be settled in the form of stock in the newly reorganized company. As a result of the above mentioned items, loss applicable to common stock was $30.6 million or $2.41 per diluted common share for the three months ended August 31, 2000 compared to a loss applicable to common stock of $5.8 million or $0.46 per diluted common share for the same period in 1999. Loss applicable to common stock was $69.2 million or $5.46 per diluted common share for the nine month period ended August 31, 2000, compared to a loss applicable to common stock of $32.0 million or $2.52 per diluted common share for the comparable 1999 period. The nine month net loss for 1999 consisted of a loss before extraordinary loss, including preferred stock dividends, of $25.7 million or $ 2.03 per diluted common share plus an extraordinary loss from debt extinguishment of $6.2 million or $0.49 loss per diluted common share. LIQUIDITY AND CAPITAL RESOURCES Background and liquidity concerns: Beginning in early 1999, shortly after the RPS Division acquisition, the Company's sales slowed as a result of a decrease in sales to major oil companies (MOCs). During 1999, the MOCs underwent unprecedented consolidation. During this period of consolidation, the MOCs devoted much of their resources to corporate and systems integration, divestiture of redundant operations and reevaluation of global strategies, rather than capital expenditures on dispensers and POS systems. At the same time, depressed crude oil prices throughout 1999 decreased MOCs' profitability and, therefore, reduced their budgeted capital expenditures for equipment. Due to the decrease in revenues, the Company was not able to make the interest payment on the Senior Subordinated Notes due on August 1, 2000 and was also unable to meet certain financial covenants in its bank credit agreement at August 31, 2000. On August 28, 2000, the Company filed a Joint Prepackaged Plan of Reorganization (the "Plan") for the Company and its U.S. subsidiaries pursuant to Chapter 11 of the U.S. Bankruptcy Code with the U.S. Bankruptcy Court for the District of Delaware. The Bankruptcy Court confirmed the Company's Plan on October 4, 2000. The Company emerged from bankruptcy as of October 20, 2000, the effective date of the Plan. The Plan provided that, among other things, (i) the existing bank credit agreement was restructured to comprise a four year, eleven month senior term facility of $140 million and a four year, eleven month trust debt facility of $100 million on which trust debt interest will be accrued but not paid until at least December 31, 2002; (ii) the Company's bank group provided, in addition to the $240 million facilities detailed above, a debtor-in-possession financing (the "DIP Financing") facility with available borrowings of $48 million which was converted into a revolving credit facility upon the Company's emergence from the reorganization; (iii) members of the bank group received warrants with a five year term to purchase 678,334 shares of new common stock at an exercise price of $0.01 per share; (iv) in exchange for their Notes, the holders of $260 million of senior and junior subordinated notes and certain other unsecured creditors received 4,500,000 shares of new common stock representing 90% of the equity value of the restructured Company, subject to dilution for warrants to existing shareholders and management options; (v) the Company's employees' rights to receive cash redemption of preferred stock held by the Retirement Savings Plan were preserved; and (vi) the Company's approximately 12,669,000 shares of outstanding common stock were cancelled and existing holders of common stock received "out of the money" warrants with a six year term giving them the right to acquire an aggregate of 549,451 shares of the new common stock of the reorganized Company at an exercise price of $49.50 per share. Liabilities Subject to Compromise As a result of the Chapter 11 proceedings, certain prepetition liabilities were reclassified to liabilities subject to compromise at August 31, 2000. These claims will be settled in accordance with the Plan. The liabilities subject to compromise are reflected on the consolidated condensed balance sheet as of August 31, 2000 as follows: (in thousands) Senior subordinated notes $189,607 Junior subordinated payment in kind notes 49,195 Accrued interest 12,633 Other accrued liabilities 13,713 ---------- Total liabilities subject to compromise $265,148 As a result of the Chapter 11 proceedings and the related Plan, an extraordinary gain on the forgiveness of debt approximating $265.1 million is expected to be recognized in the consolidated statement of operations in October 2000, prior to the adoption of fresh start accounting. Reorganization costs incurred in the period subsequent to Chapter 11 proceedings on August 28, 2000, but before the end of the third quarter at August 31, 2000 totaled $1.5 million. These costs related to fees to secure the DIP Financing. Prior to the Chapter 11 proceedings on August 28, 2000, the Company incurred certain costs related to the Plan, approximating $4.7 million, that are classified as merger and acquisition costs and other unusual items on the Consolidated Condensed Statement of Earnings. These costs consisted primarily of professional fees. The components of merger and acquisition costs and other unusual items for the three and nine month periods ended August 31, 2000 and 1999 are as follows:
Three months ended Nine months ended August 31, August 31, 2000 1999 2000 1999 Pre-petition reorganization costs $ 4,450 $ -- $ 4,724 $ -- Settlement with former shareholders of MSI 7,000 -- 7,000 -- Employee compensation and expenses related to the RPS 386 649 1,496 3,805 Integration plan Lease cancellation and other facility expenses 60 75 175 269 Increased warranty and other product related costs 329 1 762 320 Other 921 567 4,437 1,721 ---------- ---------- -------- -------- Total $ 13,146 $ 1,292 $ 18,594 $ 6,115 ---------- ---------- -------- --------
Tokheim Corporation and Subsidiaries Unaudited Pro Forma Consolidated Condensed Balance Sheet August 31, 2000 Reorganization Adjustments Pro forma Debt reorganized Discharge Fresh balance sheet August 31, & Refinance Start August 31, 2000 2000 ASSETS Current assets: Cash and cash equivalents $ 14,989 $ -- $ -- $ 14,989 Accounts receivable, net 104,282 -- -- 104,282 Inventories, net 79,165 -- -- 79,165 Other current assets 13,453 -- -- 13,453 ---------- ----------- ----------- ---------- Total current assets 211,889 -- -- 211,889 Property, plant and equipment, net 64,741 -- -- 64,741 Other tangible assets 1,643 -- -- 1,643 Intangible assets, net 279,345 -- (2)(279,345) -- Other non-current assets, net 16,971 -- -- 16,971 Reorganization value in excess of amounts allocable to identifiable assets -- -- (2) 161,176 161,176 ---------- ----------- ----------- ---------- Total assets $ 574,589 $ -- $ (118,169) $ 456,420 ---------- ----------- ----------- ---------- LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT) Liabilities subject to compromise: Senior subordinated notes $ 189,607 $ (1)(189,607)$ -- $ -- Junior subordinated payment in kind notes 49,195 (1) (49,195) -- -- Accrued interest 12,633 (1) (12,633) -- -- Other accrued liabilities 13,713 (1) (13,713) -- -- Total liabilities subject to compromise 265,148 (265,148) -- -- Liabilities not subject to compromise: Current maturities of other long term debt 2,135 -- -- 2,135 DIP financing 5,000 (1) (5,000) -- -- Cash overdrafts 14,829 -- -- 14,829 Accounts payable 59,456 -- -- 59,456 Accrued expenses 66,758 -- -- 66,758 Total current liabilities 413,326 (270,148) -- 143,178 Notes payable, bank credit agreement 223,858 (1)(223,858) -- -- Other long term debt, less current maturities 2,641 -- -- 2,641 Guaranteed employees' stock ownership plan obligation 2,956 -- -- 2,956 Post-retirement benefit liability 18,519 -- -- 18,519 Other long-term liabilities 1,003 -- -- 1,003 Term loans and revolving loans -- (1) 145,000 -- 145,000 Special loans -- (1) 100,000 -- 100,000 Debt discount for bank warrants and Series A Senior Preferred -- (1) (6,877) -- (6,877) Stock Total liabilities 662,303 (255,883) -- 406,420 Redeemable convertible preferred stock 24,000 -- (2) (13,875) 10,125 Guaranteed employees' stock ownership plan obligation (2,956) -- -- (2,956) Treasury stock, at cost (4,307) -- (2) 4,307 -- Series A Senior Preferred Stock -- -- (2) 100 100 ---------- ----------- ----------- ---------- Total preferred equity 16,737 -- (9,468) 7,269 Common stock 90,375 -- (1) (90,375) -- Common stock warrants 26,187 -- (1) (26,187) -- Accumulated comprehensive loss (87,684) -- (3) 87,684 -- Accumulated deficit (132,798) -- (3) 132,798 -- New common stock -- -- (1) 4,500 4,500 New warrants issued to bank group -- -- (1) 6,777 6,777 New warrants issued for old cancelled shares -- -- (1) 1,422 1,422 Additional paid in capital -- -- (1) 30,032 30,032 (87,183) -- 137,183 50,000 Less treasury stock, at cost (531) -- (1) 531 -- ---------- ----------- ----------- ---------- Total shareholders' equity (87,714) -- 137,714 50,000 ---------- ----------- ----------- ---------- Total liabilities and shareholders' equity (deficit) $ 574,589 $ (255,883) $ 137,714 $ 456,420 ---------- ----------- ----------- ----------
The unaudited pro forma consolidated condensed balance sheet prepared as of August 31, 2000 included above illustrates the effect of the Company's plan of reorganization and the effect of implementing certain fresh start accounting adjustments as if the Plan had been effective on August 31, 2000. The adjustments are limited to presenting (a) the Company's reorganized capital structure, including its new credit agreement, (b) the effect of discharging the senior and junior subordinated notes, (c) the elimination of existing goodwill and debt issuance costs associated with debt that has been discharged or refinanced, (d) the elimination of the accumulated deficit and comprehensive loss, and (e) the estimated liability for the discounted present value of the future redemption of preferred stock under the Company's existing guaranteed ESOP. The pro forma consolidated condensed balance sheet prepared as of August 31, 2000 does not give effect to all adjustments necessary to state assets and liabilities at their estimated fair value. The Company will record these adjustments and allocate the estimated reorganization value to identifiable tangible and intangible assets based on their estimated fair value when fresh start accounting is adopted on the effective date of the Plan and the valuation process is completed. The reorganization value used in preparing the unaudited consolidated condensed pro forma balance sheet was assumed to be $50 million for purposes of fresh start accounting. A description of the reorganization is as follows: 1. To record the discharge of the senior and junior subordinated notes and borrowings under the existing credit agreement, the cancellation of old common stock, warrants and treasury stock, and the issuance of new common stock, Series A Senior Preferred Stock and warrants pursuant to the Plan; 2. To record certain adjustments to state assets and liabilities at their estimated fair value, including the establishment of reorganization value in excess of amounts allocable to identifiable assets using the reorganization value discussed above. As stated above, these adjustments are limited to recording the elimination of existing goodwill and debt issuance costs associated with debt that has been discharged or refinanced, and the estimated liability for the discounted present value of the future redemption of preferred stock under the Company's existing guaranteed ESOP; 3. To eliminate the accumulated deficit and accumulated comprehensive loss (which consists of foreign currency translation losses). In connection with the Chapter 11 proceedings discussed above, the Company entered into a $48 million debtor-in-possession financing agreement (the "DIP Financing") with its existing bank group led by AMSOUTH BANK and ABN AMRO BANK N.V. (collectively, the "DIP Lenders"). The Bankruptcy Court granted final approval of the DIP Financing on August 29, 2000. The DIP Financing provided for revolving credit based on eligible accounts receivable, inventory, and property, plant and equipment. The DIP Financing was used to fund working capital requirements and guarantee letter of credit obligations during the Chapter 11 proceedings, and to provide funds for general corporate purposes in the ordinary course of business. Interest is payable under the DIP Financing at the Company's option at the higher of the lenders' reference rate or the federal funds effective rate plus 0.5%, plus 2.50% per annum or the Eurodollar Rate plus 4.00% per annum. At August 31, 2000, the outstanding balance under the DIP Financing was $5 million. As a result of the confirmation of the Company's Plan by the Bankruptcy Court, the DIP Financing was replaced by a Post Confirmation Credit Agreement (the "New Credit Agreement") on October 20, 2000. The New Credit Agreement, which was entered into by Tokheim Corporation and certain of its subsidiaries (the "Borrowers" or the "Company"), consists of a $140 million term facility (the "term loans") which is divided into a Tranche A term loan, a Tranche B term loan, and a $100 million trust facility referred to as the "special loans" in the New Credit Agreement. The New Credit Agreement also includes a $48 million revolving credit facility (the "revolving loans" - which includes letters of credit) that was converted from the DIP Financing discussed above. Borrowings under the revolving loans are subject to certain borrowing base limitations related to eligible accounts receivable, inventory, and property, plant and equipment. The term loans and revolving loans mature an September 20, 2005 and the special loans are due in $25 million installments on November 30, 2002-2004 and September 20, 2005. Indebtedness under the term loans and revolving loans bears interest based upon (at the Company's option) (i) the Base Rate (defined as the higher of the federal funds rate (as adjusted pursuant to the New Credit Agreement) plus 0.50% and the applicable prime rate) plus an applicable margin of 3.50% for the term loans and 2.50% for the revolving credit loans, or (ii) the Eurodollar Rate (as defined in the New Credit Agreement) plus an applicable margin of 5.00% for the term loans and 4.00% for the revolving credit loans. Interest on the special loans is payable at an annual rate of 16.00%. Accrued interest on Base Rate loans is payable in arrears on the last day of each calendar month and at maturity. Accrued interest on each Eurodollar Rate loan is payable on the last day of each interest period. Accrued interest on the special loans is capitalized and added to the unpaid principal on the interest payment date until maturity. In consideration for the New Credit Agreement, the Company incurred certain fees in October 2000 approximating $1.5 million to the bank group along with warrants with a five year term to purchase 678,334 shares of the Company's common stock at an exercise price of $0.01 per share. The Company also issued to the bank group shares of preferred stock with a liquidation preference of $.10 million with quarterly dividends at an annual rate of 16.00% (the "New Preferred Stock"). The holders of the New Preferred Stock are entitled to elect two directors to the Company's board of directors, voting as a separate class. In the event the Company has a payment default under the New Credit Agreement, the holders of the New Preferred Stock, voting as a separate class, will be entitled to elect a majority of the directors on the Company's board of directors. The New Credit Agreement provides for commercial and standby letters of credit not to exceed $5 million and $3 million at any time, respectively. Interest is due on outstanding letters of credit at the Base Rate plus 2.50% per annum plus an additional 2.00% beginning on the third business day after receipt of notice from the lender that a payment was made on behalf of the Company. A nonrefundable fee is due monthly for each letter of credit equal to 4.00% per annum of the undrawn amount. The Borrowers may prepay the term loans and special loans in whole or in part provided that the Company does not make any prepayment of the term loans if any special loans remain outstanding. The Company is required to make mandatory prepayments of the term loans, special loans, and revolving loans for excess cash flow (as defined in the New Credit Agreement, commencing with fiscal year 2002) and in the case of the receipt of net cash proceeds from asset sales, federal tax refunds, insurance recoveries, or the issuance of debt or equity securities, subject to certain exceptions. Premiums are charged on voluntary or mandatory prepayments of the term loans and special loans at a range of .50% to 2.00% of the outstanding principal balance depending an the date of the prepayment. The New Credit Agreement requires the Company to maintain specified financial levels and ratios and to meet certain financial tests, including a minimum level of EBITDA (as defined in the New Credit Agreement), a fixed charge coverage ratio, an interest coverage ratio, a senior debt to EBITDA ratio, and a total debt to EBITDA ratio. The New Credit Agreement also contains covenants which, among other things, limit the amount of capital expenditures, the incurrence of additional indebtedness, the payment of dividends, transactions with affiliates, asset sales, acquisitions, investments, mergers and consolidations, prepayments of certain other indebtedness, liens and encumbrances and other matters customarily restricted in such agreements. At May 31, 2000 and August 31, 2000, the Company was in violation of several of its financial covenants under its bank credit agreement, including covenants relating to the senior leverage ratio, total leverage ratio, interest expense coverage ratio, fixed charge coverage ratio, minimum EBITDA, and the clean down or availability covenant on the working capital facility. No waiver for these instances of non-compliance is necessary because the Company has refinanced its bank credit agreement with the New Credit Agreement subsequent to August 31, 2000, as described above. The Company's ability to maintain specified financial levels and meet financial ratios and tests in the future may be affected by events beyond its control. While the Company currently expects to be in compliance with the covenants and satisfy the financial ratios and tests in the future, there can be no assurance that the Company will meet such financial ratios and tests or that it will be able to obtain future amendments to the New Credit Agreement, if so needed, to avoid a default. In the event of default, the lenders could elect to declare all amounts borrowed under the New Credit Agreement to be due and payable. Indebtedness of the Company under the New Credit Agreement (a) is collateralized by (i) a first perfected security interest in and lien on certain of the real and personal property assets of the Company (including claims against certain subsidiaries to which the Company has made intercompany loans) and the Company's direct and indirect material majority-owned U.S. subsidiaries, (ii) a pledge of 100% of the stock of the Company's direct and indirect material majority-owned U.S. subsidiaries, and (iii) a pledge of 65% of the stock of the Company's first-tier material foreign subsidiaries and (b) is guaranteed by all of the Company's direct and indirect majority-owned U.S. subsidiaries. Cash used in operations for the nine month period ended August 31, 2000 was $17.8 million versus $18.7 million in the comparable period of 1999. During the nine month period for 2000 the Company reduced customer receivables by $51.2 million. The Company used these funds to reduce accounts payable and accrued expenses by $19.0 million and $14.3 million, respectively, and to fund operating losses. Cash used in investing activities for the nine month period ended August 31, 2000 was $6.4 million compared to $11.9 million in the comparable 1999 period. The reduction in capital expenditures in the nine month period was caused by restricting capital spending as a result of the liquidity situation. Cash provided from financing activities for the nine month period ended August 31, 2000 was $21.4 million compared to the same time period in 1999 of $32.9 million. The cash provided in the 2000 period is primarily attributable to increased borrowings from the Company's credit facilities. The Company believes that operating cash flow and amounts available under its credit facilities will be sufficient for it to meet its debt service and other obligations and capital requirements in the future. It is uncertain, however, whether the Company will be able to generate sufficient cash flows; the Company's operating cash flow is dependent on factors beyond the Company's control, moreover, including general economic conditions in the markets the Company serves, there can be no assurance that actual operating cash flow will meet expectations. As part of the purchase price of the RPS Division, the Company provided for certain costs it expects to incur to close down redundant operations in connection with the reorganization and rationalization of the RPS Division's operations. The Company has incurred $2.8 million of expenditures in the nine month period ended August 31, 2000 and expects to incur an additional $5.8 million which consists of $5.7 million of involuntary termination costs to reduce redundant staffing levels and approximately $1.0 million associated with lease breakage fees. These costs have been aggregated and included in accrued liabilities. The Company estimates the future cash expenditures necessary to close or consolidate certain of the existing, non-RPS Division locations to approximate $0.8 million. New Accounting Pronouncements The company is still considering the impact that accounting pronouncements recently issued by the Financial Accounting Standards Board and American Institute of Certified Public Accountants will have on the Consolidated Condensed Financial Statements as of August 31, 2000. PART II. OTHER INFORMATION Item 1. Legal Proceedings On October 16, 2000, a notice of appeal of the order of confirmation of the Plan was filed by Schlumberger. Schlumberger, which is involved in a dispute with the Company arising out of the Company's 1998 purchase of Schlumberger's RPS division, is appealing on the grounds that it was improperly classified as a Class 5A creditor in the Plan rather than as a Class 3 creditor. The claims of Class 5A creditors, to the extent allowed, will be satisfied through the receipt of common stock in the reorganized Company rather than cash, while Class 3 general unsecured creditors are unimpaired and will be paid in full in cash. Schlumberger made these same arguments in a formal objection filed prior to the hearing on Plan confirmation, which arguments were rejected by the bankruptcy court in confirming the Plan. In December 1997, the Company acquired Management Solutions, Inc. ("MSI"). MSI develops and distributes retail automation systems (includes POS software), primarily for the convenience store, petroleum dispensing and fast food service industries. The Company paid MSI's stockholders an initial amount of $12.0 million. The Company is also obligated to make contingent payments of up to $13.2 million through 2000 based upon MSI's performance. The Company was not obligated to make any performance payments in 1999 or 1998 under the purchase agreement. The four former shareholders of MSI filed a $30.0 million arbitration claim against the Company with the American Arbitration Association on July 7, 1999 alleging fraud, breach of contract, tortious interference with contractual relations and breach of implied covenant of good faith and fair dealing. The claims relate to the Company's acquisition of MSI in 1997 and the termination for cause of its president and chief executive officer in February 1999. On August 11, 2000, the Company settled the claim out of court for an amount of $7 million. As a condition of the settlement document, the former shareholders of MSI, to whom the award was made, have agreed to be treated in a similar fashion to the holders of the senior and junior subordinated notes in the bankruptcy proceeding. This award has been accrued for and classified as "a liability subject to compromise" in the consolidated condensed balance sheet. This claim will be settled in the form of stock in the newly reorganized company. New York Stock Exchange On February 18, 2000, the Company announced that it failed to meet newly effective New York Stock Exchange ("NYSE") continued listing standards requiring total market capitalization and total stockholders equity of not less than $50.0 million each. The Company submitted a plan on January 31, 2000 to the Listings and Compliance Committee (the "NYSE Committee") of the NYSE demonstrating how the Company planned to comply with the newly effective standards. Based upon management estimates, the Company believed it would satisfy the new standards of the NYSE. After reviewing the plan, the NYSE Committee informed the Company in a letter dated April 6, 2000, that it had agreed to accept the Company's submitted plan, and that senior NYSE management had acknowledged such acceptance. As a result, the NYSE was prepared to continue the listing of the Company at that time. The NYSE would perform quarterly reviews during the 18 months from receipt of its initial December 30, 1999 letter to the Company for compliance with the goals and initiatives as outlined in the Company's plan. Failure to achieve these goals could result in the Company being subject to NYSE trading suspension at the point the initiative or goal was not met. The Company was informed that it would need to achieve the new minimum continued listing standards of market capitalization of not less than $50.0 million and total stockholders' equity of not less $50.0 million at the end of the 18 month plan period. Failure to achieve any of the minimum requirements at the appropriate time would result in the Company being suspended by the NYSE with application made to the SEC to delist the Company's common stock. During the first quarter of 2000, the Company advised the NYSE that, due to continuing low levels of business activity, it had decided not to proceed with a key element of the plan. On July 3, 2000, the Company was notified that it would be delisted from the NYSE as of July 14, 2000, for failing to meet the continued listing criteria. The Company's common stock began trading on the OTC Bulletin Board on Friday July 14, 2000, under the symbol "TOKM". Following the Effective Date, pursuant to the Plan, the Company common stock listed under the symbol "TOKM" has been cancelled and no longer trades on the OTC Bulletin Board. Item 3. Defaults Upon Senior Securities Beginning in early 1999, shortly after the RPS Division acquisition, the Company's sales slowed as a result of a decrease in sales to MOCs. During 1999, the MOCs underwent unprecedented consolidation. During this period of consolidation, the MOCs devoted much of their resources to corporate and systems integration, divestiture of redundant operations and reevaluation of global strategies, rather than capital expenditures on dispensers and POS systems. At the same time, depressed crude oil prices throughout 1999 decreased MOCs' profitability and, therefore, reduced their budgeted capital expenditures for equipment. Due to the decrease in revenues, the Company determined that it would not be able to make the August 1, 2000 interest payment due on approximately $200 million of 11.375% Senior Subordinated Notes due 2008, comprised $123 million in aggregate principal amount of dollar notes (the "Dollar Notes") and Euro 75 million in aggregate principal amount (valued at approximately $75 million) of euro notes (the "Euro Notes" and, collectively with the Dollar Notes, the "Senior Subordinated Notes"). The Company also determined that it would be unable to meet certain financial covenants in the 1998 credit agreement (as amended, the "Prepetition Credit Agreement") which provided a $120 million revolving working capital facility due September 30, 2003 and an additional revolving loan facility in the amount of $10 million which expires on December 22, 2001. Tokheim was also in arrears with respect to interest under $40 million of 12.0% junior subordinated payment-in-kind notes due 2008 (the "Junior Subordinated Notes") and a three year $24 million loan facility granted by the Prepetition Lenders to fund the Company's employee stock ownership plan ("ESOP"). As of August 28, 2000, an aggregate amount of approximately $191 million in principal and $13 million in accrued interest was outstanding under the Senior Subordinated Notes. The aggregate obligation under the Prepetition Credit Agreement, as of August 28, 2000, was approximately $230 million, including $116 million on the revolving facility, including the additional revolving loan facility (both fully drawn) and a term loan balance of approximately $110 million. As of August 28, 2000, the aggregate obligations under the ESOP loan facility was approximately $4 million. As of August 28, 2000, an aggregate amount of approximately $50 million was outstanding under the Junior Subordinated Notes. Item 4. Submission of Matters to a Vote of Security Holders (a) Pursuant to the approval of the Class 7 Solicitation Order by the Bankruptcy Court, holders of Company common stock outstanding immediately prior to the petition date were deemed to have rejected the Plan and, therefore, were not entitled to vote on the Plan. (b) On August 16, 2000 the Company caused a copy of the disclosure statement, the Plan and the appropriate ballots to be mailed to holders of claims in Classes 4, 5A and 5B (as defined in the Plan) entitled to vote on the Plan (these claims include secured lender claims, senior subordinated note claims, junior subordinated note claims and certain general impaired unsecured claims). The Company established August 28, 2000 as the deadline for receipt of votes to accept or reject the Plan (the "Voting Deadline"). As of the Voting Deadline, each of the above-mentioned Classes had voted overwhelmingly to accept the Plan in accordance with the requirements of the Bankruptcy Code. Specifically, (1) 96.97% in amount and 94.74% in number of those holders of Class 4 claims voting on the Plan voted to accept the Plan; (2) 99.83% in amount and 93.1% in number of those Holders of Class 5A claims voting on the Plan voted to accept the Plan; and (3) 100% in amount and 100% in number of those Holders of Class 5B claims voting on the Plan voted to accept the Plan. (c) Pursuant to the Plan, on the Effective Date, the Board of Directors of the Company shall have nine (9) members including Douglas K. Pinner, six (6) directors designated by an ad hoc committee of prepetition noteholders (the "Bondholder Committee") and two (2) directors designated by the Prepetition Lenders. The Board of Directors of the Company will be deemed to have resigned on the Effective Date. Item 5. Other Information Certain statements in this filing, including statements preceded by, followed by or that include the words "may," "will," "should," "could," "expects," "plans," "anticipate," "believes," " estimates," "predicts," "potential," or "continue" or the negative of such terms and other comparable terminology and words of similar import, constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act, Section 21C of the Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act of 1995. These statements involve known and unknown risks that may cause the actual results of the Company to differ materially from any results expressed or implied by the forward-looking statements. These risks include: inability to execute the restructuring plan as approved by the court; increases in the Company's cost of borrowing, or a default under any material debt agreement; inability to achieve anticipated cost savings or revenue growth; dependence on the retail petroleum industry; business disruptions; material adverse changes in economic conditions in the markets we serve; inability to forecast or achieve projected operating results; fluctuations in exchange rates among various foreign currencies; costs in adjusting to the Euro; changes in, or failure of the Company to comply with current and future governmental, environmental or other regulatory actions and conditions in our operating areas; competition from others in the industry; increases in labor costs and relations with union bargaining units representing our employees; the integration of our operations with those of businesses we have acquired or may acquire in the future and the realization of the expected benefits; failure to obtain new customers or retain existing customers; inability to protect proprietary technology or to integrate new technologies; changes in business strategy or development plans; lack of funds for capital expenditures or R & D; inability to carry out strategies to accelerate new product development programs; changed demand for new products; loss of key management; adverse publicity; contingent and litigation claims asserted against the Company; and loss of significant customers or suppliers; and other risks and uncertainties as may be detailed from time to time in our public announcements and SEC filings. Given these uncertainties, investors are cautioned not to unduly rely on such forward-looking statements. The Company disclaims any obligation to update any such factors or to announce publicly the result of any revisions to any of the forward-looking statements contained in this filing to reflect future events or developments. Item 6. Exhibits and Reports on Form 8-K a. Exhibits Exhibit No. Document 2.1 Stock Purchase Agreement, dated as of December 29, 1997 between Tokheim Corporation and Arthur S. ("Rusty") Elston, Ronald H. Elston, Eric E. Burwell and Curt E. Burwell (incorporated herein by reference to the Company's Current Report on Form 8-K, dated December 31, 1997). 2.2 Master Agreement for Purchase and Sale of Shares, Assets, and Liabilities, dated as of June 19, 1998, between Tokheim Corporation and Schlumberger Limited (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 2.3 Amendment No. 1 to the Master Agreement for Purchase and Sale of Shares, Assets and Liabilities, dated as of September 30, 1998 between Tokheim Corporation and Schlumberger Limited (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 3.1 Restated Articles of Incorporation of Tokheim Corporation, as amended, as filed with the Indiana Secretary of State on February 5, 1997 (incorporated herein by reference to the Company's Annual Report on Form 10-K/A for the year ended November 30, 1996). 3.2 Amended and Restated Articles of Incorporation of Tokheim Corporation, as filed with the Indiana Secretary of State as of October 20, 2000. 3.3 Bylaws of Tokheim Corporation, as restated on July 12, 1995 and amended March 2, 1998 (incorporated herein by reference to the Company's Quarterly Report on Form 10-Q for the period ended May 31, 1998) 3.4 Amended and Restated Bylaws of Tokheim Corporation, as amended and restated as of October 20, 2000. 4.1 Rights Agreement, dated as of January 22, 1997, between Tokheim Corporation and Harris Trust and Savings Bank, as Rights Agent (incorporated herein by reference to the Company's Current Report on Form 8-K, filed February 23, 1997). 4.2 Amendment No. 1 to Rights Agreement, dated as of September 30, 1998, between Tokheim Corporation and Harris Trust and Savings Bank (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.3 Securities Purchase Agreement, dated September 30, 1998, between Tokheim Corporation and Schlumberger Limited (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.4 12% Senior Subordinated Note due January 28, 1999 in the amount of $170,000,000 (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.5 Senior Subordinated Note Indenture, dated as of September 30, 1998, among Tokheim Corporation, Management Solutions, Inc., Tokheim Equipment Corporation, Tokheim RPS, LLC, Sunbelt Hose & Petroleum Equipment, Inc., Envirotronic Systems, Inc., Gasboy International, Inc., Tokheim Automation Corporation, Tokheim Investment Corp., as guarantors, and Harris Trust and Savings Bank, as trustee (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.6 12% Junior Subordinated Note due 2008 in the amount of $40,000,000 (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.7 Junior Subordinated Note Indenture, dated as of September 30, 1998, among Tokheim Corporation, Management Solutions, Inc., Tokheim Equipment Corporation, Tokheim RPS, LLC, Sunbelt Hose & Petroleum Equipment, Inc., Envirotronic Systems, Inc., Gasboy International, Inc., Tokheim Automation Corporation, Tokheim Investment Corp., as guarantors, and Harris Trust and Savings Bank, as trustee (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.8 Amendment No. 1 to Junior Subordinated Note Indenture, dated as of January 25, 1999 (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1998). 4.9 Warrant to Purchase up to 19.9% of the Shares of Common Stock of Tokheim Corporation (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.10 Registration Rights Agreement, dated September 30, 1998, between Tokheim Corporation and Schlumberger Limited (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.11 Note Purchase Agreement, dated as of September 30, 1998, among Tokheim Corporation, the Subsidiaries and the Purchasers (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.12 Amended and Restated Credit Agreement, dated as of September 30, 1998, among Tokheim Corporation, the Borrowing Subsidiaries, the Lenders and NBD Bank, N.A. as administrative agent and Credit Lyonnais as documentation and collateral agent and Gleacher NatWest Inc. and Bankers Trust Company as co-syndication agents (incorporated herein by reference to the Company's Current Report on Form 8-K/A dated October 1, 1998). 4.13 Second Amended and Restated Credit Agreement, dated as of December 14, 1998, among Tokheim Corporation, the Borrowing Subsidiaries, the Lenders and NBD Bank, N.A. as administrative agent and Credit Lyonnais as documentation and collateral agent and Gleacher NatWest Inc. and Bankers Trust Company as co-syndication agents (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended September 30, 1998). 4.14 Consent and Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of January 11, 1999 (incorporated herein by reference to the Company's Quarterly Report on Form 10-Q, for the quarter ended February 28, 1999). 4.15 Amendment No. 2 to Second Amended and Restated Credit Agreement, dated as of March 1, 1999 (incorporated herein by reference to the Company's Quarterly Report on Form 10-Q, for the quarter ended February 28, 1999). 4.16 Amendment No. 3 to Second Amended and Restated Credit Agreement, dated as of February 27, 1999 (incorporated herein by reference to the Company's Quarterly Report on Form 10-Q, for the quarter ended February 28, 1999). 4.17 Amendment No. 4 and Waiver to Second Amended and Restated Credit Agreement, dated as of October 14, 1999 (incorporated herein by reference to the Company's Quarterly Report on Form 10-Q, for the quarter ended August 31, 1999). 4.18 Amendment No. 5 to Second Amended and Restated Credit Agreement, dated as of December 22, 1999 (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended September 30, 1999). 4.19 Amendment No. 6 to Second Amended and Restated Credit Agreement, dated as of December 22, 1999. 4.20 Warrant and Registration Rights Agreement, dated as of December 22, 1999, among Tokheim Corporation, Bank One, Indiana, National Association, Credit Lyonnais, Chicago Branch, Bankers Trust Company, ABN Amro Bank, N.V., Credit Agricole Indosuez, Harris Trust and Savings Bank, Compagnie Financiere de Cic et de L'Union Europeene, Mercantile Bank N.A., The Provident Bank, Finova Capital Corporation, Imperial Bank, Natexis Banque BFCE, Bank Polska Kasa Opieke S.A.- Pekao S.A. Group, New York Branch, Senior Debt Portfolio, Eaton Vance Senior Income Trust, Oxford Strategic Income Fund, Octagon Loan Trust, Octagon Investment Partners II, LLC, Indosuez Capital Funding IIA, Limited, Indosuez Capital Funding IV, L.P., Alliance Investment Opportunities Fund, L.L.C., Amsouth Bank and ARES Leveraged Investment Fund II, L.P. (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended September 30, 1999). 4.21 Form of Warrant Certificate, dated as of December 22, 1999 (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended September 30, 1999). 4.22 Dollar Notes Indenture, dated as of January 29, 1999, among Tokheim Corporation, certain subsidiary guarantors of Tokheim Corporation, and U.S. Bank Trust National Association, as trustee (incorporated herein by reference to Amendment No. 140 to the Company's Registration Statement on Form S-4, dated June 15, 1999, as amended). 4.23 Euro Notes Indenture, dated as of January 29, 1999, among Tokheim Corporation, certain subsidiary guarantors of Tokheim Corporation, and U.S. Bank Trust National Association, as trustee (incorporated herein by reference to Amendment No. 140 to the Company's Registration Statement on Form S-4, dated June 15, 1999, as amended). 4.24 Dollar Registration Rights Agreement, dated as of January 29, 1999, among Tokheim Corporation, BT Alex. Brown Incorporated, Credit Lyonnais Securities (USA) Inc., First Chicago Capital Markets, Inc., Gleacher NatWest International, ABN AMRO Incorporated, PaineWebber Incorporated, Schroder & Co. Inc. and certain subsidiary guarantors of Tokheim Corporation (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1998). 4.25 Euro Registration Rights Agreement, dated as of January 29, 1999, among Tokheim Corporation, BT Alex. Brown Incorporated, Credit Lyonnais Securities (USA) Inc., First Chicago Capital Markets, Inc., Gleacher NatWest International, ABN AMRO Incorporated, PaineWebber Incorporated, Schroder & Co. Inc. and certain subsidiary guarantors of Tokheim Corporation (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1998). 4.26 Post-Confirmation Credit Agreement, dated as of October 20, 2000, among Tokheim Corporation, various subsidiaries thereof as Borrowers, various financial institutions, AmSouth Bank, as Documentation Agent, and ABN AMRO Bank N.V., as Administrative Agent. 4.27 Series A Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and the holders of Series A Warrant Certificates. 4.28 Series B Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and Computershare Investor Services, LLC, as Warrant Agent. 4.29 Series C Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and Computershare Investor Services, LLC, as Warrant Agent. 4.30 Registration Rights Agreement, dated as of October 20, 2000, among Tokheim Corporation and the Holders of Stock to be listed on Schedule 1. 10.1 Tokheim Corporation 1992 Stock Incentive Plan, established December 15, 1992 (incorporated herein by reference to the Company's Registration Statement on Form S-8, File No. 33-52167, dated February 4, 1994). 10.2 Retirement Savings Plan for Employees of Tokheim Corporation and Subsidiaries (incorporated herein by reference to Amendment No. 1 to the Company's Registration Statement on Form S-8, File No. 33-29710, dated August 1, 1989). 10.3 Tokheim Corporation 1996 Key Management Incentive Bonus Plan (incorporated herein by reference to the Company's Report on Form 10-Q/A, for the quarter ended February 29, 1996). 10.4 Tokheim Corporation Deferred Compensation Plan (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.5 Tokheim Corporation Supplemental Executive Retirement Plan (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.6 Employment Agreement, dated July 15, 1999, between Tokheim Corporation and Douglas K. Pinner (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.7 Employment Agreement, dated May 15, 2000, between Tokheim Corporation and Robert L. Macdonald. 10.8 Employment Agreement, dated July 15, 1999, between Tokheim Corporation and John A. Negovetich (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.9 Employment Agreement, dated July 15, 1999, between Tokheim Corporation and Jacques St-Denis (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.10 Employment Agreement, dated July 15, 1999, between Tokheim Corporation and Norman L. Roelke (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.11 Employment Agreement, dated July 15, 1999, between Tokheim Corporation and Scott A. Swogger (incorporated herein by reference to the Company's Report on Form 10-Q, for the quarter ended August 31, 1999). 10.12 Technology License Agreement, effective as of December 1, 1997, between Tokheim Corporation and Gilbarco, Inc. (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1997). 10.13 Tokheim Corporation 1997 Incentive Plan (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1997). 10.14 Employment Agreement, dated December 31, 1997, between Management Solutions, Inc. and Arthur S. Elston (incorporated herein by reference to the Company's Annual Report on Form 10-K, for the year ended November 30, 1997). 10.15 Tokheim Corporation Management Option Plan. 10.16 Form of Incentive Stock Option Agreement under Tokheim Corporation Management Option Plan. 10.17 Incentive Stock Option Agreement under Tokheim Corporation Management Option Plan, dated as of October 20, 2000, among Tokheim Corporation and Douglas K. Pinner. 27.1 Financial Data Schedule. b. Reports on Form 8-K The Company filed a current report on Form 8-K on September 11, 2000 relating to the filing of a Joint Prepackaged Plan of Reorganization for the Company and its U.S. subsidiaries pursuant to chapter 11 of the United States Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware. The Company filed a current report on Form 8-K on October 16, 2000 relating to the confirmation of the Joint Prepackaged Plan of Reorganization for the Company and its U.S. subsidiaries pursuant to chapter 11 of the United States Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. TOKHEIM CORPORATION Date: October 27, 2000 /s/ DOUGLAS K. PINNER --------------------- Chairman, President and Chief Executive Officer Date: October 27, 2000 /s/ ROBERT L. MACDONALD ----------------------- Executive Vice-President, Finance and Chief Financial Officer EXHIBIT INDEX 3.2 Amended and Restated Articles of Incorporation of Tokheim Corporation, as filed with the Indiana Secretary of State as of October 20, 2000. 3.4 Amended and Restated Bylaws of Tokheim Corporation, as amended and restated as of October 20, 2000. 4.26 Post-Confirmation Credit Agreement, dated as of October 20, 2000, among Tokheim Corporation, various subsidiaries thereof as Borrowers, various financial institutions, AmSouth Bank, as Documentation Agent, and ABN AMRO Bank N.V., as Administrative Agent. 4.27 Series A Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and the holders of Series A Warrant Certificates. 4.28 Series B Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and Computershare Investor Services, LLC, as Warrant Agent. 4.29 Series C Warrant Agreement, dated as of October 20, 2000, among Tokheim Corporation and Computershare Investor Services, LLC, as Warrant Agent. 4.30 Registration Rights Agreement, dated as of October 20, 2000, among Tokheim Corporation and the Holders of Stock to be listed on Schedule 1. 10.15 Tokheim Corporation Management Option Plan. 10.16 Form of Incentive Stock Option Agreement under Tokheim Corporation Management Option Plan. 10.17 Incentive Stock Option Agreement under Tokheim Corporation Management Option Plan, dated as of October 20, 2000, among Tokheim Corporation and Douglas K. Pinner. 27.1 Financial Data Schedule EX-3 2 0002.txt EXHIBIT 3.2 - AMENDED AND RESTATED ARTICLES OF INCORPORATION Exhibit 3.2 AMENDED AND RESTATED ARTICLES OF INCORPORATION OF TOKHEIM CORPORATION ----------------------- Tokheim Corporation (hereinafter referred to as the "Corporation"), having duly elected to be governed by IC 23-1-18 through IC 23-1-54 (except for IC 23-1-18-3, IC 23-1-21 and IC 23-1-53-3) effective April 10, 1986, and desiring to amend and restate its Articles of Incorporation effective October 20, 2000, the date of filing with the office of the Indiana Secretary of State, pursuant to the provisions of the Indiana Business Corporation Law (hereinafter referred to as the "Corporation Law"), submits the following Restated Articles of Incorporation: ARTICLE I Name The name of the Corporation is Tokheim Corporation. ARTICLE II Purposes and Powers Section 2.1 Purposes of the Corporation. The purposes for which the Corporation is formed are (a) to engage in the general business of manufacturing and selling any and all devices, appliances and/or articles of every kind and description, for whatever purpose or use and of whatever material or substance made, and to carry on such activities of every kind or nature as may be allied or incidental to such general business and (b) to engage in the transaction of any or all lawful business for which corporations may now or hereafter be incorporated under the Corporation Law. Section 2.2 Powers of the Corporation. The Corporation shall have (a) all powers now or hereafter authorized by or vested in corporations pursuant to the provisions of the Corporation Law, (b) all powers now or hereafter vested in corporations by common law or any other statute or act and (c) all powers authorized by or vested in the Corporation by the provisions of these Restated Articles of Incorporation or by the provisions of its Restated Bylaws as from time to time in effect. ARTICLE III Term of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Registered Office and Agent The street address of the Corporation's registered office at the time of adoption of these Restated Articles of Incorporation is 10501 Corporate Drive, Fort Wayne, Indiana 46845 and the name of its Resident Agent at such office at the time of adoption of these Restated Articles of Incorporation is Norman L. Roelke. ARTICLE V Shares Section 5.1 Authorized Classes and Number of Shares. The total number of shares which the Corporation has authority to issue shall be 35,000,000 shares, consisting of 30,000,000 common shares (the "Common Shares") and 5,000,000 special shares (the "Special Shares"). The Corporation's Common Shares do not have any par or stated value, except that, solely for the purpose of any statute or regulation imposing any tax or fee based upon the capitalization of the Corporation, each of the Corporation's Common Shares shall be deemed to have a par value of $1.00 per share. Section 5.2 General Terms of All Shares. The Corporation shall have the power to acquire (by purchase, redemption or otherwise), hold, own, pledge, sell, transfer, assign, reissue, cancel or otherwise dispose of the shares of the Corporation in the manner and to the extent now or hereafter permitted by the laws of the State of Indiana (but such power shall not imply an obligation on the part of the owner or holder of any share to sell or otherwise transfer such share to the Corporation), including the power to purchase, redeem or otherwise acquire the Corporation's own shares, directly or indirectly, and without pro rata treatment of the owners or holders of any class or series of shares, unless, after giving effect thereto, the Corporation would not be able to pay its debts as they become due in the usual course of business or the Corporation's total assets would be less than its total liabilities (and without regard to any amounts that would be needed, if the Corporation were to be dissolved at the time of the purchase, redemption or other acquisition, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those of the holders of the shares of the Corporation being purchased, redeemed or otherwise acquired, unless otherwise expressly provided with respect to a series of Special Shares in the provisions of these Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 5.5 hereof describing the terms of such series). Except to the extent otherwise provided for herein, shares of the Corporation purchased, redeemed or otherwise acquired by it shall constitute authorized but unissued shares, unless prior to any such purchase, redemption or other acquisition, or within thirty (30) days thereafter, the Board of Directors adopts a resolution providing that such shares constitute authorized and issued but not outstanding shares. The Board of Directors of the Corporation may dispose of, issue and sell shares in accordance with, and in such amounts as may be permitted by, the laws of the State of Indiana and the provisions of these Restated Articles of Incorporation and for such consideration, at such price or prices, at such time or times and upon such terms and conditions (including the privilege of selectively repurchasing the same) as the Board of Directors of the Corporation shall determine, without the authorization or approval by any shareholders of the Corporation. Shares may be disposed of, issued and sold to such persons, firms or corporations as the Board of Directors may determine, without any preemptive or other right on the part of the owners or holders of other shares of the Corporation of any class or kind to acquire such shares by reason of their ownership of such other shares. When the Corporation receives the consideration specified in a subscription agreement entered into before incorporation, or for which the Board of Directors authorized the issuance of shares, as the case may be, the shares issued therefor shall be fully paid and nonassessable. The Corporation shall have the power to declare and pay dividends or other distributions upon the issued and outstanding shares of the Corporation, subject to the limitation that a dividend or other distribution may not be made if, after giving it effect, the Corporation would not be able to pay its debts as they become due in the usual course of business or the Corporation's total assets would be less than its total liabilities (and without regard to any amounts that would be needed, if the Corporation were to be dissolved at the time of the dividend or other distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those of the holders of shares receiving the dividend or other distribution, unless otherwise expressly provided with respect to a series of Special Shares in the provisions of these Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 5.5 hereof describing the terms of such series). The Corporation shall have the power to issue shares of one class or series as a share dividend or other distribution in respect of that class or series or one or more other classes or series. Pursuant to Section 1123(a)(6) of title 11 of the United States Bankruptcy Code, as now in effect or hereafter amended (the "Bankruptcy Code"), the Corporation is not authorized to issue any nonvoting Common Stock, but only to the extent required by Section 1123(a)(6) of the Bankruptcy Code. Section 5.3 Voting Rights of Shares. (a) Common Shares. Except as otherwise provided by the Corporation Law and subject to such shareholder disclosure and recognition procedures (which may include voting prohibition sanctions) as the Corporation may by action of its Board of Directors establish, the Common Shares have unlimited voting rights and each outstanding Common Share shall, when validly issued by the Corporation, entitle the record holder thereof to one vote at all shareholders' meetings on all matters submitted to a vote of the shareholders of the Corporation. (b) Special Shares. Except as required by the Corporation Law or by the provisions of these Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 5.5 hereof describing the terms of Special Shares or a series thereof, the holders of Special Shares shall have no voting rights or powers. Special Shares shall, when validly issued by the Corporation, entitle the record holder thereof to vote as and on such matters, but only as and on such matters, as the holders thereof are entitled to vote under the Corporation Law or under the provisions of these Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 5.5 hereof describing the terms of Special Shares or a series thereof (which provisions may provide for special, conditional, limited or unlimited voting rights, including multiple or fractional votes per share, or for no right to vote, except to the extent required by the Corporation Law) and subject to such shareholder disclosure and recognition procedures (which may include voting prohibition sanctions) as the Corporation may by action of the Board of Directors establish. Section 5.4 Other Terms of Common Shares. The Common Shares shall be equal in every respect insofar as their relationship to the Corporation is concerned, but such equality of rights shall not imply equality of treatment as to redemption or other acquisition of shares by the Corporation. Subject to the rights of the holders of any outstanding Special Shares issued under Section 5.5 hereof, the holders of Common Shares shall be entitled to share ratably in such dividends or other distributions (other than purchases, redemptions or other acquisitions of shares by the Corporation), if any, as are declared and paid from time to time on the Common Shares at the discretion of the Board of Directors. In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, after payment shall have been made to the holders of the Special Shares of the full amount to which they shall be entitled under this Article V, the holders of Common Shares shall be entitled, to the exclusion of the holders of the Special Shares of any and all series, to share, ratably according to the number of shares of Common Shares held by them, in all remaining assets of the Corporation available for distribution to its shareholders. Section 5.5 Other Terms of Special Shares. (a) Special Shares may be issued from to time in one or more series, each such series to have such distinctive designation and such preferences, limitations and relative voting and other rights as shall be set forth in these Restated Articles of Incorporation. Subject to the requirements of the Corporation Law and subject to all other provisions of these Restated Articles of Incorporation, the Board of Directors of the Corporation may create one or more series of Special Shares and may determine the preferences, limitations and relative voting and other rights of one or more series of Special Shares before the issuance of any shares of that series by the adoption of an amendment to the Restated Articles of Incorporation that specifies the terms of the series of Special Shares. All shares of a series of Special Shares must have preferences, limitations and relative voting and other rights identical with those of other shares of the same series and, if the description of the series set forth in these Restated Articles of Incorporation so provides, no series of Special Shares need have preferences, limitations or relative voting or other rights identical with those of any other series of Special Shares. Before issuing any shares of a series of Special Shares (other than the Special Shares provided for in Articles X and XI hereof), the Board of Directors shall adopt an amendment to these Restated Articles of Incorporation, which shall be effective without any shareholder approval or other action that sets forth the preferences, limitations and relative voting and other rights of the series, and authority is hereby expressly vested in the Board of Directors, by such amendment: (i) To fix the distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased or decreased (but not below the number of shares thereof then outstanding) from time to time by action of the Board of Directors; (ii) To fix the voting rights of such series, which may consist of special, conditional, limited or unlimited voting rights, including multiple or fractional votes per share, or no right to vote (except to the extent required by the Corporation Law); (iii) To fix the dividend or distribution rights of such series and the manner of calculating the amount and time for payment of dividends or distributions, including, but not limited to: (A) the dividend rate, if any, of such series; (B) any limitations, restrictions or conditions on the payment of dividends or other distributions, including whether dividends or other distributions shall be noncumulative or cumulative or partially cumulative and, if so, from which date or dates; (C) the relative rights of priority, if any, of payment of dividends or other distributions on shares of that series in relation to Common Shares and shares of any other series of Special Shares; and (D) the form of dividends or other distributions, which may be payable at the option of the Corporation, to the shareholder or another person (and in such case to prescribe the terms and conditions of exercising such option), or upon the occurrence of a designated event in cash, indebtedness, stock or other securities or other property, or in any combination thereof, and to make provisions, in the case of dividends or other distributions payable in stock or other securities, for adjustment of the dividend or distribution rate in such events as the Board of Directors shall determine; (iv) To fix the price or prices at which, and the terms and conditions on which, the shares of such series may be redeemed or converted, which may be: (A) at the option of the Corporation, the shareholder or another person or upon the occurrence of a designated event; (B) for cash, indebtedness, securities, or other property or any combination thereof; and (C) in a designated amount or in an amount determined in accordance with a designated formula or by reference to extrinsic data or events; (v) To fix the amount or amounts payable upon the shares of such series in the event of any liquidation, dissolution or winding up of the Corporation and the relative rights of priority, if any, of payment upon shares of such series in relation to Common Shares and shares of any other series of Special Shares; and to determine whether or not any such preferential rights upon dissolution need be considered in determining whether or not the Corporation may make dividends, repurchases or other distributions; (vi) To determine whether or not the shares of such series shall be entitled to the benefit of a sinking fund to be applied to the purchase or redemption of such series and, if so entitled, the amount of such fund and the manner of its application; (vii) To determine whether or not the issue of any additional shares of such series or of any other series in addition to such series shall be subject to restrictions in addition to restrictions, if any, on the issue of additional shares imposed in the provisions of these Restated Articles of Incorporation fixing the terms of any outstanding series of Special Shares theretofore issued pursuant to this Section 5.5 and, if subject to additional restrictions, the extent of such additional restrictions; and (viii) Generally to fix the other preferences or rights, and any qualifications, limitations or restrictions of such preferences or rights, of such series to the full extent permitted by the Corporation Law; provided, however, that no such preferences, rights, qualifications, limitations or restrictions shall be in conflict with these Restated Articles of Incorporation or any amendment hereof. (b) Except as otherwise provided in Articles X and XI hereof, Special Shares of any series that have been redeemed (whether through the operation of a sinking fund or otherwise) or purchased by the Corporation, or which, if convertible, have been converted into shares of the Corporation of any other class or series, may be reissued as a part of such series or of any other series of Special Shares, subject to such limitations (if any) as may be fixed by the Board of Directors with respect to such series of Special Shares in accordance with subsection (a) of this Section 5.5. ARTICLE VI Directors Section 6.1 Number. The Board of Directors shall not be less than seven (7) nor more than fifteen (15) and, at the time of adoption of these Restated Articles of Incorporation is composed of seven (7) members, and may be changed from time to time by amendment to these Restated Articles of Incorporation, or as otherwise provided in these Restated Articles of Incorporation. On the Effective Date, as defined in the Company's Joint Prepackaged Plan of Reorganization (the "Effective Date") as confirmed by the United States Bankruptcy Court for the District of Delaware (the "Plan of Reorganization), the Board of Directors of the Corporation shall include Douglas K. Pinner, four (4) temporary directors (the "Temporary Directors") designated by an ad hoc committee of the holders of the Corporation's Senior Subordinated Notes and Junior Subordinated Notes (the "Bondholder Committee") and two (2) directors designated by the holders of the Corporation's Series A Senior Preferred Stock (the "Series A Preferred Stock"), as described in Article XI hereof. The number of directors shall be automatically increased to nine (9) when the Temporary Directors designate six (6) new directors. The four (4) Temporary Directors shall resign at such time. The Board of Directors shall be divided into three (3) groups (with each group containing one-third (1/3) of the total members, as near as may be) whose terms of office expire at different times, as provided in the By-Laws. Notwithstanding the first sentence of this Section 6.1, any amendment to these Restated Articles of Incorporation that would affect any increase in the number of Directors over such number as then in effect or any elimination or modification of the groups or terms of office of the Directors as the Articles of Incorporation then in effect may provide, shall also be approved by the affirmative vote of a majority of the entire number of Directors of the Corporation who then qualify as Continuing Directors with respect to all Related Persons (as such terms are defined for purposes of Article VIII hereof). Section 6.2 Qualifications. Directors need not be shareholders of the Corporation or residents of this or any other state in the United States. Section 6.3 Vacancies. Vacancies occurring in the Board of Directors shall be filled in the manner provided in these Restated Articles of Incorporation, including Section 6.6 and Article XI, or in the By-Laws (or, if these Restated Articles of Incorporation or the Restated By-Laws do not provide for the filling of vacancies, in the manner provided by the Corporation Law). To the extent not otherwise provided for, vacancies shall be filled by vote of the shareholders or holders of Special Shares, as appropriate, at a special meeting called for that purpose or at the next annual meeting of shareholders. Section 6.4 Liability of Directors. A Director's responsibility to the Corporation shall be limited to discharging his duties as a Director, including his duties as a member of any Committee of the Board of Directors upon which he may serve, in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the Director reasonably believes to be in the best interests of the Corporation, all based on the facts then known to the Director. In discharging his duties, a Director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: (a) One (1) or more officers or employees of the Corporation whom the Director reasonably believes to be reliable and competent in the matters presented; (b) Legal counsel, public accountants or other persons as to matters the Director reasonably believes are within such person's professional or expert competence; or (c) A Committee of the Board of which the Director is not a member if the Director reasonably believes the Committee merits confidence; but a Director is not acting in good faith if the Director has knowledge concerning the matter in question that makes reliance otherwise permitted by this Section 6.4 unwarranted. A Director may, in considering the best interests of the Corporation, consider the effects of any action on shareholders, employees, suppliers and customers of the Corporation, and communities in which offices or other facilities of the Corporation are located, and any other factors the Director considers pertinent. A Director shall not be liable for any action taken as a Director, or any failure to take any action, unless (a) the Director has breached or failed to perform the duties of the Director's office in compliance with this Section 6.4, and (b) the breach or failure to perform constitutes willful misconduct or recklessness. Section 6.5 Removal of Directors. Except as otherwise provided herein, any or all of the members of the Board of Directors may be removed, with or without cause, only at a meeting of the shareholders called for that purpose, by the affirmative vote of the holders of outstanding shares representing at least seventy-five percent (75%) of all the votes then entitled to be cast at an election of Directors. Section 6.6 Election of Directors by Holders of Special Shares. The holders of one (1) or more series of Special Shares may be entitled to elect a specified number of Directors, but only to the extent and subject to limitations as may be set forth in the provisions of these Restated Articles of Incorporation as adopted and as amended by the Board of Directors pursuant to Section 5.5 hereof describing the terms of the series of Special Shares. ARTICLE VII Provisions for Regulation of Business and Conduct of Affairs of Corporation Section 7.1 Meetings of Shareholders. Meetings of the shareholders of the Corporation shall be held at such time and at such place, either within or without the State of Indiana, as may be stated in or fixed in accordance with the By-Laws of the Corporation and specified in the respective notices or waivers of notice of any such meetings. Section 7.2 Special Meetings of Shareholders. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by the Corporation Law, may be called at any time by the Board of Directors or the person or persons authorized to do so by the By-Laws and shall be called by the Board of Directors if the Secretary of the Corporation receives one (1) or more written, dated and signed demands for a special meeting, describing in reasonable detail the purpose or purposes for which it is to be held, from the holders of shares representing at least twenty-five percent (25%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. If the Secretary receives one (1) or more proper written demands for a special meeting of shareholders, the Board of Directors may set a record date for determining shareholders entitled to make such demand. Section 7.3 Meetings of Directors. Meetings of the Board of Directors of the Corporation shall be held at such place, either within or without the State of Indiana, as may be authorized by the By-Laws and specified in the respective notices or waivers of notice of any such meetings or otherwise specified by the Board of Directors. Unless the By-Laws provide otherwise (a) regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting and (b) the notice for a special meeting need not describe the purpose or purposes of the special meeting. Section 7.4 Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or shareholders, or of any committee of such Board, may be taken without a meeting, if the action is taken by all members of the Board or all shareholders entitled to vote on the action, or by all members of such committee, as the case may be. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each Director, or all the shareholders entitled to vote on the action, or by each member of such committee, as the case may be, and, in the case of action by the Board of Directors or a committee thereof, included in the minutes or filed with the corporate records reflecting the action taken or, in the case of action by the shareholders, delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Action taken under this Section 7.4 is effective when the last director, shareholder or committee member, as the case may be, signs the consent, unless the consent specifies a different prior or subsequent effective date, in which case the action is effective on or as of the specified date. Such consent shall have the same effect as a unanimous vote of all members of the Board, or all shareholders, or all members of the committee, as the case may be, and may be described as such in any document. Section 7.5 Bylaws. The Board of Directors shall have the exclusive power to make, alter, amend or repeal, or to waive provisions of, the Restated Bylaws of the Corporation by the affirmative vote of a majority of the entire number of Directors at the time, except as provided by the Corporation Law. All provisions for the regulation of the business and management of the affairs of the Corporation not stated in these Restated Articles of Incorporation shall be stated in the Restated Bylaws. The Board of Directors may adopt Emergency Bylaws of the Corporation and shall have the exclusive power (except as may otherwise be provided therein) to make, alter, amend or repeal, or to waive provisions of, the Emergency Bylaws by the affirmative vote of both (a) a majority of the entire number of Directors at the time and (b) a majority of the entire number of Directors who then qualify as Continuing Directors with respect to all Related Persons (as such terms are defined for purposes of Article VIII hereof). Section 7.6 Interest of Directors. (a) A conflict of interest transaction is a transaction with the Corporation in which a Director of the Corporation has a direct or indirect interest. A conflict of interest transaction is not voidable by the Corporation solely because of the Director's interest in the transaction if any one (1) of the following is true: (i) The material facts of the transaction and the Director's interest were disclosed or known to the Board of Directors or a Committee of the Board of Directors and the Board of Directors or Committee authorized, approved, or ratified the transaction. (ii) The material facts of the transaction and the Director's interest were disclosed or known to the shareholders entitled to vote and they authorized, approved, or ratified the transaction. (iii) The transaction was fair to the Corporation. (b) For purposes of this Section 7.6, a Director of the Corporation has an indirect interest in a transaction if: (i) Another entity in which the Director has material financial interest or in which the Director is a general partner is party to the transaction; or (ii) Another entity of which the Director is a director, officer, or trustee in a party to the transaction and the transaction is, or is required to be, considered by the Board of Directors of the Corporation. (c) For purposes of Section 7.6(a)(i), a conflict of interest transaction is authorized, approved, or ratified if it receives the affirmative vote of a majority of the Directors on the Board of Directors (or on the Committee) who have no direct or indirect interest in the transaction vote to authorize, approve or ratify the transaction, a quorum shall be deemed present for the purpose of taking action under this Section 7.6. The presence of, or a vote cast by, a Director with a direct or indirect interest in the transaction does not affect the validity of any action taken under Section 7.6(a)(i), if the transaction is otherwise authorized, approved or ratified as provided in such subsection. (d) Shares owned by or voted under the control of a Director who has a direct or indirect interest in the transaction, and shares owned by or voted under the control of an entity described in Section 7.6(b), may be counted in a vote of shareholders to determine whether to authorize, approve or ratify a conflict of interest transaction under Section 7.6(a)(ii). Section 7.7 Nonliability of Shareholders. Shareholders of the Corporation are not personally liable for the acts or debts of the Corporation, nor is private property of shareholders subject to the payment of corporate debts. Section 7.8 Indemnification of Officers, Directors and Other Eligible Persons. (a) Every Eligible Person, as a matter of right, shall be indemnified by the Corporation against all Liability and reasonable Expense that may be incurred by such Eligible Person in connection with or resulting from any Claim, (i) if such Eligible Person is Wholly Successful with respect to the Claim, or (ii) if not Wholly Successful, then if such Eligible Person is determined, as provided in either Section 7.8(f) or 7.8(g), with respect to the Claim, or any count, issue or matter of the Claim, to have acted in good faith; and he reasonably believed: (A) in the case of conduct in his official capacity with the Corporation, that his conduct was in its best interests, and (B) in all other cases, that his conduct was at least not opposed to its best interests; and, in the case of any Claim of a criminal nature, he either (A) had reasonable cause to believe his conduct was lawful, or (B) had no reasonable cause to believe his conduct was unlawful. The termination of any Claim, by judgment, order, settlement (whether with or without court approval), or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not be determinative nor create a presumption that an Eligible Person did not meet the standards of conduct set forth in clause (ii) of this subsection (a). The actions of an Eligible Person with respect to an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 shall be deemed to have been taken in what the Eligible Person reasonably believed to be the best interests of the Corporation or at least not opposed to its best interests if the Eligible Person reasonably believed he was acting in conformity with the requirements of such Act or he reasonably believed his actions to be in the interests of the participants in or beneficiaries of the plan. (b) The term "Claim" as used in this Section 7.8 shall include every pending, threatened or completed claim, action, suit or proceeding and all appeals thereof (whether brought by or in the right of this Corporation, any other corporation, partnership, joint venture, trust, enterprise, organization, association, governmental agency, person or otherwise), civil, criminal, administrative or investigative, formal or informal, in which an Eligible Person may become or is threatened to become involved, as a party or otherwise: (i) by reason of his being or having been an Eligible Person or (ii) by reason of any action taken or not taken by him in his capacity as an Eligible Person, whether or not he continued in such capacity at the time such Liability or Expense shall have been incurred, and further whether or not the action taken or not taken antedated the adoption of this Section 7.8. (c) The term "Eligible Person" as used in this Section 7.8 shall mean every person (and the estate, heirs, executors, administrators, and personal representatives of such person) who is or was a Director or officer of the Corporation or a Director or officer of the Corporation who is or was serving at the request of the Corporation as a director, officer, employee, agent or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust employee benefit plan or other organization or entity, whether for profit or not. An Eligible Person shall also be considered to have been serving an employee benefit plan at the request of the Corporation if his duties to the Corporation also imposed duties on, or otherwise involved services by, him to the plan or to participants in or beneficiaries of the plan. (d) The terms "Liability" and "Expense" as used in this Section 7.8 shall include, but shall not be limited to, amounts of judgments, fines or penalties against (including excise taxes assessed with respect to an employee benefit plan), and amounts paid in settlement by or on behalf of, an Eligible Person, attorney fees, accountant fees, investment banker fees, and any other professional fees, disbursements, travel, expert witness fees, and any other expense reasonably incurred in defense of any Claim. (e) The term "Wholly Successful" as used in this Section 7.8 shall mean: (i) Termination of any claim against the Eligible Person in question without a finding of liability against him, or guilt in a criminal Claim against him; (ii) Approval by a court of a settlement of any Claim, with a concurrent approval by the court of indemnification pursuant to this Section 7.8; or (iii) The expiration of the applicable statute of limitations regarding the Claim. (f) Every Eligible Person claiming indemnification hereunder (other than one who has been Wholly Successful with respect to any Claim) shall be entitled to indemnification if a disinterested person or persons selected by the Board of Directors (the "Referee") shall determine that such Eligible Person has met the standards of conduct set forth in Section 7.8(a)(ii). In the event an Eligible Person is found to be entitled to indemnification pursuant to the preceding sentence, the Referee shall also determine the reasonableness of the Eligible Person's Expenses. The Eligible Person claiming indemnification shall, if requested, appear before the Referee, answer questions that the Referee deems relevant and shall be given ample opportunity to present to the Referee evidence upon which he relies for indemnification. The Corporation shall, at the request of the Referee, make available facts, opinions or other evidence in any way relevant to the Referee's determination that are within the possession or control of the Corporation. The Referee shall not incur any liability as a result of his decision. (g) If an Eligible Person claiming indemnification pursuant to Section 7.8(f) is found not to be entitled thereto, or if the Board of Directors fails to select a Referee under Section 7.8(f) within a reasonable amount of time following a written request of an Eligible Person for the selection of a Referee, or if the Referee fails to make a determination under Section 7.8(f) within a reasonable amount of time following the selection of the Referee, the Eligible Person may apply for indemnification with respect to a Claim or any count, issue or matter of a Claim to any court of competent jurisdiction, including a court in which the Claim is pending against the Eligible Person. On receipt of an application, the court, after giving notice to the Corporation, may order indemnification if it determines either that: (i) The Eligible Person is entitled to indemnification with respect to the Claim because such Eligible Person met the standards of conduct set forth in Section 7.8(a)(ii); or (ii) The Eligible Person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the Eligible Person has met the standard of conduct set forth in Section 7.8(a)(ii). If the court determines that the Eligible Person is entitled to indemnification, the court shall also determine the reasonableness of the Eligible Person's Expenses. (h) The rights of indemnification provided in this Section 7.8 shall not be exclusive and shall be in addition to any rights to which any Eligible Person may otherwise be entitled under any statute, agreement, resolution of the Board of Directors of the Corporation or otherwise. Irrespective of the provisions of this Section 7.8, the Board of Directors may, at any time and from time to time: (i) Approve indemnification of any Eligible Person to the full extent permitted by the provisions of applicable law at the time in effect, whether on account of past or future transactions; and (ii) Authorize the Corporation to purchase and maintain insurance on behalf of any Eligible Person against any Liability asserted against him or Liability or Expense incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such Liability or Expense. (i) Expenses incurred by an Eligible Person with respect to any Claim may be advanced by the Corporation (by action of the Board of Directors, whether or not a disinterested quorum exists) prior to the final disposition thereof upon receipt of any undertaking by or on behalf of the recipient to repay such amount unless he is determined to be entitled to indemnification. (j) In the event the Claim is the result of any action taken, any action not taken or any alleged breach of duty or obligation by the Board of Directors related to a proposed or actual tender offer for shares of the Corporation; change in control of the Corporation; merger, business combination or consolidation in which the Corporation is a party; or the election of Directors of the Corporation, the Expense incurred by an Eligible Person with respect to such Claim shall as a matter of right be advanced to the Eligible Person by the Corporation prior to final disposition of such Claim if: (i) The Eligible Person furnishes the Corporation a written affirmation of the Eligible Person's good faith belief that he has met the standard of conduct described in clause (ii) of Section 7.8(a); and (ii) The Eligible Person furnishes the Corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that the Eligible Person did not meet such standard of conduct. (k) The indemnification provisions of this Section 7.8 shall be deemed to be a contract between the Corporation and each Eligible Person. (l) The provisions of this Section 7.8 shall be applicable to all acts or failures to act occurring prior to the adoption of this Section 7.8 or during the term of this Section 7.8 irrespective of when the Claim relating to the occurrence is made or commenced. (m) The Board of Directors shall have power on behalf of the Corporation to grant indemnification in a manner consistent with this Section 7.8 to any person other than an Eligible Person to such extent as the Board of Directors may from time to time and at any time determine. (n) If any provision of this Section 7.8 is adjudged to be beyond the powers of the Corporation under the Indiana Business Corporation Law, as amended, or any other applicable law, then such identification shall nevertheless remain available, but shall be limited, amended or construed only to the extent necessary to be within the powers of the Corporation under the Indiana Business Corporation Law, as amended, or any other applicable law, and such indemnification so limited, amended or construed shall be available and provided pursuant to this Section 7.8. ARTICLE VIII Approval of Business Combinations Section 8.1 Supermajority Vote. Except as provided in Section 8.2 hereof, neither the Corporation nor its Subsidiaries, if any, shall become a party to any Business Combination with a Related Person without the prior affirmative vote at a meeting of the Corporation's shareholders: (a) Of not less than seventy-five percent (75%) of all the votes entitled to be cast by the holders of the outstanding shares of all classes of Voting Stock of the Corporation considered for purposes of this Article VIII as a single class, and (b) Of an Independent Majority of Shareholders. Such favorable votes shall be in addition to any shareholder vote which would be required without reference to this Section 8.1 and shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified by law or elsewhere in these Restated Articles of Incorporation or the Restated By-Laws of the Corporation or otherwise. Section 8.2 Exceptions. The provisions of Section 8.1 hereof shall not apply to a Business Combination if: (a) The Continuing Directors of the Corporation by not less than a seventy-five percent (75%) vote: (i) Have expressly approved a memorandum of understanding with the Related Person with respect to the Business Combination prior to the time that the Related Person became a Related Person and the Business Combination is effected on substantially the same terms and conditions as are provided by the memorandum of understanding; or (ii) Have otherwise approved the Business Combination (this provision is incapable of satisfaction unless there is at least one Continuing Director); or (b) The Business Combination is solely between the Corporation and another corporation, one hundred percent (100%) of the Voting Stock of which is owned directly or indirectly by the Corporation. Section 8.3 Definitions. For purposes of this Article VIII: (a) A "Business Combination" means: (i) The sale, exchange, lease, transfer or other disposition to or with a Related Person or any Affiliate or Associate of such Related Person by the Corporation or any Subsidiaries (in a single transaction or a Series of Related Transactions) of all or substantially all, or any Substantial Part, of its or their assets or business (including, without limitation, securities issued by a Subsidiary, if any); (ii) The purchase, exchange, lease or other acquisition by the Corporation or any Subsidiaries (in a single transaction or a Series of Related Transactions) of all or substantially all, or any Substantial Part, of the assets or business of a Related Person or any Affiliate or Associate of such Related Person; (iii) Any merger or consolidation of the Corporation or any Subsidiary thereof into or with a Related Person or any Affiliate or Associate of such Related Person or into or with another Person which, after such merger or consolidation, would be an Affiliate or an Associate of a Related Person, in each case irrespective of which Person is the surviving entity in such merger or consolidation; (iv) Any reclassification of securities, recapitalization or other transaction (other than a redemption in accordance with the terms of the security redeemed) which has the effect, directly or indirectly, of increasing the proportionate amount of shares of Voting Stock of the Corporation or any Subsidiary thereof which are Beneficially Owned by a Related Person, or any partial or complete liquidation, spin-off or split-up of the Corporation or any Subsidiary thereof; provided, however, that this Section 8.3(a)(iv) shall not relate to any transaction that has been approved by a majority of the Continuing Directors; or (v) The acquisition upon the issuance thereof of Beneficial Ownership by a Related Person of shares of Voting Stock or securities convertible into shares of Voting Stock or any voting securities or securities convertible into voting securities of any Subsidiary of the Corporation, or the acquisition upon the issuance thereof of Beneficial Ownership by a Related Person of any rights, warrants or options to acquire any of the foregoing or any combination of the foregoing shares of Voting Stock or voting securities of a Subsidiary, if any. (b) A "Series of Related Transactions" shall be deemed to include not only a series of transactions with the same Related Person but also a series of separate transactions with a Related Person or any Affiliate or Associate of such Related Person. (c) A "Person" shall mean any individual, firm, corporation or other entity and any partnership, syndicate or other group. (d) "Related Person" shall mean any Person (other than the Corporation or any Subsidiary of the Corporation or the Continuing Directors, singly or as a group) who or that at any time described in the last sentence of this first paragraph of this subsection (d): (i) Is the Beneficial Owner, directly or indirectly, of more than ten percent (10%) of the voting power of the outstanding shares of Voting Stock and who has not been the Beneficial Owner, directly or indirectly, of more than ten percent (10%) of the voting power of the outstanding shares of Voting Stock for a continuous period of two years prior to the date in question; or (ii) Is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question (but not continuously during such two-year period) was the Beneficial Owner, directly or indirectly, of ten percent (10%) or more of the voting power of the then outstanding shares of Voting Stock; or (iii) Is an assignee of or has otherwise succeeded to any shares of the Voting Stock which were at any time within the two-year period immediately prior to the date in question beneficially owned by any Related Person, if such assignment or succession shall have occurred within the meaning of the Securities Act of 1933, as amended. A Related Person shall be deemed to have acquired a share of the Corporation at the time when such Related Person became the Beneficial Owner thereof. For the purposes of determining whether a Person is the Beneficial Owner of ten percent (10%) or more of the voting power of the then outstanding Voting Stock, the outstanding Voting Stock shall be deemed to include any Voting Stock that may be issuable to such Person pursuant to a right to acquire such Voting Stock and that is therefore deemed to be Beneficially Owned by such Person pursuant to Section 8.3(e)(ii)(A). A Person who is a Related Person at: (i) The time any definitive agreement relating to a Business Combination is entered into; (ii) The record date for the determination of shareholders entitled to notice of and to vote on a Business Combination; or (iii) The time immediately prior to the consummation of a Business Combination, shall be deemed a Related Person. A Related Person shall not include the Board of Directors of the Corporation acting as a group. In addition, a Related Person shall not include any Person who possesses more than ten percent (10%) of the voting power of the outstanding shares of Voting Stock of the Corporation at the time of filing these Restated Articles of Incorporation. (e) A Person shall be a "Beneficial Owner" of any shares of Voting Stock: (i) Which such Person or any of its Affiliates or Associates beneficially owns, directly or indirectly; or (ii) Which such Person or any of its Affiliates or Associates has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (B) the right to vote pursuant to any agreement, arrangement or understanding; or (iii) Which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. (f) An "Affiliate" of, or a person Affiliated with, a specific Person, means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. (g) The term "Associate" used to indicate a relationship with any Person, means: (i) Any corporation or organization (other than this Corporation or a majority-owned Subsidiary or this Corporation) of which such Person is an officer or partner or is, directly or indirectly, the Beneficial Owner of five percent (5%) or more of any class of equity securities; (ii) Any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; (iii) Any relative or spouse of such Person, or any relative of such spouse, who has the same home as such Person; or (iv) Any investment company registered under the Investment Company Act of 1940, as amended, for which such Person or any Affiliate of such Person serves as investment advisor. (h) "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Related Person set forth in Section 8.3(d) hereof, the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (i) "Continuing Director" means any member of the Board of Directors of the Corporation (the "Board") who is not associated with the Related Person and was a member of the Board prior to the time that the Related Person became a Related Person, and any successor of a Continuing Director who is not associated with the Related Person and is recommended to succeed a Continuing Director by not less than two-thirds of the Continuing Directors then on the Board. (j) "Independent Majority of Shareholders" shall mean the holders of the outstanding shares of Voting Stock representing a majority of all the votes entitled to be cast by all shares of Voting Stock other than shares Beneficially Owned or controlled, directly or indirectly, by a Related Person. (k) "Voting Stock" shall mean all outstanding shares of capital stock of the Corporation or another corporation entitled to vote generally on the election of Directors, and each reference to a proportion of shares of Voting Stock shall refer to such proportion of the votes entitled to be cast by such shares. The Series A Preferred Stock shall not be included as "Voting Stock" for purposes hereof but shall retain the special voting rights contained in Article XI hereof. (l) "Substantial Part" means properties and assets involved in any single transaction or a Series of Related Transactions having an aggregate fair market value of more than ten percent (10%) of the total consolidated assets of the Person in question as determined immediately prior to such transaction or Series of Related Transactions. Section 8.4 Director Determinations. A majority of the Continuing Directors shall have the power to determine for the purposes of this Article VIII, on the basis of information known to them: (a) The number of shares of Voting Stock of which any Person is the Beneficial Owner; (b) Whether a Person is an Affiliate or Associate of another; (c) Whether a Person has an agreement, arrangement or understanding with another as to the matters referred to in the definition of "Beneficial Owner"; (d) Whether the assets subject to any Business Combination constitute a Substantial Part; (e) Whether two or more transactions constitute a Series of Related Transactions; and (f) Such other matters with respect to which a determination is required under this Article VIII. Section 8.5 Nonmonetary Factors in Acquisition Proposals. In connection with the exercise of its judgment in determining what is in the best interests of the Corporation and its shareholders when evaluating a proposal by another person or persons to acquire some material part or all of the business or properties of the Corporation (whether by merger, consolidation, purchase of assets, stock reclassification or recapitalization, spin-off, liquidation or otherwise) or to acquire some material part or all of the stock of the Corporation (whether by a tender or exchange offer or some other means), the Board of Directors of the Corporation shall, in addition to considering the adequacy of the consideration to be paid in connection with any such transaction, consider all of the following factors and any other factors that it deems relevant: (a) The social and economic effects of the transaction on the Corporation and its subsidiaries and their employees, customers, creditors and communities in which the Corporation and its subsidiaries operate or are located; (b) The business and financial condition and earnings prospects of the acquiring person or persons, including, but not limited to, debt service and other existing or likely financial obligations of the acquiring person or persons and their affiliates and associates, and the possible effect of such conditions upon the Corporation and its subsidiaries and the communities in which the Corporation and its subsidiaries operate or are located; and (c) The competence, experience, and integrity of the acquiring person or persons and its or their management and affiliates and associates. Section 8.6 Amendment of Article VIII or Certain Other Provisions. Any amendment, change or repeal of this Article VIII, or of Sections 6.1, 6.5, 7.2, 7.5, 9.2 or 9.3, or any other amendment of these Restated Articles of Incorporation which would have the effect of modifying or permitting circumvention of this Article VIII or such other provisions of these Restated Articles of Incorporation, shall require the affirmative vote, at a meeting of shareholders of the Corporation: (a) Of at least seventy-five percent (75%) of the votes entitled to be cast by the holders of the outstanding shares of all classes of Voting Stock of the Corporation considered for purposes of this Article VIII as a single class; and (b) Of an Independent Majority of Shareholders; provided, however, that this Section 8.6 shall not apply to, and such vote shall not be required for, any such amendment, change or repeal recommended to shareholders by the favorable vote of not less than seventy-five percent (75%) of the Directors who then qualify as Continuing Directors with respect to all Related Persons and any such amendment, change or repeal so recommended shall require only the vote, if any, required under the applicable provisions of the Corporation Law. Section 8.7 Fiduciary Obligations Unaffected. Nothing in this Article VIII shall be construed to relieve any Related Person from any fiduciary duty imposed by law. Section 8.8 Article VIII Nonexclusive. The provisions of this Article VIII are nonexclusive and are in addition to any other provisions of law or these Restated Articles of Incorporation or the By-Laws of the Corporation relating to Business Combinations, Related Persons or similar matters. ARTICLE IX Miscellaneous Provisions Section 9.1 Amendment or Repeal. Except as otherwise expressly provided for in these Restated Articles of Incorporation, the Corporation shall be deemed, for all purposes, to have reserved the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation to the extent and in the manner now or hereafter permitted or prescribed by statute, and all rights herein conferred upon shareholders are granted subject to such reservation. Section 9.2 Redemption of Shares Acquired in Control Share Acquisitions. If and whenever the provisions of IC 23-1-42 apply to the Corporation, it is authorized to redeem its securities pursuant to IC 23-1-42-10. Section 9.3 Election to be Subject to Five-Year Freeze Statute. Unless the Corporation's By-Laws provide that it elects not be governed by IC 23-1-43, the Corporation elects to have the provisions of IC 23-1-43 apply to it regardless of whether or not it has a class of voting securities registered with the Securities and Exchange Commission under Section 12 of the Securities Exchange Act of 1934. Section 9.4 Captions. The captions of the Articles and Sections of these Restated Articles of Incorporation have been inserted for convenience of reference only and do not in any way define, limit, construe or describe the scope or intent of any Article or Section hereof. ARTICLE X Terms of ESOP Convertible Voting Preferred Stock The designation, preferences, limitations and relative voting and other rights of the first series of the authorized Special Shares of the Corporation in addition to those set forth elsewhere in these Restated Articles of Incorporation which are applicable to all series of Special Shares are hereby fixed as follows: Section 10.1 Designation and Amount; Special Purpose Restricted Transfer Issue. (a) The shares of such series shall be designated as "ESOP Convertible Voting Preferred Stock" ("ESOP Preferred Stock") and the number of shares constituting such series shall be 1,700,000. (b) Shares of ESOP Preferred Stock shall be issued only to the Bank of New York, as trustee (the "Trustee") of the Retirement Savings Plan for Employees of Tokheim Corporation and Subsidiaries (the "Plan"). All references to the holder of shares of ESOP Preferred Stock shall mean the Trustee or any successor trustee under the Plan. In the event of any transfer of record ownership of shares of ESOP Preferred Stock to any person other than any successor trustee under the Plan, the shares of ESOP Preferred Stock so transferred, upon such transfer and without any further action by the Corporation or the holder thereof, shall be automatically converted into shares of Common Shares on the terms otherwise provided for the conversion of shares of ESOP Preferred Stock into shares of Common Shares pursuant to Section 10.5 hereof and no such transferee shall have any of the preferences, limitations and relative voting and other rights, ascribed to shares of ESOP Preferred Stock hereunder but, rather, only the powers and rights pertaining to the Common Shares into which such shares of ESOP Preferred Stock shall be so converted. In the event of such a conversion, the transferee of the shares of ESOP Preferred Stock shall be treated for all purposes as the record holder of the shares of Common Shares into which such shares of ESOP Preferred Stock have been automatically converted as of the date of such transfer. Certificates representing shares of ESOP Preferred Stock shall bear a legend to reflect the foregoing provisions. Notwithstanding the foregoing provisions of this paragraph (b) of Section 10.1, shares of ESOP Preferred Stock: (i) May be converted into shares of Common Shares as provided by Section 10.5 hereof and the shares of Common Shares issued upon such conversion may be transferred by the holder thereof as permitted by law; and (ii) Shall be redeemable by the Corporation upon the terms and conditions provided by Sections 10.6, 10.7 and 10.8 hereof. Section 10.2 Dividends and Distributions. (a) Subject to the provisions for adjustment hereinafter set forth, the holders of shares of ESOP Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cash dividends ("Preferred Dividends") in an amount per share equal to $1.9375 per share per annum, and no more, payable quarterly in arrears, one-fourth on the first day of March, June, September, and December of each year (each a "Dividend Payment Date") commencing on September 1, 1989, to holders of record at the start of business on such Dividend Payment Date. In the event that any Dividend Payment shall fall on any day other than a "Business Day" (as hereinafter defined), the dividend payment due on such Dividend Payment Date shall be paid on the Business Day immediately preceding such Dividend Payment Date. Preferred Dividends shall begin to accrue on outstanding shares of ESOP Preferred Stock from the date of issuance of such shares of ESOP Preferred Stock. Preferred Dividends shall accrue on a daily basis whether or not the Corporation shall have earnings or surplus at the time, but Preferred Dividends accrued after issuance on the shares of ESOP Preferred Stock for any period less than a full quarterly period between Dividend Payment Dates shall be computed on the basis of a 360-day year of 12 30-day months. Accrued but unpaid Preferred Dividends shall cumulate as of the Dividend Payment Date on which they first become payable, but not interest shall accrue on accumulated but unpaid Preferred Dividends. (b) So long as any shares of ESOP Preferred Stock shall be outstanding, no dividend shall be declared or paid or set apart for payment on any other series of stock ranking on a parity with the ESOP Preferred Stock as to dividends, unless there shall also be or have been declared and paid or set apart for payment on the ESOP Preferred Stock, dividends for all dividend payment periods of the ESOP Preferred Stock ending on or before the Dividend Payment Date of such parity stock, ratably in proportion to the respective amounts of dividends accumulated and unpaid through such dividend period on the ESOP Preferred Stock and accumulated and unpaid on such parity stock through the dividend payment period on such parity stock next preceding such Dividend Payment Date. In the event that full cumulative dividends on the ESOP Preferred Stock have been declared and paid or set apart for payment when due, the Corporation shall not declare or pay or set apart for payment any dividends or make any other distributions on, or make any payment on account of the purchase, redemption or other retirement of any other class of stock or series thereof of the Corporation ranking, as to dividends or as to distributions in the event of a liquidation, dissolution or windup of the Corporation, junior to the ESOP Preferred Stock until full cumulative dividends on the ESOP Preferred Stock shall have been paid or declared and set apart for payment; provided, however, that the foregoing shall not apply to (i) any dividend payable solely in any shares of any stock ranking, as to dividends and as to distributions in the event of a liquidation, dissolution or windup of the Corporation, junior to the ESOP Preferred Stock or (ii) the acquisition of shares of any stock ranking, as to dividends or as to distributions in the event of a liquidation, dissolution or windup of the Corporation, junior to the ESOP Preferred Stock in exchange solely for shares of any other stock ranking, as to dividends and as to distributions in the event of a liquidation, dissolution or windup of the Corporation, junior to the ESOP Preferred Stock. Section 10.3 Voting Rights. The holders of shares of ESOP Preferred Stock shall have the following voting rights: (a) The holders of ESOP Preferred Stock shall be entitled to vote on all matters submitted to a vote of the shareholders of the Corporation, voting together with the holders of Common Shares as one class. The holder of each share of ESOP Preferred Stock shall be entitled to a number of votes equal to the number of shares of Common Shares into which such share of ESOP Preferred Stock could be converted on the record date for determining the shareholders entitled to vote, rounded to the nearest one-one-hundredth (1/100) of a vote; it being understood that whenever the "Conversion Price" (as defined in Section 10.5 hereof) is adjusted as provided in Section 10.9 hereof, the voting rights of the ESOP Preferred Stock shall also be similarly adjusted. (b) Except as otherwise required by law or set forth herein, holders of ESOP Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Shares as set forth herein) for the taking of any corporate action; provided, however, that the vote of at least 66-2/3% of the outstanding shares of ESOP Preferred Stock, voting separately as a series, shall be necessary to adopt any alteration, amendment or repeal of any provision of these Restated Articles of Incorporation of the Corporation, as amended (including any such alteration, amendment or repeal effected by any merger or consolidation in which the Corporation is the surviving or resulting corporation), if such amendment, alteration or repeal would alter or change the preferences, limitations, or relative voting or other rights of the shares of ESOP Preferred Stock so as to affect them adversely. Section 10.4 Liquidation, Dissolution or Windup. (a) Upon any voluntary or involuntary liquidation, dissolution or windup of the Corporation, the holders of ESOP Preferred Stock shall be entitled to receive out of assets of the Corporation which remain after satisfaction in full of all valid claims of creditors of the Corporation and which are available for payment to shareholders, and subject to the rights of the holders of any stock of the Corporation ranking senior to or on a parity with the ESOP Preferred Stock in respect of distributions upon liquidation, dissolution or windup of the Corporation, before any amount shall be paid or distributed among the holders of Common Shares or any other shares ranking junior to the ESOP Preferred Stock in respect of distributions upon liquidation, dissolution or windup of the Corporation, liquidating distributions in the amount of $25.00 per share, plus an amount equal to all accrued and unpaid dividends thereon to the date fixed for distribution, and no more. If upon any liquidation, dissolution or windup of the Corporation, the amounts payable with respect to the ESOP Preferred Stock and any other stock ranking as to any such distribution on a parity with the ESOP Preferred Stock are not paid in full, the holders of the ESOP Preferred Stock and such other stock shall share ratably in any distribution of assets in proportion to the full respective preferential amounts to which they are entitled. After payment of the full amount to which they are entitled as provided by the foregoing provisions of this paragraph 10.4(a), the holders of shares of ESOP Preferred Stock shall not be entitled to any further right or claim to any of the remaining assets of the Corporation. (b) Neither the merger or consolidation of the Corporation with or into any other corporation, nor the merger or consolidation of any other corporation with or into the Corporation, nor the sale, lease, exchange or other transfer of all or any portion of the assets of the Corporation, shall be deemed to be a dissolution, liquidation or windup of the affairs of the Corporation for purposes of this Section 10.4, but the holders of the ESOP Preferred Stock shall nevertheless be entitled in the event of any such merger or consolidation to the rights provided by Section 10.8 hereof. (c) Written notice of any voluntary or involuntary liquidation, dissolution or windup of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable to holders of ESOP Preferred Stock in such circumstances shall be payable, shall be given by first-class mail, postage prepaid, mailed not less than twenty (20) days prior to any payment date stated therein, to the holders of ESOP Preferred Stock, at the address shown on the books of the Corporation or any transfer agent for the ESOP Preferred Stock. Section 10.5 Conversion into Common Shares. (a) A holder of shares of ESOP Preferred Stock shall be entitled, at any time prior to the close of business on the date fixed for redemption of such shares pursuant to Sections 10.6, 10.7 and 10.8 hereof, to cause any or all of such shares to be converted into shares of Common Shares, initially at a conversion rate equal to the ratio of $25.00 to the amount which initially shall be $577.79 and which shall be adjusted as hereinafter provided (and, as so adjusted, is hereinafter sometimes referred to as the "Conversion Price") (that is, a conversion rate initially equivalent to 0.04327 shares of Common Shares for each share of ESOP Preferred Stock so converted, which is subject to adjustment as the Conversion Price is adjusted as hereinafter provided). (b) Any holder of shares of ESOP Preferred Stock desiring to convert such shares into shares of Common Shares shall surrender the certificate or certificates representing the shares of ESOP Preferred Stock being converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto), at the principal executive office of the Corporation or the offices of the transfer agent for the ESOP Preferred Stock or such office or offices in the continental United States of an agent for conversion as may from time to time be designated by notice to the holders of the ESOP Preferred Stock by the Corporation or the transfer agent for the ESOP Preferred Stock, accompanied by written notice of conversion. Such notice of conversion shall specify (i) the number of shares of ESOP Preferred Stock to be converted and the name or names in which such holder wishes the certificate or certificates for Common Shares and for any shares of ESOP Preferred Stock not to be so converted to be issued and (ii) the address to which such holder wishes delivery to be made of such new certificates to be issued upon such conversion. (c) Upon surrender of a certificate representing a share or shares of ESOP Preferred Stock for conversion, the Corporation shall issue and send by hand delivery (with receipt to be acknowledged) or by first class mail, postage prepaid, to the holder thereof or to such holder's designee, at the address designated by such holder, a certificate or certificates for the number of shares of Common Shares to which such holder shall be entitled upon conversion. In the event that there shall have been surrendered a certificate or certificates representing shares of ESOP Preferred Stock, only part of which are to be converted, the Corporation shall issue and deliver to such holder or such holder's designee a new certificate or certificates representing the number of shares of ESOP Preferred Stock which shall not have been converted. (d) The issuance by the Corporation of shares of Common Shares upon a conversion of shares of ESOP Preferred Stock into shares of Common Shares made at the option of the holder thereof shall be effective as of the earlier of (i) the delivery to such holder or such holder's designee of the certificates representing the shares of Common Shares issued upon conversion thereof or (ii) the commencement of business on the second business day after the surrender of the certificate or certificates for the shares of ESOP Preferred Stock to be converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto) as provided herein. On and after the effective day of conversion, the person or persons entitled to receive the Common Shares issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Shares, but no allowance or adjustment shall be made in respect of dividends payable to holders of Common Shares in respect of any period prior to such effective date. The Corporation shall not be obligated to pay any dividends which shall have been declared and shall be payable to holders of shares of ESOP Preferred Stock on a Dividend Payment Date if such Dividend Payment Date for such dividend is subsequent to the effective date of conversion of such shares. (e) The Corporation shall at all times reserve and keep available out of its authorized and unissued Common Shares, solely for issuance upon the conversion of shares of ESOP Preferred Stock as herein provided, free from any preemptive rights, such number of shares of Common Shares as shall from time to time be issuable upon the conversion of all the shares of ESOP Preferred Stock then outstanding. Nothing contained herein shall preclude the Corporation from issuing shares of Common Shares held in its treasury upon the conversion of shares of ESOP Preferred Stock into Common Shares pursuant to the terms hereof. The Corporation shall prepare and shall use its best efforts to obtain and keep in force such governmental or regulatory permits or other authorizations as may be required by law, and shall comply with all requirements as to registration or qualification of the Common Shares, in order to enable the Corporation lawfully to issue and deliver to each holder of records of ESOP Preferred Stock such number of shares of its Common Shares as shall from time to time be sufficient to effect the conversion of all shares of ESOP Preferred Stock then outstanding and convertible into shares of Common Shares. Section 10.6 Redemption at the Option of the Corporation. (a) The ESOP Preferred Stock shall be redeemable, in whole or in part, at the option of the Corporation at any time at $25.00 per share, plus, in each case, an amount equal to all accrued and unpaid dividends thereon to the date fixed for redemption. Payment of the redemption price shall be made by the Corporation in cash or shares of Common Shares, or a combination thereof, as permitted by paragraph (e) of this Section 10.6. From and after the date fixed for redemption, dividends on shares of ESOP Preferred Stock called for redemption will cease to accrue, such shares will no longer be deemed to be outstanding and all rights in respect of such shares of the Corporation shall cease, except the right to receive the redemption price. If less than all of the outstanding shares of ESOP Preferred Stock are to be redeemed, the Corporation shall either redeem a portion of the shares of each holder determined pro rata based on the number of shares held by each holder or shall select the shares to be redeemed by lot, as may be determined by the Board of Directors of the Corporation. (b) Unless otherwise required by law, notice of redemption will be sent to the holders of ESOP Preferred Stock at the address shown on the books of the Corporation or any transfer agent for the ESOP Preferred Stock by first class mail, postage prepaid, mailed not less than twenty (20) days nor more than sixty (60) days prior to the redemption date. Each such notice shall state: (i) the redemption date; (ii) the total number of shares of the ESOP Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the redemption price; (iv) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date; and (vi) the conversion rights of the shares to be redeemed, the period within which conversion rights may be exercised, and the Conversion Price and number of shares of Common Shares issuable upon conversion of a share of ESOP Preferred Stock at the time. Upon surrender of the certificate for any shares so called for redemption and not previously converted (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the date fixed for redemption and at the redemption price set forth in this Section 10.6. (c) In the event of a change in the federal tax law of the United States of America which has the effect of precluding the Corporation from claiming any of the tax deductions for dividends paid on the ESOP Preferred Stock when such dividends are used as provided under Section 404(k)(2) of the Internal Revenue Code of 1986, as amended and in effect on the date shares of ESOP Preferred Stock are initially issued, the Corporation may, in its sole discretion and notwithstanding anything to the contrary in paragraph (a) of this Section 10.6, elect to redeem any or all of such shares for the amount payable in respect of the shares upon liquidation of the Corporation pursuant to Section 10.4 hereof. (d) In the event that the Plan is terminated in accordance with its terms, and notwithstanding anything to the contrary in paragraph (a) of this Section 10.6, the Corporation shall, as soon thereafter as practicable, call for redemption all then outstanding shares of ESOP Preferred Stock for the amount payable in respect of the shares upon liquidation of the Corporation pursuant to Section 10.4 hereof. (e) The Corporation, at its option, may make payment of the redemption price required upon redemption of shares of ESOP Preferred Stock in cash or in shares of Common Shares, or in a combination of such shares and cash, any such shares of Common Shares to be valued for such purposes at their Fair Market Value (as defined in paragraph (f) of Section 10.9 hereof). Section 10.7 Other Redemption Rights. Shares of ESOP Preferred Stock shall be redeemed by the Corporation except to the extent prohibited by law for shares of Common Shares, or if the Corporation so elects, in cash, or a combination of such shares and cash, any such shares of Common Shares to be valued for such purpose as provided by paragraph (e) of Section 10.6, at a redemption price of $25.00 per share plus accrued and unpaid dividends thereon to the date fixed for redemption, at the option of the holder, at any time and from time to time upon notice to the Corporation given not less than five (5) business days prior to the date fixed by the holder in such notice for such redemption, upon certification by such holder to the Corporation that redemption is necessary for such holder to provide for distributions required to be made to participants under, or to satisfy an investment election provided to participants in accordance with, the Plan, or any successor plan. Section 10.8 Consolidation, Merger, etc. (a) In the event that the Corporation shall consummate any consolidation or merger or similar business combination, pursuant to which the outstanding shares of Common Shares are by operation of law exchanged solely for or changed, reclassified or converted solely into stock of any successor or resulting corporation (including the Corporation) that constitutes "qualifying employer securities" with respect to a holder of ESOP Preferred Stock within the meaning of Section 4975(e)(8) of the Internal Revenue Code of 1986, as amended, and Section 407(d)(5) of the Employee Retirement Income Security Act of 1974, as amended, or any successor provisions of law, and, if applicable, for a cash payment in lieu of fractional shares, if any, the shares of ESOP Preferred Stock of such holder shall, in connection with such consolidation, merger or similar business combination, be assumed by and shall become preferred stock of such successor or resulting corporation, having in respect of such corporation, insofar as possible, the same powers, preferences and relative, participating, optional or other special rights (including the redemption rights provided by Sections 10.6, 10.7 and 10.8 hereof), and the qualifications, limitations or restrictions thereon, that the ESOP Preferred Stock had immediately prior to such transaction, except that after such transaction each share of the ESOP Preferred Stock shall be convertible, otherwise on the terms and conditions provided by Section 10.5 hereof, into the number and kind of qualifying employer securities so receivable by a holder of the number of shares of Common Shares into which such shares of ESOP Preferred Stock could have been converted immediately prior to such transaction; provided, however, that if by virtue of the structure of such transaction, a holder of Common Shares is required to make an election with respect to the nature and kind of consideration to be received in such transaction, which election cannot practicably be made by the holders of the ESOP Preferred Stock, then the shares of ESOP Preferred Stock shall, by virtue of such transaction and on the same terms as apply to the holders of Common Shares, be converted into or exchanged for the aggregate amount of stock, securities, cash or other property (payable in kind) receivable by a holder of the number of shares of Common Shares into which such shares of ESOP Preferred Stock could have converted immediately prior to such transaction if such holder of Common Shares failed to exercise any rights of election to receive any kind or amount of stock, securities, cash or other property (other than such qualifying employer securities and a cash payment, if applicable, in lieu of fractional shares) receivable upon such transaction (provided that, if the kind or amount of qualifying employer securities receivable upon such transaction is not the same for each nonelecting share, then the kind and amount so receivable upon such transaction for each nonelecting share shall be the kind and amount so receivable per share by the plurality of the nonelecting shares). The rights of the ESOP Preferred Stock as preferred stock of such successor or resulting corporation shall successively be subject to adjustment pursuant to Section 10.9 hereof after any such transaction as nearly equivalent as practicable to the adjustment provided for by such Section prior to such transaction. The Corporation shall not consummate any such merger, consolidation or similar transaction unless all then outstanding shares of ESOP Preferred Stock be assumed and authorized by the successor or resulting corporation as aforesaid. (b) In the event that the Corporation shall consummate any consolidation or merger or similar business combination, pursuant to which the outstanding shares of Common Shares are by operation of law exchanged for or changed, reclassified or converted into other stock or securities or cash or any other property, or any combination thereof, other than any such consideration which is constituted solely of qualifying employer securities (as referred to in paragraph (a) of this Section 10.8) and cash payments, if applicable, in lieu of fractional shares, outstanding shares of ESOP Preferred Stock shall, without any action on the part of the Corporation or any holder thereof (but subject to paragraph (c) of this Section 10.8), be automatically converted by virtue of such merger, consolidation or similar transaction immediately prior to such consummation into the number of shares of Common Shares into which such shares of ESOP Preferred Stock could have been converted at such time so that each share of ESOP Preferred Stock shall, by virtue of such transaction and on the same terms as apply to the holders of Common Shares, be converted into or exchanged for the aggregate amount of stock, securities, cash or other property (payable in like kind) receivable by a holder of the number of shares of Common Shares into which such shares of ESOP Preferred Stock could have been converted immediately prior to such transaction; provided, however, that if by virtue of the structure of such transaction, a holder of Common Shares is required to make an election with respect to the nature and kind of consideration to be received in such transaction, which election cannot practicably be made by the holders of the ESOP Preferred Stock, then the shares of ESOP Preferred Stock, by virtue of such transaction and on the same terms as apply to the holders of Common Shares, be converted into or exchanged for the aggregate amount of stock, securities, cash or other property (payable in kind) receivable by a holder of the number of shares of Common Shares into which such shares of ESOP Preferred Stock could have been converted immediately prior to such transaction if such holder of Common Shares failed to exercise any rights of election as to the kind or amount of stock, securities, cash or other property receivable upon such transaction (provided that, if the kind or amount of stock, securities, cash or other property receivable upon such transaction is not the same for each nonelection share, then the kind and amount of stock, securities, cash or other property receivable upon such transaction for each nonelecting share shall be the kind and amount so receivable per share by a plurality of the nonelecting shares). (c) In the event the Corporation shall enter into any agreement providing for any consolidation or merger or similar business combination described in paragraph (b) of this Section 10.8, then the Corporation shall as soon as practicable thereafter (and in any event at least ten (10) Business Days before consummation of such transaction) give notice of such agreement and the material terms thereof to each holder of ESOP Preferred Stock and each such holder shall have the right to elect, by written notice to the Corporation, to receive, upon consummation of such transaction (if and when such transaction is consummated), from the Corporation or the successor of the Corporation, in redemption and retirement of such ESOP Preferred Stock, a cash payment equal to the amount payable in respect of shares of ESOP Preferred Stock upon liquidation of the Corporation pursuant to Section 10.4 hereof. No such notice of redemption shall be effective unless given to the Corporation prior to the close of business on the fifth business day prior to consummation of such transaction, unless the Corporation or the successor of the Corporation shall waive such prior notice, but any notice of redemption so given prior to such time may be withdrawn by notice of withdrawal given to the Corporation prior to the close of business on the fifth Business Day prior to consummation of such transaction. Section 10.9 Anti-dilution Adjustments. (a) In the event the Corporation shall, at any time or from time to time while any of the shares of the ESOP Preferred Stock are outstanding, (i) pay a dividend or make a distribution in respect of the Common Shares in shares of Common Shares, (ii) subdivide the outstanding shares of Common Shares, or (iii) combine the outstanding shares of Common Shares into a smaller number of shares, in each case whether by reclassification of shares, recapitalization of the Corporation (including a recapitalization effected by a merger or consolidation to which Section 10.8 hereof does not apply) or otherwise, the Conversion Price in effect immediately prior to such action shall be adjusted by multiplying such Conversion Price by a fraction, the numerator of which is the number of shares of Common Shares outstanding immediately before such event, and the denominator of which is the number of shares of Common Shares outstanding immediately after such event. An adjustment made pursuant to this paragraph 10.9(a) shall be given effect, upon payment of such a dividend or distribution, as of the record date for the determination of stockholders entitled to receive such dividend or distribution (on a retroactive basis and in the case of a subdivision or combination shall become effective immediately as of the effective date thereof. (b) In the event the Corporation shall, at any time or from time to time while any of the shares of ESOP Preferred Stock are outstanding, issue to holders of shares of Common Shares as a dividend or distribution, including by way of a reclassification of shares on a recapitalization of the Corporation, any right or warrant to purchase shares of Common Shares (but not including as such a right or warrant any security convertible into or exchangeable for shares of Common Shares) at a purchase price per share less than the Fair Market Value (as hereinafter defined) of a share of Common Shares on the date of issuance of such right or warrant, then, subject to the provisions of paragraphs (d) and (e) of this Section 10.9, the Conversion Price shall be adjusted by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Shares outstanding immediately before such issuance of rights or warrants plus the number of shares of Common Shares which could be purchased at the Fair Market Value of a share of Common Shares at the time of such issuance for the maximum aggregate consideration payable upon exercise in full of all such rights or warrants, and the denominator of which shall be the number of shares of Common Shares outstanding immediately before such issuance of rights or warrants plus the maximum number of shares of Common Shares that could be acquired upon exercise in full of all such rights and warrants. (c) In the event the Corporation shall, at any time or from time to time while any of the shares of ESOP Preferred Stock are outstanding, make an Extraordinary Distribution (as hereinafter defined) in respect of the Common Shares, whether by dividend, distribution, reclassification of shares or recapitalization of the Corporation (including a recapitalization or reclassification effected by a merger or consolidation to which Section 10.8 hereof does not apply) or effect a Pro Rata Repurchase (as hereinafter defined) of Common Shares, the Conversion Price in effect immediately prior to such Extraordinary Distribution or Pro Rata Repurchase shall, subject to paragraphs (d) and (e) of this Section 10.9, be adjusted by multiplying such Conversion Price by the fraction the numerator of which is (i) the product of (x) the number of shares of Common Shares outstanding immediately before such Extraordinary Distribution or Pro Rata Repurchase multiplied by (y) the Fair Market Value of a share of Common Shares on the day before the ex-dividend date with respect to an Extraordinary Distribution which is paid in cash and on the distribution date with respect to an Extraordinary Distribution which is paid other than in cash, or on the applicable expiration date (including all extensions thereof) of any tender offer which is a Pro Rata Repurchase, or on the date of purchase with respect to any Pro Rata Repurchase which is not a tender offer, as the case may be, minus (ii) the Fair Market Value of the Extraordinary Distribution or the aggregate purchase price of the Pro Rata Repurchase, as the case may be, and the denominator of which shall be the product of (a) the number of shares of Common Shares outstanding immediately before such Extraordinary Dividend or Pro Rata Repurchase minus, in the case of a Pro Rata Repurchase, the number of shares of Common Shares repurchased by the Corporation multiplied by (b) the Fair Market Value of a share of Common Shares on the day before the ex-dividend date with respect to an Extraordinary Distribution which is paid in cash and on the distribution date with respect to an Extraordinary Distribution which is paid other than in cash, or on the applicable expiration date (including all extensions thereof) of any tender offer which is a Pro Rata Repurchase or on the date of purchase with respect to any Pro Rata Repurchase which is not a tender offer, as the case may be. The Corporation shall send each holder of ESOP Preferred Stock (i) notice of its intent to make any dividend or distribution and (ii) notice of any offer by the Corporation to make a Pro Rata Repurchase, in each case at the same time as, or as soon as practicable after, such offer is first communicated (including by announcement of a record date in accordance with the rules of any stock exchange on which the Common Shares is listed or admitted to trading) to holders of Common Shares. Such notice shall indicate the intended record date and the amount and nature of such dividend or distribution, or the number of shares subject to such offer for a Pro Rata Repurchase and the purchase price payable by the Corporation pursuant to such offer, as well as the Conversion Price and the number of shares of Common Shares into which a share of ESOP Preferred Stock may be converted at such time. (d) Notwithstanding any other provisions of this Section 10.9, the Corporation shall not be required to make any adjustment to the Conversion Price unless such adjustment would require an increase or decrease of at least one percent (1%) in the Conversion Price. Any lesser adjustment shall be carried forward and shall be made no later than the time of, and together with, the next subsequent adjustment which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least one percent (1%) in the Conversion Price. (e) If the Corporation shall make any dividend or distribution on the Common Shares or issue any Common Shares, other capital stock or other security of the Corporation or any rights or warrants to purchase or acquire any such security, which transaction does not result in an adjustment to the Conversion Price pursuant to the foregoing provisions of this Section 10.9, the Board of Directors of the Corporation shall consider whether such action is of such a nature that an adjustment to the Conversion Price should equitably be made in respect of such transaction. If in such case the Board of Directors of the Corporation determines that an adjustment to the Conversion Price should be made, an adjustment shall be made effective as of such date, as determined by the Board of Directors of the Corporation. The determination of the Board of Directors of the Corporation as to whether an adjustment to the Conversion Price should be made pursuant to the foregoing provisions of this paragraph 10.9(e) and, if so, as to what adjustment should be made and when, shall be final and binding on the Corporation and all shareholders of the Corporation. The Corporation shall be entitled to make such additional adjustments in the Conversion Price, in addition to those required by the foregoing provisions of this Section 10.9, as shall be necessary in order that any dividend or distribution in shares of capital stock of the Corporation, subdivision, reclassification or combination of shares of stock of the Corporation or any recapitalization of the Corporation shall not be taxable to the holders of the Common Shares. (f) As used herein, the following definitions shall apply: "Business Day" shall mean each day that is not a Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York are not required to be open. "Current Market Price" of publicly traded shares of Common Shares or any other class of Capital Stock or other security of the Corporation or any other issuer for any day shall mean the last reported sales price, regular way, or, in the event that no sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if such security is not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which such security is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the NASDAQ National Market System or, if such security is not quoted on such National Market System, the average of the closing bid and asked prices on each such day in the over-the-counter market as reported by NASDAQ or, if bid and asked prices for such security on each such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such day as furnished by any New York Stock Exchange member firm regularly making a market in such security selected for such purpose by the Board of Directors of the Corporation or a committee thereof, in each case, on each trading day during the Adjustment Period. "Adjustment Period" shall mean the period of five (5) consecutive trading days preceding, and including, the date as of which the Fair Market Value of a security is to be determined. The "Fair Market Value" of any security which is not publicly traded or of any other property shall mean the fair value thereof as determined by an independent investment banking or appraisal firm experienced in the valuation of such securities or property selected in good faith by the Board of Directors of the Corporation or a committee thereof, or, if no such investment banking or appraisal firm is in good faith judgment of the Board of Directors or such committee available to make such determination, as determined in good faith by the Board of Directors of the Corporation or such committee. "Extraordinary Distribution" shall mean any dividend or other distribution to holders of Common Shares (effected while any of the shares of ESOP Preferred Stock are outstanding) (i) of cash, where the aggregate amount of such cash dividend or distribution, together with the amount of all cash dividends and distributions made during the preceding period of 12 months, when combined with the aggregate amount of all Pro Rata Repurchases (for this purpose, including only that portion of the aggregate purchase price of such Pro Rata Repurchase which is in excess of the Fair Market Value of the Common Shares repurchased as determined on the applicable expiration date (including all extensions thereof) of any tender offer or exchange offer which is a Pro Rata Repurchase, or the date of purchase with respect to any other Pro Rata Repurchase which is not a tender offer or exchange offer made during such period), exceeds fifteen percent (15%) of the aggregate Fair Market Value of all shares of Common Shares outstanding on the day before the ex-dividend date with respect to such Extraordinary Distribution which is paid in cash and on the distribution date with respect to an Extraordinary Distribution which is paid other than in cash, and/or (ii) of any shares of capital stock of the Corporation (other than shares of Common Shares), other securities of the Corporation (other than securities of the type referred to in paragraph (b) or (c) of this Section 10.9), evidences of indebtedness of the Corporation or any other person or any other property (including shares of any subsidiary of the Corporation) or any combination thereof. The Fair Market Value of an Extraordinary Distribution for purposes of paragraph (d) of this Section 10.9 shall be equal to the sum of the Fair Market Value of such Extraordinary Distribution plus the amount of any cash dividends which are not Extraordinary Distributions made during such 12-month period and not previously included in the calculation of an adjustment pursuant to paragraph (d) of this Section 10.9. "Fair Market Value" shall mean, as to shares of Common Shares or any other class of capital stock or securities of the Corporation or any other issuer which are publicly traded, the average of the Current Market Prices of such shares or securities for each day of the Adjustment Period. "Non-Dilutive Amount" in respect of an issuance, sale or exchange by the Corporation of any right or warrant to purchase or acquire shares of Common Shares (including any security convertible into or exchangeable for shares of Common Shares) shall mean the remainder of: (i) The product of the Fair Market Value of a share of Common Shares on the day preceding the first public announcement of such issuance, sale or exchange multiplied by the maximum number of shares of Common Shares which could be acquired on such date upon the exercise in full of such rights and warrants (including upon the conversion or exchange of all such convertible or exchangeable securities), whether or not exercisable (or convertible or exchangeable) at such date, minus (ii) The aggregate amount payable pursuant to such right or warrant to purchase or acquire such maximum number of shares of Common Shares; provided, however, that in no event shall the Non-Dilutive Amount be less than zero. For purposes of the foregoing sentence, in the case of a security convertible into or exchangeable for shares of Common Shares, the amount payable pursuant to a right or warrant to purchase or acquire shares of Common Shares shall be the Fair Market Value of such security on the date of the issuance, sale or exchange of such security by the Corporation. "Pro Rata Repurchase" shall mean any purchase of shares of Common Shares by the Corporation or any subsidiary thereof, whether for cash, shares of capital stock of the Corporation, other securities of the Corporation, evidences of indebtedness of the Corporation or any other person or any other property (including shares of a subsidiary of the Corporation), or any combination thereof, effected while any of the shares of ESOP Preferred Stock are outstanding, pursuant to any tender offer or exchange offer subject to Section 13(e) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any successor provision of law, or pursuant to any other offer available to substantially all holders of Common Shares; provided, however, that no purchase of shares by the Corporation, or any subsidiary thereof made in open market transactions shall be deemed a Pro Rata Repurchase. For purposes of this paragraph 10.9(f), shares shall be deemed to have been purchased by the Corporation or any subsidiary thereof "in open market transactions" if they have been purchased substantially in accordance with the requirements of Rule 10b-18 as in effect under the Exchange Act, on the date shares of ESOP Preferred Stock are initially issued by the Corporation or on such other terms and conditions as the Board of Directors of the Corporation or a committee thereof shall have determined are reasonably designed to prevent such purchases from having a material effect on the trading market for the Common Shares. (g) Whenever an adjustment to the Conversion Price and the related voting rights of the ESOP Preferred Stock is required hereunder, the Corporation shall forthwith place on file with the transfer agent for the Common Shares and the ESOP Preferred Stock, and with the Secretary of the Corporation, a statement signed by two officers of the Corporation stating the adjusted Conversion Price determined as provided herein and the resulting conversion ratio, and the voting rights (as appropriately adjusted), of the ESOP Preferred Stock. Such statement shall set forth in reasonable detail such facts as shall be necessary to show the reason and the manner of computing such adjustment, including any determination of Fair Market Value involved in such computation. Promptly after each adjustment to the Conversion Price and the related voting rights of the ESOP Preferred Stock, the Corporation shall mail a notice thereof and of the then prevailing conversion ratio to each holder of shares of the ESOP Preferred Stock. Section 10.10 Ranking; Retirement of Shares. (a) The ESOP Preferred Stock shall rank senior to the Common Shares as to the payment of dividends and the distribution of assets on liquidation, dissolution and windup of the Corporation, and, unless otherwise provided in these Restated Articles of Incorporation of the Corporation, as the same may be amended, relating to a subsequent series of Preferred Stock of the Corporation, the ESOP Preferred Stock shall rank junior to the Series A Preferred Stock (as defined in Article XI) and all subsequent series of the Corporation's Preferred Stock as to the payment of dividends and the distribution of assets on liquidation, dissolution or windup. (b) Any shares of ESOP Preferred Stock acquired by the Corporation by reason of the conversion or redemption of such shares as provided herein, or otherwise so acquired, shall be retired as shares of ESOP Preferred Stock and restored to the status of authorized but unissued shares of Special Shares of the Corporation, undesignated as to series, and may thereafter be reissued as part of a new series of such Special Shares as permitted by law. Section 10.11 Miscellaneous. (a) All notices referred to herein shall be in writing, and all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three (3) business days after the mailing thereof if sent by registered mail (unless first-class mail shall be specifically herein permitted for such notice) with postage prepaid, addressed: (i) if to the Corporation, to its office at 10501 Corporate Drive, Fort Wayne, Indiana 46845 (Attention: Secretary), or to the transfer agent for the ESOP Preferred Stock, or other agent of the Corporation designated as permitted herein or (ii) if to any holder of the ESOP Preferred Stock or Common Shares, as the case may be, to such holder at the address of such holder as listed in the stock record books of the Corporation (which may include the records of any transfer agent for the ESOP Preferred Stock or Common Shares, as the case may be) or (iii) to such other address as the Corporation or any such holder, as the case may be, shall have designated by notice similarly given. (b) The term "Common Shares" as used in this Article means the Corporation's Common Shares, as the same exists at the date of filing these Restated Articles of Incorporation relating to the ESOP Preferred Stock. In the event that, at any time as a result of an adjustment made pursuant to Section 10.9, the holder of any shares of the ESOP Preferred Stock upon thereafter surrendering such shares for conversion, shall become entitled to receive any shares or other securities of the Corporation other than shares of Common Shares, the Conversion Price in respect of such other shares or securities so receivable upon conversion of shares of ESOP Preferred Stock shall thereafter be adjusted, and shall be subject to further adjustment from time to time, in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Shares contained in Section 10.9 hereof, and the provisions of Sections 10.1 through 10.8, 10.10 and 10.11 hereof with respect to the Common Shares shall apply on like or similar terms to any such other shares or securities. (c) The Corporation shall pay any and all stock transfer and documentary stamp taxes that may be payable in respect of any issuance or delivery of shares of ESOP Preferred Stock or shares of Common Shares or other securities issued on account of ESOP Preferred Stock pursuant hereto or certificates representing such shares or securities. The Corporation shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issuance or delivery of shares of ESOP Preferred Stock or Common Shares or other securities in a name other than that in which the shares of ESOP Preferred Stock with respect to which such shares or other securities are issued or delivered were registered, or in respect of any payment to any person with respect to any such shares or securities other than a payment, to the registered holder thereof, and shall not be required to make any such issuance, delivery or payment unless and until the person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid or is not payable. (d) In the event that a holder of shares of ESOP Preferred Stock shall not by written notice designate the name in which shares of Common Shares to be issued upon conversion of such shares should be registered or to whom payment upon redemption of shares of ESOP Preferred Stock should be made or the address to which the certificate or certificates representing such shares, or such payment, should be sent, the Corporation shall be entitled to register such shares, and make such payment, in the name of the holder of such ESOP Preferred Stock as shown on the records of the Corporation and to send the certificate or certificates representing such shares, or such payment, to the address of such holder shown on the records of the Corporation. (e) Unless otherwise provided in these Restated Articles of Incorporation, as the same may be amended, of the Corporation, all payments in the form of dividends, distributions on voluntary or involuntary dissolution, liquidation or windup or otherwise made upon the shares of ESOP Preferred Stock and any other stock ranking on a parity with the ESOP Preferred Stock with respect to such dividend or distribution shall be pro rata, so that amounts paid per share on the ESOP Preferred Stock and such other stock shall in all cases bear to each other the same ratio that the required dividends, distributions or payments, as the case may be, then payable per share on the shares of the ESOP Preferred Stock and such other stock bear to each other. (f) The Corporation may appoint, and from time to time discharge and change, a transfer agent for the ESOP Preferred Stock. Upon any such appointment or discharge of a transfer agent, the Corporation shall send notice thereof by first-class mail, postage prepaid, to each holder of record of ESOP Preferred Stock. ARTICLE XI PREFERENCES AND RIGHTS OF SERIES A SENIOR PREFERRED STOCK The voting powers, preferences and relative, participating, optional and other special rights of the shares of Series A Senior Preferred Stock, and the qualifications, limitations or restrictions thereof, are as follows: Section 11.1 Designation and Amount. The designation of this series of shares shall be "Series A Senior Preferred Stock" (the "Series A Preferred Stock"); the stated value per share shall be $10 (the "Stated Value"); and the number of authorized shares constituting such series shall be 25,000 (twenty five thousand). Additional shares of Series A Preferred Stock (other than as issued pursuant to the Plan of Reorganization) may not be issued, except as dividends on the Series A Preferred Stock issued in accordance with the Plan of Reorganization. Section 11.2 Rank. (a) Dividends. With respect to dividend rights, the Series A Preferred Stock shall rank prior to the Common Shares, all of the Corporation's other Special Shares (the "Other Special Shares") and all other classes and series of capital stock of the Corporation hereafter issued by the Corporation. With respect to dividends, all equity securities of the Corporation to which the Series A Preferred Stock ranks senior, including the Common Shares and the Other Special Shares, are collectively referred to herein as the "Junior Dividend Securities." (b) Liquidation. With respect to the distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the Series A Preferred Stock shall rank prior to the Common Shares, the Other Special Shares and all other classes and series of capital stock of the Corporation hereafter issued by the Corporation. With respect to the distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, all equity securities of the Corporation to which the Series A Preferred Stock ranks senior, including the Common Shares and the Other Special Shares, are collectively referred to herein as "Junior Liquidation Securities." (c) New Issues. The Corporation may issue Junior Dividend Securities and Junior Liquidation Securities (collectively, "Junior Securities"). Section 11.3 Dividends. Except as provided in Section 11.5(A), shares of Series A Preferred Stock shall accumulate dividends at a rate of 16.0% per annum. Until the Debt Repayment Date, dividends will cumulate, but the Corporation may, at its option, pay dividends in lieu of accumulating them by issuing additional fully paid and non-assessable shares of Series A Preferred Stock having an aggregate liquidation preference equal to the amount of such dividend. Dividends will be based on the aggregate Liquidation Preference (as defined below) outstanding for that quarter. Dividends shall be paid in four equal quarterly installments on the last day of February, May, August and November of each year, commencing on November 30, 2000, or if any such date is not a Business Day (as hereinafter defined), the Business Day next preceding such day (each such date, regardless of whether any dividends have been paid or declared and set aside for payment on such date, a "Dividend Payment Date"), to holders of record (the "Registered Holders") as they appear on the stock record books of the Corporation on the thirtieth day prior to the relevant Dividend Payment Date (the "Record Date"). Dividends shall begin to accumulate on outstanding shares of Series A Preferred Stock, including shares issued as payment of dividends, from the date of issuance and shall be deemed to accumulate from day to day whether or not earned or declared until the shares of Series A Preferred Stock on which such dividends are being accumulated shall have been redeemed in accordance with Section 11.5 hereof. Dividends shall accumulate on the basis of a 360-day year consisting of twelve 30-day months (four 90-day quarters) and the actual number of days elapsed in the period for which payable. The additional shares of Series A Preferred Stock issued in payment of dividends shall be valued per share at the Stated Value per share (which, upon issuance, shall be fully paid and nonassessable). So long as any of the shares of Series A Preferred Stock are outstanding, no dividends shall be declared or paid or set apart for payment by the Corporation and no other distribution of cash or other property shall be declared or made directly or indirectly by the Corporation with respect to any class or series of Junior Dividend Securities for any period unless dividends equal to the full amount of accumulated, accrued and unpaid dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof, in cash or additional shares of Series A Preferred Stock as provided for in this Article XI, has been or contemporaneously is set apart for such payment on the Series A Preferred Stock for all periods terminating on or prior to the most recent Dividend Payment Date. Section 11.4 Liquidation Preference. In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of then-outstanding shares of Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are capital or surplus of any nature, an amount per share equal to the sum of (i) the dividends, if any, accumulated or deemed to have accumulated thereon to the date of final distribution to such holders, whether or not such dividends are declared, and (ii) the Stated Value thereof, and no more, before any payment or distribution shall be made or set aside or any assets distributed to or set aside for the holders of any Junior Liquidation Securities (the foregoing dividends plus Stated Value being the "Liquidation Preference"). After any such payment in full, the holders of Series A Preferred Stock shall not, as such, be entitled to any further participation in any distribution of assets of the Corporation. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of Series A Preferred Stock shall be insufficient to pay in full the Liquidation Preference to the holders of Series A Preferred Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of Series A Preferred Stock ratably in the same proportion as the respective amounts that would be payable on such Series A Preferred Stock if all amounts payable thereon were paid in full. Neither a consolidation or merger of the Corporation with or into any other Person or Persons, nor a sale, conveyance, lease, exchange or transfer of all or part of the Corporation's assets for cash, securities or other property to a Person or Persons shall be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 11.4, but the holders of shares of Series A Preferred Stock shall nevertheless be entitled from and after any such consolidation, merger or sale, conveyance, lease, exchange or transfer of all or part of the Corporation's assets to the same rights and preferences provided by this Section 11.4 following any such transaction. Notice of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable to each holder of shares of Series A Preferred Stock in such circumstances shall be payable, shall by Overnight Delivery be delivered not less than 30 days prior to any payment date stated therein, to holders of record as they appear on the stock record books of the Corporation as of the date such notices are first delivered. Section 11.5 Redemption (a) Mandatory Redemption. Upon the occurrence of a Mandatory Redemption Event, the Corporation shall redeem (a "Mandatory Redemption") all outstanding shares of Series A Preferred Stock by paying an amount per share equal to 100% of the Liquidation Preference (the "Mandatory Redemption Price"). In addition to paying the Mandatory Redemption Price, the Corporation shall pay an additional amount per share in connection with any Mandatory Redemption caused by the Special Loans (but not all of the Term Loans) being prepaid, which per share amount shall be equal to the following percentage of Liquidation Preference depending on the date of the Mandatory Redemption Event as set forth below: Date Percentage ---- ---------- Date hereof - 11/30/01 2.0% 12/1/01 - 2/28/02 1.5% 3/1/02 - 5/31/02 1.0% 6/1/02 - 8/31/02 0.5% If the Mandatory Redemption Price is not paid on the Redemption Date (as hereinafter defined), dividends shall accrue daily at 19% per annum and will be paid in cash out of funds legally available for that purpose on a quarterly basis from the Redemption Date until the Series A Preferred Stock is redeemed. (b) Notice and Redemption Procedures. Notice of the redemption of shares of Series A Preferred Stock pursuant to Paragraph (a) hereof (a "Notice of Redemption") shall be sent to the holders of record of the shares of Series A Preferred Stock to be redeemed by Overnight Delivery, at each such holder's address as it appears on the stock record books of the Corporation not more than five (5) Business Days following the occurrence of a Mandatory Redemption Event, which Notice of Redemption shall set forth a date for redemption which date shall be within 10 Business Days of the date of such notice with respect to a Mandatory Redemption (the "Redemption Date"); provided that failure to give such Notice of Redemption to any holder, or any defect in such Notice of Redemption to any holder shall not affect the validity of the proceedings for the redemption of any shares of Series A Preferred Stock held by any other holder. In order to facilitate the redemption of shares of Series A Preferred Stock, the Board of Directors may fix a record date for the determination of the holders of shares of Series A Preferred Stock to be redeemed, in each case, not more than 30 days prior to the date the Notice of Redemption is delivered. On or after the Redemption Date, each holder of the shares called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Mandatory Redemption Price from the place where funds have been deposited as set forth in such notice. From and after the Redemption Date, all dividends on shares of Series A Preferred Stock shall cease to accumulate and all rights of the holders thereof as holders of Series A Preferred Stock shall cease and terminate, except to the extent the Corporation shall default in payment thereof on the Redemption Date. (c) Deposit of Funds. The Corporation shall, on or prior to any Redemption Date pursuant to this Section 11.5, deposit with its Transfer Agent or other redemption agent in the Borough of Manhattan, The City of New York having a capital and surplus of at least $500,000,000 selected by the Board of Directors, as a trust fund for the benefit of the holders of the shares of Series A Preferred Stock to be redeemed, cash that is sufficient in amount to redeem the shares to be redeemed in accordance with the Notice of Redemption, with irrevocable instructions and authority to such transfer agent or other redemption agent to pay to the respective holders of such shares, as evidenced by a list of such holders certified by an officer of the Corporation, the Mandatory Redemption Price upon surrender of their respective share certificates. Such deposit shall be deemed to constitute full payment of such shares to the holders, and from and after the date of such deposit, all rights of the holders of the shares of Series A Preferred Stock that are to be redeemed as stockholders of the Corporation with respect to such shares, except the right to receive the Mandatory Redemption Price upon the surrender of their respective certificates, shall cease and terminate. No dividends shall accumulate on redeemed shares of Series A Preferred Stock after the Redemption Date for such shares (unless the Corporation shall fail to deposit cash sufficient to redeem all such shares). In case holders who were given notice in accordance with subsection (b) of any shares of Series A Preferred Stock called for redemption shall not, within 90 days after such deposit, claim the cash deposited for redemption thereof, such transfer agent or other redemption agent shall, upon demand, pay over to the Corporation the balance so deposited. Thereupon, such transfer agent or other redemption agent shall be relieved of all responsibility to the holders thereof and the sole right of such holders, with respect to shares to be redeemed, shall be to receive the Mandatory Redemption Price as general creditors of the Corporation. Any interest accrued on any funds so deposited shall belong to the Corporation, and shall be paid to it from time to time on demand. Section 11.6 Voting Rights (a) General. The holders of shares of Series A Preferred Stock shall have no voting rights except as set forth below or as otherwise from time to time required by law. (b) Number of Votes. So long as any shares of the Series A Preferred Stock are outstanding, a holder of Series A Preferred Stock shall be entitled to one vote per share of Series A Preferred Stock with respect to: (i) the election of directors, as provided in Paragraphs C and D below; and (ii) amendments to the terms of the Series A Preferred Stock, as provided in Section 11.7 hereof. (c) Directors. The holders of a majority of the outstanding Series A Preferred Stock shall be entitled to elect 2 of the 9 members of the Board of Directors of the Corporation, voting as a separate class. The right of the holders of the Series A Preferred Stock to appoint 2 directors shall terminate upon the redemption of the Series A Preferred Stock and any such appointed directors shall resign at such time. For so long as there are any shares of Series A Preferred Stock outstanding, the number of members of the Board of Directors shall be not more than nine (9), except as provided in clause (d) below. (d) Majority of Directors. Upon a Payment Default, the Company's Board of Directors shall automatically be increased to 15 and the holders of a majority of the shares of Series A Preferred Stock (voting as a separate class) shall be entitled to elect a majority of the directors on the Board of Directors of the Corporation ("Majority Directors"). Majority Directors shall continue as directors and such additional voting right shall continue until such time as the redemption of the Series A Preferred Stock (or the setting aside of all necessary funds for payment thereof). (e) Procedures. (i) The foregoing rights of holders of shares of Series A Preferred Stock to take any action as provided in this Section 11.6 may be exercised at any annual meeting of stockholders or at a special meeting of stockholders held for such purpose as hereinafter provided or at any adjournment thereof, or by the written consent, delivered to the Secretary of the Corporation, of the holders of the minimum number of shares required to take such action. So long as such right to vote continues (and unless such right has been exercised by written consent of the minimum number of shares required to take such action), the Chairman of the Board of Directors may call, and upon the written request of holders of record of 20% of the outstanding shares of Series A Preferred Stock, addressed to the Secretary of the Corporation at the principal office of the Corporation, shall call, a special meeting of the holders of shares entitled to vote as provided herein. The Corporation shall use its best efforts to hold such meeting within 60 days after delivery of such request to the Secretary, at the place and upon the notice provided by law and in the Restated Bylaws for the holding of meetings of stockholders. (ii) In case any vacancy shall occur among the directors elected pursuant to Paragraphs C or D hereof, such vacancy may be filled for the unexpired portion of the term by vote of the remaining director or directors theretofore elected by such holders (or such director's or directors' successor in office), if any. If any such vacancy is not so filled within 20 days after the creation thereof or if all of the directors so elected shall cease to serve as directors before their term shall expire, the holders of the shares of Series A Preferred Stock then outstanding and entitled to vote for such director pursuant to the provisions of Paragraphs C and D hereof may elect successors to hold office for the unexpired terms of any vacant directorships, by written consent as herein provided, or at a special meeting of such holders called as provided herein. The holders of a majority of the shares of Series A Preferred Stock entitled to vote for directors pursuant to Paragraphs C and D hereof shall have the right to remove with or without cause at any time and replace any directors such holders have elected pursuant to such section, by written consent as herein provided, or at a special meeting of such holders called as provided herein. Section 11.7 Amendments; Other. Without the consent or affirmative vote of the holders of at least a majority of the outstanding shares of Series A Preferred Stock, voting separately as a class, the Corporation shall not, and shall not permit its subsidiaries to, amend, alter or repeal any provision of these Restated Articles of Incorporation or the Restated Bylaws if the amendment, alteration or repeal alters or changes the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely. Section 11.8 Additional Definitions For the purposes of this Article 11 regarding Series A Preferred Stock, the following terms shall have the meanings indicated: "Agents" are the Administrative Agent, which is ABN AMRO Bank N.V., and the Documentation Agent, which is AmSouth Bank. "Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act. The term "Affiliated" has a correlative meaning. "Business Day" means any day, other than a Saturday, Sunday or a day on which banking institutions in the State of Indiana are authorized or obligated by law or executive order to close. "Change of Control" means such time as: (a) any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, but excluding any Specified Person (as defined below) shall acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than 40% of the outstanding securities (on a fully diluted basis and taking into account any securities or contract rights exercisable, exchangeable or convertible into equity securities, but excluding any Series A Preferred Stock) of the Company having voting rights in the election of directors under normal circumstances; or (b) a majority of the members of the Board of Directors of the Company shall cease to be Continuing Members. (c) For purposes of the foregoing, (i) "Continuing Member" means a member of the Board of Directors who either (a) was a member of the Company's Board of Directors on the date hereof and has been such continuously thereafter, (b) became a member of such Board of Directors after the Closing Date (as defined in the New Credit Agreement) and whose election or nomination for election was approved by a vote of the majority of the Continuing Members then members of the Company's Board of Directors, or (c) was designated by the holders of the Series A Preferred Stock; and (ii) "Specified Person" means any beneficial holder of Senior Subordinate Note Claims (under and as defined in the Plan of Reorganization) immediately prior to the time the Plan of Reorganization becomes effective. "Debt Repayment Date" means the date upon which all of the following conditions shall be satisfied: (i) all obligations under the New Credit Agreement shall have been irrevocably paid in full in cash; (ii) no further obligations, (contingent or otherwise) to the Agents or any of the Lenders shall remain outstanding under the New Credit Agreement or any of the other New Credit Documents, other than any contingent obligation of the Corporation to indemnify the Agents and the Lenders and any other obligation which under the term of the New Credit Documents survives the repayment of the Obligations; and (iii) the Lenders' commitments to make Loans and to issue letters of credit under the New Credit Agreement shall have been irrevocably terminated. "Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, from time to time. "Lenders" means those certain lenders from time to time party to the New Credit Agreement. "Mandatory Redemption Event" means the first to occur of: (i) a Change of Control, and (ii) the payment in full of the Special Loans. "New Credit Agreement" means that certain Post-Confirmation Credit Agreement dated as of October 20, 2000, among the Corporation, various subsidiaries thereof as borrowers, various financial institutions, AmSouth Bank, as documentation agent, and ABN AMRO Bank N.V., as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time. "New Credit Documents" means the "Loan Documents" (as defined in the New Credit Agreement. "Obligations" means all loans, debts, liabilities, obligations, covenants and duties owing by the Corporation or any of its subsidiaries to the Lenders or the Agents or any indemnitee arising under the New Credit Documents, of any kind or nature whether now existing or hereafter created, whether due or to become due. "Overnight Delivery" means next business day delivery by a nationally recognized overnight delivery service. "Payment Default" means a default in the payment when due of the principal of any Special Loan provided that such default shall only be a Payment Default hereunder if the holders of a majority of the shares of Series A Preferred Stock shall notify the Corporation that they are exercising their rights hereunder. "Person" means any individual, corporation, company, association, partnership, joint venture, trust or unincorporated organization, or a government or any agency or political subdivision thereof. "Plan of Reorganization" means the Joint Prepackaged Plan of Reorganization of the Company and its subsidiary debtors as filed with and approved by the United States Bankruptcy Court for the District of Delaware dated as of August 16, 2000. "Restated Bylaws" means the Restated Bylaws of the Corporation. "Securities Act" means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, from time to time. "Special Loans" shall have the meaning set forth in the New Credit Agreement. "Term Loans" shall have the meaning set forth in the New Credit Agreement. Section 11.9 Miscellaneous (a) Notices. Any notice referred to herein shall be in writing and, shall be deemed to have been given upon hand delivery thereof, or upon Overnight Delivery thereof addressed as follows: (i) if to the Corporation, to its office at 10501 Corporate Drive, Fort Wayne, Indiana 46845, facsimile number (219) 484-1110; (ii) if to a holder of the Series A Preferred Stock, to such holder at the address of such holder as listed in the stock record books of the Corporation (which may include the records of any transfer agent for the Series A Preferred Stock); or (iii) to such other address as the Corporation or such holder, as the case may be, shall have designated by notice similarly given. (b) Reacquired Shares. Any shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the Corporation, directly or indirectly, in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof (and shall not be deemed to be outstanding for any purpose) and, if necessary to provide for the lawful redemption or purchase of such shares, the capital represented by such shares shall be reduced in accordance with the Corporation Law. (c) Restrictions. The Series A Preferred Stock shall not be detachable from the Special Loans and shall not be sold, transferred, pledged or assigned unless there shall occur simultaneously a sale, transfer, pledge or assignment of a ratable portion of the Special Loans to the same Persons. Any attempted sale, transfer, pledge or assignment in violation of this Section 11.9(C) shall be null and void and shall not be recorded on the records of the Company. (d) Enforcement. Any registered holder of shares of Series A Preferred Stock may proceed to protect and enforce its rights and the rights of such holders by any available remedy by proceeding at law or in equity to protect and enforce any such rights, whether for the specific enforcement of any provision in this Article XI or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. (e) Transfer Agent. The Corporation may appoint, and from time to time discharge and change, a transfer agent for the Series A Preferred Stock (the "Transfer Agent"). Upon any such appointment or discharge of a transfer agent, the Corporation shall send notice thereof by Overnight Delivery to each holder of record of shares of Series A Preferred Stock. (f) Record Dates. In the event that the Series A Preferred Stock shall be registered under either the Securities Act or the Exchange Act, the Corporation shall establish appropriate record dates with respect to payments and other actions to be made with respect to the Series A Preferred Stock. EX-3 3 0003.txt EXHIBIT 3.4 - AMENDED AND RESTATED BYLAWS Exhibit 3.4 AMENDED AND RESTATED BYLAWS OF TOKHEIM CORPORATION (Dated as of October 20, 2000) ARTICLE I Meetings of Shareholders Section 1.1 Annual Meetings. Annual meetings of the shareholders of the Corporation shall be held in March of each year, on such date and at such hour and place within or without the State of Indiana as shall be designated by the Board of Directors. The Board of Directors may, by resolution, change the date, time or place of such annual meeting. If the day fixed for any annual meeting of shareholders shall fall on a legal holiday, then such annual meeting shall be held on the first following day that is not a legal holiday. Section 1.2 Special Meetings. Special meetings of the shareholders of the Corporation may be called at any time by a majority of the Board of Directors, the Chairman of the Board or the President and shall be called by the Board of Directors if the Secretary receives written, dated and signed demands for a special meeting, describing in reasonable detail the purpose or purposes for which it is to be held, from the holders of shares representing at least twenty-five percent (25%) of all votes entitled to be cast on any issue proposed to be considered at the proposed special meeting. If the Secretary receives one (1) or more proper written demands for a special meeting of shareholders, the Board of Directors may set a record date for determining shareholders entitled to make such demand. The Board of Directors or the Chairman of the Board, as the case may be, calling a special meeting of shareholders shall set the date, time and place of such meeting, which may be held within or without the State of Indiana. Section 1.3 Notices. A written notice, stating the date, time and place of any meeting of the shareholders, and in the case of a special meeting the purpose or purposes for which such meeting is called, shall be delivered or mailed by the Secretary of the Corporation, to each shareholder of record of the Corporation entitled to notice of or to vote at such meeting no fewer than ten (10) nor more than sixty (60) days before the date of the meeting. In the event of a special meeting of shareholders required to be called as the result of a demand therefor made by shareholders, such notice shall be given no later than the sixtieth (60th) day after the Corporation's receipt of the demand requiring the meeting to be called. Notice of shareholders' meetings, if mailed, shall be mailed, postage prepaid, to each shareholder at his address shown in the Corporation's current record of shareholders. Notice of a meeting of shareholders shall be given to shareholders not entitled to vote, but only if a purpose for the meeting is to vote on any amendment to the Corporation's Restated Articles of Incorporation, merger or share exchange to which the Corporation would be a party, sale of the Corporation's assets, dissolution of the Corporation, or consideration of voting rights to be accorded to shares acquired or to be acquired in a "control share acquisition" ( as such term is defined in the Indiana Business Corporation Law). Except as required by the foregoing sentence or as otherwise required by the Indiana Business Corporation Law or the Corporation's Restated Articles of Incorporation, notice of a meeting of shareholders is required to be given only to shareholders entitled to vote at the meeting. A shareholder or his proxy may at any time waive notice of a meeting if the waiver is in writing and is delivered to the Corporation for inclusion in the minutes or filing with the Corporation's records. A shareholder's attendance at a meeting, whether in person or by proxy, (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder or his proxy at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder or his proxy objects to considering the matter when it is presented. Each shareholder who has in the manner above provided waived notice or objection to notice of a shareholders' meeting shall be conclusively presumed to have been given due notice of such meeting, including the purpose or purposes thereof. If an annual or special shareholders' meeting is adjourned to a different date, time or place, notice need not be given of the new date, time or place if the new date, time or place is announced at the meeting before adjournment, unless a new record date is or must be established for the adjourned meeting. Section 1.4 Voting. Except as otherwise provided by the Indiana Business Corporation Law or the Corporation's Restated Articles of Incorporation, each share of the capital stock of any class of the Corporation that is outstanding at the record date established for any annual or special meeting of shareholders and is outstanding at the time of and represented in person or by proxy at the annual or special meeting, shall entitle the record holder thereof, or his proxy, to one (1) vote on each matter voted on at the meeting. Section 1.5 Quorum. Unless the Corporation's Restated Articles of Incorporation or the Indiana Business Corporation Law provide otherwise, at all meetings of shareholders a majority of the votes entitled to be cast on a matter, represented in person or by proxy, constitutes a quorum for action on the matter. Action may be taken at a shareholders' meeting only on matters with respect to which a quorum exists; provided, however, that any meeting of shareholders, including annual and special meetings and any adjournments thereof, may be adjourned to a later date although less than a quorum is present. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. Section 1.6 Vote Required to Take Action. If a quorum exists as to a matter to be considered at a meeting of shareholders, action on such matter (other than the election of Directors) is approved if the votes properly cast favoring the action exceed the votes properly cast opposing the action, except as the Corporation's Restated Articles of Incorporation or the Indiana Business Corporation Law require a greater number of affirmative votes. Directors shall be elected by a plurality of the votes properly cast. Section 1.7 Record Date. Only those persons shall be entitled to notice of or to vote, in person or by proxy, at any shareholders' meeting who shall appear as shareholders upon the books of the Corporation as of the record date for such meeting set by the Board of Directors, which date may not be earlier than the date seventy (70) days immediately preceding the meeting. In the absence of such determination, the record date shall be the fiftieth (50th) day immediately preceding the date of such meeting. Unless otherwise provided by the Board of Directors, shareholders shall be determined as of the close of business on the record date. Section 1.8 Proxies. A shareholder may vote his shares either in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder (including authorizing the proxy to receive, or to waive, notice of any shareholders' meetings within the effective period of such proxy) by signing an appointment form either personally or by the shareholder's attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes and is effective for eleven (11) months unless a shorter or longer period is expressly provided in the appointment form. The proxy's authority may be limited to a particular meeting or may be general and authorize the proxy to represent the shareholder at any meeting of shareholders held within the time provided in the appointment form. Subject to the Indiana Business Corporation Law and to any express limitation on the proxy's authority appearing on the face of the appointment form, the Corporation is entitled to accept the proxy's vote or other action as that of the shareholder making the appointment. Section 1.9 Removal of Directors. Subject to the provisions of Article XI of the Corporation's Restated Articles of Incorporation and the terms of any Special Shares properly issued by the Corporation, any or all of the members of the Board of Directors may be removed, with or without cause, only at a meeting of the shareholders called expressly for that purpose, by a vote of the holders of shares representing seventy-five percent (75%) of the votes then entitled to be cast at an election of Directors. Section 1.10 Participation by Conference Telephone. The Chairman of the Board or the Board of Directors may permit any or all shareholders to participate in an annual or special meeting of shareholders by, or through the use of, any means of communication, such as conference telephone, by which all shareholders participating may simultaneously hear each other during the meeting. A shareholder participating in a meeting by such means shall be deemed to be present in person at the meeting. Section 1.11 Notice of Shareholder Business. (a) At any meeting of the shareholders, only such business may be conducted as shall have been properly brought before the meeting, and as shall have been determined to be lawful and appropriate for consideration by shareholders at the meeting. To be properly brought before a meeting, business must be: (i) specified in the notice of meeting given in accordance with Section 1.3 of this Article I, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors or the Chief Executive Officer, or (iii) otherwise properly brought before the meeting by a shareholder. (b) For business to be properly brought before a meeting by a shareholder pursuant to clause (c) above, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal office of the Corporation, not less than 50 days nor more than 90 days prior to the meeting; provided, however, that in the event that less than 60 days' notice of the date of the meeting is given to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was given. A shareholder's notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the meeting: (i) a brief description of the business desired to be brought before the meeting, (ii) the name and address, as they appear on the Corporation's stock records, of the shareholder proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by the shareholder, and (iv) any interest of the shareholder in such business. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth in this Section 1.11. The person presiding at the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the Bylaws, or that business was not lawful or appropriate for consideration by shareholders at the meeting, and if he should so determine, he shall so declare to the meeting and any such business shall not be transacted. Section 1.12 Notice of Shareholder Nominees. Nominations of persons for election to the Board of Directors of the Corporation may be made at any meeting of shareholders by or at the direction of the Board of Directors or by any shareholder of the Corporation entitled to vote for the election of directors at the meeting. Shareholder nominations shall be made pursuant to timely notice given in writing to the Secretary of the Corporation in accordance with Section 1.11 of this Article I. Such shareholder's notice shall set forth, in addition to the information required by Section 1.11, as to each person whom the shareholder proposes to nominate for election or reelection as a Director: (a) the name, age, business address and residence address of such person, (b) the principal occupation or employment of such person, (c) the class and number of shares of the Corporation which are beneficially owned by such person, (d) any other information relating to such person that is required to be disclosed in solicitation of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including without limitation such person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected), and (e) the qualifications of the nominee to serve as a Director of the Corporation. No shareholder nomination shall be effective unless made in accordance with the procedures set forth in this Section 1.12. The person presiding at the meeting shall, if the facts warrant, determine and declare to the meeting that a shareholder nomination was not made in accordance with the Bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. ARTICLE II Directors Section 2.1 Number and Terms. The business and affairs of the Corporation shall be managed under the direction of a Board of Directors consisting of between seven (7) and fifteen (15) Directors. The number of directors may change from time to time as provided by these Bylaws or the Restated Articles of Incorporation. The six (6) new directors that are designated to replace the four (4) temporary directors, as described in Section 6.1 of the Restated Articles of Incorporation, may consist in whole or in part of the temporary directors. This paragraph may not be amended other than by the unanimous vote or consent of the Board of Directors. Under Section 11.6(c) of the Restated Articles of Incorporation, the holders of a majority of the outstanding Series A Senior Preferred Stock shall be entitled to elect two (2) (and shall be entitled to elect a majority in accordance with Section 11.6(d) following a Payment Default) directors to the Board of Directors of the Corporation, voting as a separate class. Such right shall be applicable regardless of the number of directors on the board and shall not be limited to instances where the total number of directors is equal to nine (9) or fifteen(15). This paragraph may not be amended other than by the unanimous vote or consent of the Board of Directors. The Directors shall be divided into three (3) groups (with each group containing one-third (1/3) the total as near as may be) whose terms expire on successive years; and at each annual meeting of shareholders, the Directors chosen to succeed those, whose terms then expire, shall be identified as being of the same group as the Directors they succeed and shall be elected for a term expiring at the third succeeding annual meeting of shareholders. Despite the expiration of a Director's term, the Director shall continue to serve until his successor is elected and qualified, or until the earlier of his death, resignation, disqualification or removal, or until there is a decrease in the number of Directors. Except as otherwise provided in the Restated Articles of Incorporation, any vacancy occurring in the Board of Directors, from whatever cause arising, shall be filled by selection of a successor by a majority vote of the remaining members of the Board of Directors (although less than a quorum); provided, however, that if such vacancy or vacancies leave the Board of Directors with no members or if the remaining members of the Board are unable to agree upon a successor or determine not to select a successor, such vacancy may be filled by a vote of the shareholders at a special meeting called for that purpose or at the next annual meeting of shareholders. The term of a Director elected or selected to fill a vacancy shall expire at the end of the term for which such Director's predecessor was elected. In the event the Board of Directors shall increase the total number of its members within the limits provided in the Restated Articles of Incorporation, the Board of Directors shall be authorized to assign such additional member or members to such class of Directors as it deems appropriate and to fill such vacancy for the term of that class to which such additional member or members are assigned. The Directors and each of them shall have no authority to bind the Corporation except when acting as a Board. Section 2.2 Quorum and Vote Required to Take Action. A majority of the whole Board of Directors shall be necessary to constitute a quorum for the transaction of any business, except the filling of vacancies. If a quorum is present when a vote is taken, the affirmative vote of a majority of the Directors present shall be the act of the Board of Directors, unless the act of a greater number is required by the Indiana Business Corporation Law, the Corporation's Restated Articles of Incorporation or these Bylaws. Section 2.3 Annual and Regular Meetings. The Board of Directors shall meet annually, without notice, immediately following the annual meeting of the shareholders, for the purpose of transacting such business as properly may come before the meeting. Other regular meetings of the Board of Directors, in addition to said annual meeting, shall be held on such dates, at such times and at such places as shall be fixed by resolution adopted by the Board of Directors and specified in a notice of each such regular meeting, or otherwise communicated to the Directors. The Board of Directors may at any time alter the date for the next regular meeting of the Board of Directors. Section 2.4 Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the President or a majority of the members of the Board of Directors upon not less than twenty-four (24) hours' notice given to each Director of the date, time and place of the meeting, which notice need not specify the purpose or purposes of the special meeting. Such notice may be communicated in person (either in writing or orally), by telephone, telegraph, teletype or other form of wire or wireless communication, or by mail, and shall be effective at the earlier of the time of its receipt or, if mailed, five (5) days after its mailing. Notice of any meeting of the Board may be waived in writing at any time if the waiver is signed by the Director entitled to the notice and is filed with the minutes or corporate records. A Director's attendance at or participation in a meeting waives any required notice to the Director of the meeting, unless the Director at the beginning of the meeting (or promptly upon the Director's arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 2.5 Written Consents. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each Director, and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 2.5 is effective when the last Director signs the consent, unless the consent specifies a different prior or subsequent effective date, in which case the action is effective on or as of the specified date. A consent signed under this Section 2.5 shall have the same effect as a unanimous vote of all members of the Board and may be described as such in any document. Section 2.6 Participation by Conference Telephone. The Board of Directors may permit any or all Directors to participate in a regular or special meeting by, or through the use of, any means of communication, such as conference telephone, by which all Directors participating may simultaneously hear each other during the meeting. A Director participating in a meeting by such means shall be deemed to be present in person at the meeting. Section 2.7 Committees. (a) The Board of Directors shall appoint an Audit Committee comprised only of nonofficer members of the Board of Directors, which shall arrange the details of the annual audit of the Corporation and shall recommend to the Board of Directors independent auditors to be presented for consideration by the shareholders. The Board of Directors shall also appoint a Compensation Committee, comprised only of nonofficer members of the Board of Directors, which shall make recommendations to the Board of Directors concerning officers' salaries and other compensation. (b) The Board of Directors may create one (1) or more other committees and appoint members of the Board of Directors to serve on them, by resolution of the Board of Directors adopted by a majority of all the Directors in office when the resolution is adopted. Each committee may have one (1) or more members, and all the members of a committee shall serve at the pleasure of the Board of Directors. (c) To the extent specified by the Board of Directors in the resolution creating a committee, each committee may exercise all of the authority of the Board of Directors; provided, however, that a committee may not: (i) authorize dividends or other distributions, except a committee (or a senior executive officer of the Corporation) may authorize or approve a reacquisition of shares or other distribution if done according to a formula or method or within a range prescribed by the Board of Directors; (ii) approve or propose to shareholders action that is required to be approved by shareholders; (iii)fill vacancies on the Board of Directors or on any of its committees; (iv) amend the Corporation's Restated Articles of Incorporation under IC 23-1-38-2; (v) adopt, amend, repeal, or waive provisions of these Bylaws; (vi) approve a plan of merger not requiring shareholder approval; or (vii) authorize or approve the issuance or sale or a contract for sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the Corporation) to do so within limits prescribed by the Board of Directors. (d) Except to the extent inconsistent with the resolutions creating a committee, Sections 2.1 through 2.6 of these Bylaws, which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements and telephone participation in meetings of the Board of Directors, apply to each committee and its members as well. Section 2.8 Compensation. The Board of Directors may fix fees and expenses paid to Directors for attending meetings, and any other compensation paid to Directors by resolution. ARTICLE III Officers Section 3.1 Designation, Selection and Terms. The officers of the Corporation shall consist of a Chief Executive Officer (CEO) and/or President, one or more Vice Presidents, Chief Financial Officer or Treasurer, and Secretary. The Board of Directors may also elect such other officers or assistant officers as it may from time to time determine by resolution creating the office and defining the duties thereof. In addition, the CEO or the President may, by a certificate of appointment creating the office and defining the duties thereof delivered to the Secretary for inclusion with the corporate records, from time to time create and appoint such assistant officers as they deem desirable. The officers of the Corporation shall be elected by the Board of Directors (or appointed by the CEO or the President as provided above) and need not be selected from among the members of the Board of Directors, except for the Chairman of the Board, President and Chief Executive Officer, who shall be a member of the Board of Directors. Any two (2) or more offices may be held by the same person. All officers shall serve at the pleasure of the Board of Directors and, with respect to officers appointed by the CEO or the President, also at the pleasure of such officers. The election or appointment of an officer does not itself create contract rights. Section 3.2 Removal. The Board of Directors may remove any officer at any time with or without cause. An officer appointed by the Chairman of the Board or the President may also be removed at any time, with or without cause, by either of such officers. Vacancies in such offices, however occurring, may be filled by the Board of Directors at any meeting of the Board of Directors (or by appointment by the Chairman of the Board or the President to the extent provided in Section 3.1 of these Bylaws). Section 3.3 Chairman of the Board. The Chairman of the Board shall be the chief executive and principal policy-making officer of the Corporation. Subject to the authority of the Board of Directors, he shall formulate the major policies to be pursued in the administration of the Corporation's affairs. He shall study and make reports and recommendations to the Board of Directors with respect to major problems and activities of the Corporation and shall see that the established policies are placed into effect and carried out under the direction of the President. The Chairman of the Board shall, if present, preside at all meetings of the shareholders and of the Board of Directors. Section 3.4 President. Subject to the provisions of Section 3.3, the President shall be the chief operating officer of the Corporation, shall exercise the powers and perform the duties which ordinarily appertain to that office and shall manage and operate the business and affairs of the Corporation in conformity with the policies established by the Board of Directors and by the Chairman of the Board, or as may be provided for in these Bylaws. In connection with the performance of his duties, he shall keep the Chairman of the Board fully informed as to all phases of the Corporation's activities. In the absence of the Chairman of the Board, the President shall preside at meetings of the shareholders and of the Board of Directors. Section 3.5 Executive Vice President. The Executive Vice President shall perform such duties as are assigned by the Board of Directors or the President, shall perform the duties of the President in case of the absence of the President and the Chairman of the Board, and shall report to the President regarding his official activities. Section 3.6 Vice Presidents. Each Vice President shall have such powers and perform such duties as the Board of Directors may, from time to time, prescribe and as the President may, from time to time, delegate to him, and shall report to the President regarding his official activities. The Board of Directors shall also be empowered to specifically designate said Vice President as "Group Vice President," "Senior Vice President," or with any other title descriptive of the Vice President's position. Section 3.7 Chief Financial Officer. The Chief Financial Officer shall have charge of the Corporation's fiscal affairs and keep and hold all moneys, bonds and securities belonging to the Corporation as ordered by the Board of Directors. He shall keep or cause to be kept a correct account and record of the financial affairs of the Corporation in proper books. He shall report to the President regarding his official activities. He shall also be responsible for causing the Corporation to furnish financial statements to its shareholders pursuant to IC 23-1-53-1. Section 3.8 Treasurer. If the Board of Directors shall not elect a Chief Financial Officer, then it shall elect a Treasurer in lieu of a Chief Financial Officer. Section 3.9 Secretary. The Secretary shall be the custodian of the books, papers and records of the Corporation and of its corporate seal, if any, and shall be responsible for seeing that the Corporation maintains the records required by IC 23-1-52-1 (other than accounting records) and that the Corporation files with the Indiana Secretary of State the annual report required by IC 23-1-53-3. The Secretary shall be responsible for preparing minutes of the meetings of the shareholders and of the Board of Directors and for authenticating records of the Corporation, and he shall perform all of the other duties usual in the office of Secretary of a corporation. The Secretary shall report to the President regarding his official activities. Section 3.10 Assistant Officers. An assistant officer shall have and perform the duties and powers of his principal in case of the principal's absence or inability to act, and his duties shall be such as to properly supplement the duties, powers, and functions of the principal officer and as directed by such principal officer and the Board of Directors; and such assistant officer shall report to his superior officer and to the President as to his official activities. Section 3.11 Salary. The Board of Directors may, at its discretion, from time to time, fix the salary of any officer by resolution included in the minute book of the Corporation. ARTICLE IV Checks All checks, drafts or other orders for payment of money shall be signed in the name of the Corporation by such officers or persons as shall be designated from time to time by resolution adopted by the Board of Directors and included in the minute book of the Corporation; and in the absence of such designation, such checks, drafts or other orders for payment shall be signed by either the President or the Chief Financial Officer. If no Chief Financial Officer position exists, then said responsibilities shall be performed by the Treasurer. ARTICLE V Loans Any one of the Chairman of the Board, Chief Executive Officer and/or President, Executive Vice President, or any Vice President, Secretary, and/or Chief Financial Officer or Treasurer, is authorized and empowered to negotiate and make any loan for money from any bank or banking institution or other corporation or person, and to make, deliver and fully execute any promissory note, or other evidence of indebtedness for or on account of said borrowed money, and to accept the proceeds of said loan. EX-4 4 0004.txt EXHIBIT 4.26 - POST-CONFIRMATION CREDIT AGREEMENT Exhibit 4.26 POST-CONFIRMATION CREDIT AGREEMENT DATED AS OF OCTOBER 20, 2000 AMONG TOKHEIM CORPORATION, VARIOUS SUBSIDIARIES THEREOF AS BORROWERS, VARIOUS FINANCIAL INSTITUTIONS, AMSOUTH BANK, AS DOCUMENTATION AGENT, AND ABN AMRO BANK N.V., AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS SECTION 1 DEFINITIONS.......................................................................1 1.1 Definitions...................................................................1 1.2 Other Interpretive Provisions................................................24 SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES..................................................25 2.1 Commitments and Loans........................................................25 2.1.1 Revolving Loan Commitment...............................25 2.1.2 Tranche A Term Loans....................................25 2.1.3 Tranche B Term Loans....................................25 2.1.4 Special Loans...........................................25 2.1.5 L/C Commitment..........................................26 2.2 Loan Procedures..............................................................26 2.2.1 Various Types of Loans..................................26 2.2.2 Borrowing Procedures....................................26 2.2.3 Conversion and Continuation Procedures..................27 2.3 Letter of Credit Procedures..................................................28 2.3.1 L/C Applications........................................28 2.3.2 Participations in Letters of Credit.....................28 2.3.3 Reimbursement Obligations...............................29 2.3.4 Limitation on Obligations of Issuing Lender.............29 2.3.5 Funding by Revolving Lenders to Issuing Lender..........30 2.3.6 Prior Letters of Credit.................................30 2.4 Commitments Several..........................................................32 2.5 Certain Conditions...........................................................32 SECTION 3 NOTES EVIDENCING LOANS.......................................................32 3.1 Notes........................................................................32 3.2 Recordkeeping................................................................33 SECTION 4 INTEREST.....................................................................33 4.1 Interest Rates...............................................................33 4.2 Interest Payment Dates; Capitalization of Interest on Special Loans..........34 4.3 Setting and Notice of Eurodollar Rates.......................................34 4.4 Computation of Interest......................................................34 SECTION 5 FEES.........................................................................35 5.1 Facility Fees................................................................35 5.2 Upfront Fee..................................................................35 5.3 Letter of Credit Fees........................................................35 5.4 Administrative Agent's Fees..................................................35 SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT AMOUNT; PREPAYMENTS; TREATMENT OF PROCEEDS...................................36 6.1 Reduction or Termination of the Revolving Commitment Amount..................36 6.1.1 Voluntary Reduction or Termination of the Revolving Commitment Amount.....................................36 6.1.2 Mandatory Reductions of Revolving Commitment Amount................................................36 6.1.3 Reductions of the Revolving Commitment Amount Pro Rata Among Revolving Lenders..........................36 6.2 Prepayments..................................................................36 6.2.1 Voluntary Prepayments...................................36 6.2.2 Mandatory Prepayments...................................36 6.3 All Prepayments..............................................................39 6.4 Prepayment Premium...........................................................39 6.5 Treatment of Certain Proceeds................................................39 SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES..............................41 7.1 Making of Payments...........................................................41 7.2 Application of Certain Payments..............................................42 7.3 Due Date Extension...........................................................42 7.4 Setoff.......................................................................42 7.5 Proration of Payments........................................................43 7.6 Taxes........................................................................43 SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.........................................................45 8.1 Increased Costs..............................................................45 8.2 Basis for Determining Interest Rate Inadequate or Unfair.....................46 8.3 Changes in Law Rendering Eurodollar Loans Unlawful...........................47 8.4 Funding Losses...............................................................47 8.5 Right of Lenders to Fund through Other Offices...............................47 8.6 Discretion of Lenders as to Manner of Funding................................47 8.7 Mitigation of Circumstances; Replacement of Lenders..........................48 8.8 Conclusiveness of Statements; Survival of Provisions.........................48 SECTION 9 REPRESENTATIONS AND WARRANTIES...............................................49 9.1 Organization.................................................................49 9.2 Authorization; No Conflict...................................................49 9.3 Validity and Binding Nature..................................................49 9.4 Financial Condition..........................................................49 9.5 No Material Adverse Change...................................................49 9.6 Litigation...................................................................50 9.7 Assets and Properties........................................................50 9.8 Subsidiaries.................................................................50 9.9 ERISA........................................................................50 9.10 Investment Company Act.......................................................51 9.11 Public Utility Holding Company Act...........................................51 9.12 Regulation U.................................................................52 9.13 Taxes........................................................................52 9.14 Compliance with Environmental Laws...........................................52 9.15 Insurance....................................................................52 9.16 Real Property................................................................53 9.17 Information..................................................................53 9.18 Intellectual Property........................................................53 9.19 Burdensome Obligations.......................................................53 9.20 Labor Matters................................................................53 9.21 No Default...................................................................53 9.22 Contingent Obligations.......................................................54 9.23 Foreign Employee Benefit Matters.............................................54 9.24 Capitalization of the Company; Reservation of Shares; Other Matters Relating to Capital Stock............................54 SECTION 10 COVENANTS....................................................................55 10.1 Reports, Certificates and Other Information..................................55 10.1.1 Annual Report...........................................55 10.1.2 Interim Reports.........................................55 10.1.3 Compliance Certificates.................................56 10.1.4 Reports to the SEC and to Shareholders..................56 10.1.5 Notice of Default and Litigation........................56 10.1.6 Borrowing Base Certificates.............................57 10.1.7 Projections.............................................57 10.1.8 Management Reports......................................57 10.1.9 Cash Flow Forecasts.....................................57 10.1.10 Subordinated Debt Notices...............................58 10.1.11 No Default Certificate..................................58 10.1.12 Other Information.......................................58 10.2 Books, Records and Inspections...............................................58 10.3 Maintenance of Property; Insurance...........................................59 10.4 Compliance with Laws; Payment of Taxes and Liabilities.......................59 10.5 Maintenance of Existence, etc................................................59 10.6 Financial Covenants..........................................................60 10.6.1 Fixed Charge Coverage Ratio.............................60 10.6.2 Interest Coverage Ratio.................................60 10.6.3 Senior Debt to EBITDA Ratio.............................61 10.6.4 Total Debt to EBITDA Ratio..............................61 10.6.5 EBITDA..................................................62 10.6.6 Capital Expenditures....................................62 10.7 Limitations on Debt..........................................................62 10.8 Liens........................................................................64 10.9 Restricted Payments..........................................................65 10.10 Mergers, Consolidations, Sales...............................................66 10.11 Modification of Organizational Documents.....................................66 10.12 Use of Proceeds..............................................................66 10.13 Further Assurances...........................................................66 10.14 Transactions with Affiliates.................................................68 10.15 ERISA and Foreign Employee Benefit Compliance................................68 10.16 Environmental Matters........................................................70 10.17 Unconditional Purchase Obligations...........................................70 10.18 Inconsistent Agreements; Subsidiary Support..................................70 10.19 Business Activities..........................................................71 10.20 Investments..................................................................71 10.21 Restriction of Amendments to ESOP and Related Documents......................72 10.22 Fiscal Year..................................................................72 10.23 Prepayments, etc. of Debt....................................................73 SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC....................................73 11.1 Initial Credit Extension.....................................................73 11.1.1 Notes...................................................73 11.1.2 Resolutions.............................................73 11.1.3 Incumbency and Signature Certificates...................74 11.1.4 Guaranty................................................74 11.1.5 Security Agreement......................................74 11.1.6 Pledge Agreement........................................74 11.1.7 Real Estate Documents...................................74 11.1.8 Opinions of Counsel.....................................75 11.1.9 Restated Charter; Lender Preferred; Board Designees.....75 11.1.10 Series A Warrant Agreement..............................75 11.1.11 Warrant Certificates....................................75 11.1.12 Registration Rights Agreement...........................75 11.1.13 Insurance...............................................75 11.1.14 [Intentionally Left Blank.].............................75 11.1.15 Filings, Registrations and Recordings...................76 11.1.16 Closing Certificate.....................................76 11.1.17 Borrowing Base Certificate..............................76 11.1.18 Charter and Bylaws......................................76 11.1.19 Plan Documents..........................................76 11.1.20 Other...................................................76 11.2 Conditions...................................................................76 11.2.1 Compliance with Warranties, No Default, etc.............76 11.2.2 Borrowing Certificate...................................77 11.3 Condition to Effectiveness...................................................77 SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT...........................................77 12.1 Events of Default............................................................77 12.1.1 Non-Payment of the Loans, etc. ....................................77 12.1.2 Non-Payment of Other Debt..........................................77 12.1.3 Other Material Obligations.........................................78 12.1.4 Bankruptcy, Insolvency, etc........................................78 12.1.5 Non-Compliance with Loan Documents.................................78 12.1.6 Representations and Warranties.....................................78 12.1.7 Plans..............................................................78 12.1.8 Judgments..........................................................79 12.1.9 Invalidity of Loan Documents, etc..................................79 12.1.10 Invalidity of Subordination Provisions, etc........................79 12.1.11 Material Adverse Effect............................................79 12.1.12 Change in Control..................................................79 12.2 Effect of Event of Default...................................................80 SECTION 13 THE AGENTS...................................................................80 13.1 Appointment and Authorization................................................80 13.2 Delegation of Duties.........................................................81 13.3 Liability of Administrative Agent............................................81 13.4 Reliance by Administrative Agent.............................................81 13.5 Notice of Default............................................................82 13.6 Credit Decision..............................................................82 13.7 Indemnification..............................................................82 13.8 Administrative Agent in Individual Capacity..................................83 13.9 Successor Administrative Agent...............................................83 13.10 Collateral Matters...........................................................84 13.11 Funding Reliance.............................................................84 SECTION 14 GENERAL......................................................................85 14.1 Waiver; Amendments...........................................................85 14.2 Confirmations................................................................87 14.3 Notices......................................................................87 14.4 Computations.................................................................87 14.5 Regulation U.................................................................88 14.6 Costs, Expenses and Taxes....................................................88 14.7 Subsidiary References........................................................88 14.8 Captions.....................................................................88 14.9 Assignments; Participations..................................................88 14.9.1 Assignments.............................................88 14.9.2 Participations..........................................90 14.10 Governing Law................................................................90 14.11 Counterparts.................................................................91 14.12 Successors and Assigns.......................................................91 14.13 Indemnification by the Borrowers.............................................91 14.14 Nonliability of Lenders......................................................91 14.15 Confidentiality..............................................................92 14.16 Forum Selection and Consent to Jurisdiction..................................92 14.17 Waiver of Jury Trial.........................................................93 14.18 Power of Attorney............................................................93 14.19 Addition and Termination of Subsidiaries as Borrowers........................94 14.20 Treatment of Pre-Petition ESOP Loans.........................................94 14.21 Treatment of Certain Borrowing Subsidiaries under the Pre-Petition Credit Agreement. ..................................................................95 SECTION 15 GUARANTY.....................................................................95 15.1 The Guaranty.................................................................95 15.2 Guaranty Unconditional.......................................................95 15.3 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances.............................96 15.4 Waiver.......................................................................96 15.5 Stay of Acceleration.........................................................96 SCHEDULES SCHEDULE I Initial Subsidiary Borrowers SCHEDULE II Properties Designated for Sale SCHEDULE 2.1 Lenders and Percentages SCHEDULE 2.3.6 Prior Letters of Credit SCHEDULE 9.6 Litigation SCHEDULE 9.8 Subsidiaries SCHEDULE 9.9 Plans SCHEDULE 9.15 Insurance SCHEDULE 9.16 Real Property SCHEDULE 9.20 Labor Matters SCHEDULE 9.24 Capitalization SCHEDULE 10.8 Permitted Existing Liens SCHEDULE 10.20 Permitted Existing Investments SCHEDULE 11.1.7 Mortgaged Properties SCHEDULE 14.3 Addresses for Notices EXHIBITS EXHIBIT A Form of Note (Section 3.1) EXHIBIT B Form of Compliance Certificate (Section 10.1.3) EXHIBIT C Form of Cash Flow Report (Section 10.1.9) EXHIBIT D Form of Borrowing Base Certificate (Section 1.1) EXHIBIT E Form of Assignment Agreement (Section 14.9.1) EXHIBIT F-1 Form of Opinion of Skadden Arps Slate Meagher & Flom (Section 11.1.8) EXHIBIT F-2 Form of Opinion of Ice Miller Donadio & Ryan (Section 11.1.8) EXHIBIT F-3 Form of Opinion of Norman L. Roelke (Section 11.1.8) EXHIBIT G Form of Guaranty (Section 1.1) EXHIBIT H Form of Security Agreement (Section 1.1) EXHIBIT I Form of Pledge Agreement (Section 1.1) EXHIBIT J Form of Restated Charter (Section 1.1) EXHIBIT K Form of Series A Warrant Agreement (Section 1.1) EXHIBIT L Form of Warrant Certificate (Section 1.1) EXHIBIT M Form of Assumption Letter (Section 1.1) EXHIBIT N Form of Borrowing Certificate (Section 11.2.2)
POST-CONFIRMATION CREDIT AGREEMENT THIS POST-CONFIRMATION CREDIT AGREEMENT dated as of October 20, 2000 (this "Agreement") is entered into among TOKHEIM CORPORATION, an Indiana corporation (the "Company"), the other Borrowers (defined below), the financial institutions that are or may from time to time become parties hereto (together with their respective successors and assigns, the "Lenders"), AMSOUTH BANK, as documentation agent for the Lenders, and ABN AMRO BANK N.V. (in its individual capacity, "ABN"), as administrative agent for the Lenders. Recitals WHEREAS, on August 28, 2000 (the "Filing Date"), the Company, together with its Subsidiaries Gasboy International, Inc., Tokheim Investment Corp., Management Solutions, Inc., Sunbelt Hose & Petroleum Equipment Inc., Tokheim Services LLC and Tokheim RPS, LLC, (collectively with the Company, the "Debtors"), filed, with the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code"); WHEREAS, on the Filing Date the Debtors filed a Joint Plan of Reorganization of Tokheim Corporation and its Subsidiary Debtors in the Bankruptcy Court (the "Plan of Reorganization") and wish to obtain working capital financing upon the effectiveness thereof; WHEREAS, all of the secured claims of the Lenders with respect to obligations of the Company and its Subsidiaries under the Pre-Petition Credit Agreement (defined below) prior to the effectiveness of the Plan of Reorganization are to be evidenced by loans hereunder; and WHEREAS, the Lenders have agreed to make available to the Borrowers a revolving credit facility (which includes letters of credit), and to restructure their existing secured claims owing by the Company and its Subsidiaries into special loans and term loans, in each case upon the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows: SECTION 1 DEFINITIONS. 1.1 Definitions. When used herein the following terms shall have the following meanings: ABN - see the Preamble. Account Debtor means any Person who is obligated to the Company or any Domestic Subsidiary under an Account Receivable. Account Receivable means, with respect to any Person, any right of such person to payment for goods sold or leased or for services rendered, whether or not evidenced by an instrument or chattel paper and whether or not yet earned by performance. Administrative Agent means ABN in its capacity as administrative agent for the Lenders hereunder and any successor thereto in such capacity. Affected Loan - see Section 8.3. Affiliate of any Person means (i) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (ii) for purposes of Section 10.14 only, any officer or director of such Person. A Person shall be deemed to be "controlled by" any other Person if such Person possesses, directly or indirectly, power to vote 5% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Agents means the Administrative Agent and the Documentation Agent. Agreement - see the Preamble. Asset Sale means the sale, lease, assignment or other transfer for value (each a "Disposition") by the Company or any Subsidiary to any Person (other than the Company or any Subsidiary) of any asset or right of the Company or such Subsidiary other than (i) the sale or lease of inventory in the ordinary course of business, (ii) Dispositions permitted by Section 10.10(e) and (iii) Dispositions the Net Cash Proceeds of which do not exceed $100,000 in the aggregate in any Fiscal Year. Assignment Agreement - see Section 14.9.1. Assumption Letter means a letter of a Domestic Subsidiary of the Company addressed to the Lenders in substantially the form of Exhibit M pursuant to which such Subsidiary agrees to become a Borrower and agrees to be bound by the terms and conditions hereof. Attorney Costs means, with respect to any Person, all reasonable fees and charges of any counsel to such Person, the reasonable allocable cost of internal legal services of such Person, all reasonable disbursements of such internal counsel and all court costs and similar reasonable legal expenses. Bankruptcy Code - see the recitals. Base Rate means at any time the greater of (a) the Federal Funds Rate plus 0.5% and (b) the Prime Rate. Base Rate Loan means any Loan which bears interest at or by reference to the Base Rate. Benefit Plan means a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan) subject to Title IV of ERISA in respect of which the Company or any ERISA Affiliate is an "employer" as defined in Section 3(5) of ERISA or with respect to which the Company or any ERISA Affiliate has any potential liability. Borrower means, as applicable, the Company, the Subsidiaries listed on Schedule I and any other Domestic Subsidiary designated by the Company as a Borrower hereunder pursuant to Section 14.19. Borrowing Base means an amount equal to the total of (a) 80% of the unpaid amount (net of such reserves and allowances as the Administrative Agent deems necessary in its reasonable discretion) of all Eligible Accounts Receivable (not including more than $2,500,000 of "bill and hold" Accounts Receivable) plus (b) 55% of the value of all Eligible Inventory comprising raw materials valued at the lower of cost or market (net of such reserves and allowances as the Administrative Agent deems necessary in its reasonable discretion) plus (c) 85% of the value of all Eligible Inventory comprising finished goods valued at the lower of cost or market (net of such reserves and allowances as the Administrative Agent deems necessary in its reasonable discretion) plus (d) the lesser of (x) 20% of the gross book value of all Eligible PP&E (net of such reserves and allowances as the Administrative Agent deems necessary in its reasonable discretion) and (y) $18,000,000 minus (e) any Proceeds Reserve. Borrowing Base Certificate means a certificate substantially in the form of Exhibit D. Borrowing Base Shortfall means, at any time, the amount by which the Revolving Outstandings exceed the Revolving Commitment Amount at such time. Borrowing Certificate - see Section 2.2.2. Budget - see Section 10.1.7. Business Day means any day (other than a Saturday or Sunday) on which ABN is open for commercial banking business in Chicago, Illinois and, in the case of a Business Day which relates to a Eurodollar Loan, on which dealings are carried on in the London interbank eurodollar market. Capital Expenditures means all expenditures which, in accordance with GAAP, would be required to be classified as expenditures for the purchase or other acquisition of any asset classified as a fixed or capital asset in accordance with GAAP, but excluding expenditures made in respect of leasehold improvements to the extent the Company or the applicable Subsidiary has been reimbursed therefor by the applicable lessor and excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (i) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (ii) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced. Capital Lease means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person. Capitalized Interest - see Section 4.2. Capital Stock means the equity securities of a corporation or societe anonyme, the voting partnership interests of a partnership and the voting membership interests of a limited liability company and any warrants, options or other rights in respect thereof. Cash Collateralize means to deliver cash collateral to the Administrative Agent, to be held as cash collateral for outstanding Letters of Credit, pursuant to documentation satisfactory to the Administrative Agent. Derivatives of such term have corresponding meanings. Cash Equivalent Investment means, at any time, (a) any evidence of Debt, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l by Standard & Poor's Ratings Group ("S&P") or P-l by Moody's Investors Service, Inc. ("Moody's"), (c) any certificate of deposit (or time deposits represented by such certificates of deposit) or banker's acceptance, maturing not more than one year after such time, or overnight Federal Funds transactions that are issued or sold by any Lender or its holding company or by a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000, (d) any repurchase agreement entered into with any Lender (or other commercial banking institution of the stature referred to in clause (c)) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder and (e) to the extent the same are held by Foreign Subsidiaries, (i) marketable direct obligations issued or unconditionally guaranteed by the governments of France, the United Kingdom, Germany or The Netherlands and backed by the full faith and credit of such government, (ii) Euro, Deutsche Marks, French Francs, Dutch Guilders and Sterling and Eurocurrency certificates of deposit and time deposits, bankers' acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of Germany, France, The Netherlands or the United Kingdom, or its branches or agencies, (iii) shares of money market, mutual or similar funds having assets in excess of $100,000,000 or the equivalent amount in Euro, Deutsche Marks, French Francs, Dutch Guilders or Sterling and the investments of which are limited to investment grade securities (i.e., securities rated at least Baa by Moody's or at least BBB by S&P) and (iv) commercial paper of German, French, Dutch or United Kingdom banks and bank holding companies and their subsidiaries and German, French, Dutch and United Kingdom finance, commercial, industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody's. Chapter 11 Cases means the chapter 11 cases of the Debtors under case nos. 00-03454(PJW) through 00-03460(PJW) in the Bankruptcy Court. Closing Date - see Section 11.1. Code means the Internal Revenue Code of 1986. Collateral means all property and interests in property now owned or hereafter acquired by the Company or any of its Subsidiaries upon which a security interest, lien or mortgage is granted to the Administrative Agent, for the benefit of the Lenders, whether under the Security Agreement, under the Collateral Documents or under any of the other Loan Documents to secure obligations under any Loan Document and any Hedging Obligations with any Lender or any Affiliate of a Lender. Collateral Access Agreement means an agreement in form and substance reasonably satisfactory to the Administrative Agent pursuant to which a mortgagee or lessor of real property on which Collateral is stored or otherwise located, or a warehouseman, processor or other bailee of Inventory, acknowledges the Liens of the Administrative Agent and waives any Liens held by such Person on such property, and, in the case of any such agreement with a mortgagee or lessor, permits the Administrative Agent access to and use of such real property for a reasonable amount of time following the occurrence and during the continuance of an Event of Default to assemble, complete and sell any Collateral stored or otherwise located thereon. Collateral Documents means the Security Agreement, each Mortgage, the Pledge Agreement and any other agreement or instrument pursuant to which the Company, any Subsidiary or any other Person grants collateral to the Administrative Agent for the benefit of the Lenders. Commercial Letter of Credit means any Letter of Credit which is drawable upon presentation of a sight draft and other documents evidencing the sale or shipment of goods purchased by the Company or any Subsidiary in the ordinary course of business. Commitment means, as to any Lender, such Lender's commitment to make Loans, and to issue or participate in Letters of Credit, under this Agreement. The initial amount of each Lender's Tranche A Term Loan, Tranche B Term Loan, Special Loan and Revolving Loan Percentage of the Revolving Commitment Amount is set forth on Schedule 2.1. Common Stock - see Section 9.24. Company - see the Preamble. Computation Period means each period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter. Confirmation Order means an order of the Bankruptcy Court confirming the Plan of Reorganization pursuant to Section 1129 of the Bankruptcy Code, which order shall be reasonably satisfactory to the Agents and the Majority Lenders. Consolidated Net Income means, with respect to the Company and its Subsidiaries for any period, the net income (or loss) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, excluding any gains or losses from Asset Sales, any extraordinary gains or losses and any gains or losses from discontinued operations. Controlled Group means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with the Company or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA. Debt of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) the principal component of all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person, (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and banker's acceptances issued for the account of such Person (including the Letters of Credit), (f) all Hedging Obligations of such Person, (g) all Suretyship Liabilities of such Person, (h) all Debt of any partnership of which such Person is a general partner (except to the extent any such Debt is expressly non-recourse to such general partner) and (i) any sale, assignment or discounting of Accounts Receivable, "traites" (within the meaning of French law) or similar post-dated checks or invoices of such Person, together with any obligation of such Person to pay discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection therewith. For purposes of this Agreement, whenever the amount of any sale, assignment or discounting of Accounts Receivable, "traites" or post-dated checks or invoices is to be calculated, the amount thereof shall be the amount of the unrecovered capital or principal investment of the purchaser thereof, excluding amounts representing yield or interest earned on such investment. Debtors - see the recitals. Designated Proceeds - see Section 6.2.2(a). DIP Credit Agreement means the Post-Petition Credit Agreement dated as of August 29, 2000 among the Debtors, ABN AMRO Bank N.V., as administrative agent, and the lenders party thereto, as amended prior to the Closing Date. Documentation Agent means AmSouth Bank, in its capacity as documentation agent for the Lenders. Dollar Amount means at any time, in relation to an amount denominated in a currency other than United States Dollars, the amount of United States Dollars which could be purchased with such amount at the prevailing foreign exchange spot rate at such time. DOL means the Department of Labor and any Person succeeding to the functions thereof. Dollar and the sign "$" mean lawful money of the United States of America. Domestic Subsidiary means each Subsidiary other than a Foreign Subsidiary. EBITDA means, for any period, Consolidated Net Income for such period plus, to the extent deducted in determining such Consolidated Net Income, Interest Expense, income tax expense, depreciation and amortization expenses for such period plus the portion of consolidated net income attributable to minority interests in the Company's Subsidiaries not included in the calculation of Consolidated Net Income plus, to the extent deducted in determining such Consolidated Net Income, any non-recurring expenses related to the reorganization and restructuring of the Company and its Subsidiaries in connection with the Chapter 11 Cases plus, to the extent deducted in determining such Consolidated Net Income, to the extent incurred prior to the date hereof and to the extent the same are included in the definition of "EBITDA" for such period under the Pre-Petition Credit Agreement (as in effect immediately prior to Plan Effectiveness) pursuant to clause (x) of such definition (and subject to any limitation in such clause), any non-recurring expenses related to the reorganization and restructuring of the Company (including the businesses purchased pursuant to the Sofitam Acquisition and the Schlumberger Acquisition, and MSI) which are charged to operating expenses when and as charged plus, to the extent deducted in determining such Consolidated Net Income and without duplication, any non-recurring employee severance expenses which are charged to operating expenses when and as charged in an aggregate amount not to exceed $15,000,000 plus, to the extent deducted in determining such Consolidated Net Income and without duplication, any non-recurring expenses related to the reorganization and restructuring of the Company which are charged to operating expenses when and as charged in an aggregate amount not to exceed $2,000,000. Eligible Account Receivable means an Account Receivable owing to the Company or (so long as the same is a Subsidiary) Gasboy which meets each of the following requirements: (1) it arises from the sale of goods or the rendering of services by the Company or Gasboy; and if it arises from the sale of goods, (i) such goods comply with such Account Debtor's specifications (if any) and (except in connection with "bill and hold" Accounts Receivable in the ordinary course of business consistent with past practice) have been delivered to such Account Debtor and (ii) the Company or Gasboy, as applicable, has possession of, or if requested by the Administrative Agent has delivered to the Administrative Agent, delivery receipts evidencing such delivery; (2) it (a) is subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Agents and the Lenders and (b) is not subject to any other assignment, claim or Lien; (3) it is a valid, legally enforceable and unconditional obligation of the Account Debtor with respect thereto, and is not subject to any counterclaim, credit, allowance, discount, rebate or adjustment by the Account Debtor with respect thereto, or to any claim by such Account Debtor denying liability thereunder in whole or in part (provided, that in the event any counterclaim, credit, allowance, rebate or adjustment is asserted, or discount is granted, the Account Receivable shall only be ineligible pursuant to this clause (3) to the extent of the same); (4) there is no bankruptcy, insolvency or liquidation proceeding pending or threatened by or against the Account Debtor with respect thereto and the Account Debtor with respect thereto shall not be insolvent or have admitted in writing its inability to pay its debts generally as they become due; (5) it is not an Account Receivable arising from a "sale on approval," "sale or return" or "consignment" or subject to any other repurchase or return agreement and it is not an Account Receivable arising from a "bill and hold" except in connection with "bill and hold" Accounts Receivable in the ordinary course of business consistent with past practice; (6) except in connection with "bill and hold" Accounts Receivable in the ordinary course of business consistent with past practice, it is not an Account Receivable with respect to which possession and/or control of the goods sold giving rise thereto is held, maintained or retained by the Company or any Subsidiary (or by any agent or custodian of the Company or any Subsidiary) for the account of or subject to further and/or future direction from the Account Debtor with respect thereto; (7) it arises in the ordinary course of business of the Company or Gasboy, as applicable; (8) if the Company maintains a credit limit for an Account Debtor, the aggregate dollar amount of Accounts Receivable due from such Account Debtor, including such Account Receivable, does not exceed such credit limit (provided that if any such credit limit is exceeded, only the aggregate dollar amount in excess of such credit limit shall be ineligible pursuant to this clause (8)); (9) such Account Receivable is not more than (a) 90 days past the due date thereof or (b) 125 days past the original invoice date thereof, in each case according to the original terms of sale; (10) the Account Debtor with respect thereto is not the Company or an Affiliate of the Company; and (11) such Account Receivable is denominated in Dollars and is payable in the United States. An Account Receivable which is at any time an Eligible Account Receivable, but which subsequently fails to meet any of the foregoing requirements, shall forthwith cease to be an Eligible Account Receivable. Further, with respect to any Account Receivable, if the Administrative Agent or the Required Revolving Lenders at any time hereafter determine in their reasonable discretion that the prospect of payment or performance by the Account Debtor with respect thereto is materially impaired for any reason whatsoever, such Account Receivable shall cease to be an Eligible Account Receivable after notice of such determination is given to the Company. Eligible Assignee means (i) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $500,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having a combined capital and surplus of at least $500,000,000, provided that such bank is acting through a branch or agency located in the United States; (iii) a Person that is primarily engaged in the business of commercial banking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary or (C) a Person of which a Lender is a Subsidiary; or (iv) an insurance company, pension fund, mutual fund, finance company or similar financial institution having a net worth of at least $250,000,000. Eligible Inventory means Inventory of the Company or (so long as the same is a Subsidiary) Gasboy which meets each of the following requirements: (1) it (a) is subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Agents and the Lenders and (b) is not subject to any other assignment, claim or Lien; (2) in the case of finished goods, it is salable; (3) it is in the possession and control of the Company or Gasboy and it is stored and held in facilities owned by the Company or Gasboy or, if such facilities are not so owned, the Administrative Agent is in possession of a Collateral Access Agreement with respect thereto; (4) it is not Inventory produced in violation of the Fair Labor Standards Act and subject to the "hot goods" provisions contained in Title 29 U.S.C.ss.215; (5) it is not subject to any agreement which would restrict the Administrative Agent's ability to sell, assign or otherwise dispose of such Inventory; (6) it is located in the United States or in any territory or possession of the United States that has adopted Article 9 of the Uniform Commercial Code; (7) it is not "in transit" to the Company or Gasboy or held by the Company or Gasboy on consignment; (8) no event has occurred, and no condition exists, with respect to such Inventory that would substantially impede the ability of the Company (or Gasboy, as applicable) to continue to use or sell such item of Inventory in the ordinary course of business; (9) it is not evidenced by an Account Receivable; and (10) the Administrative Agent shall not have determined in its reasonable discretion that it is unacceptable due to age, type, category, quality, quantity and/or any other reason whatsoever. Inventory which is at any time Eligible Inventory but which subsequently fails to meet any of the foregoing requirements shall forthwith cease to be Eligible Inventory. Eligible PP&E means plants, buildings, furniture, fixtures and equipment owned by the Company or (so long as the same is a Subsidiary) Gasboy which meet the following requirements: (1) the Company or Gasboy is the lawful owner of such plants, buildings, furniture, fixtures or equipment, free and clear of all security interests, and such ownership is protected against all persons and entities whatsoever; (2) such plants, buildings, furniture, fixtures or equipment are in good condition, repair and working order and are insured in accordance with Section 10.3; (3) the Administrative Agent is the holder of a first priority security interest for the benefit of the Agents and the Lenders in the ownership interest of the Company or Gasboy therein; and (4) it is otherwise satisfactory to the Administrative Agent. Plants, buildings, furniture, fixtures or equipment which at any time are Eligible PP&E, but which subsequently fail to meet any of the foregoing requirements, shall forthwith cease to be Eligible PP&E. Environmental Laws - see Section 9.14. ERISA means the Employee Retirement Income Security Act of 1974. ERISA Affiliate means any (i) corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Company, (ii) partnership or other trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Company and (iii) member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Company, any corporation described in clause (i) above or any partnership or trade or business described in clause (ii) above. Eurocurrency Reserve Percentage means, with respect to any Eurodollar Loan for any Interest Period, a percentage (expressed as a decimal) equal to the daily average during such Interest Period of the percentage in effect on each day of such Interest Period, as prescribed by the FRB, for determining the aggregate maximum reserve requirements applicable to "Eurocurrency Liabilities" pursuant to Regulation D or any other then applicable regulation of the FRB which prescribes reserve requirements applicable to "Eurocurrency Liabilities" as presently defined in Regulation D. ESOP means the Retirement Savings Plan for Employees of Tokheim Corporation, effective July 1, 1989, and subsequently amended by the First, Second, Third and Fourth Amendments thereto adopted prior to the date of this Agreement. ESOP Preferred Stock - see Section 9.24. Eurodollar Loan means any Loan which bears interest at a rate determined by reference to the Eurodollar Rate (Reserve Adjusted). Eurodollar Office means with respect to any Lender the office or offices of such Lender which shall be making or maintaining the Eurodollar Loans of such Lender hereunder. A Eurodollar Office of any Lender may be, at the option of such Lender, either a domestic or foreign office. Eurodollar Rate means, with respect to any Eurodollar Loan for any Interest Period, a rate per annum equal to the offered rate for deposits in Dollars for a period equal or comparable to such Interest Period which appears on Telerate page 3750 as of 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period. "Telerate Page 3750" means the display designated as "Page 3750" on the Telerate Service (or such other page as may replace page 3750 on that service or such other service as may be nominated by the British Bankers' Association as the information vendor for the purpose of displaying British Bankers' Association Interest Settlement Rates for Dollar deposits). Eurodollar Rate (Reserve Adjusted) means, with respect to any Eurodollar Loan for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) determined pursuant to the following formula: Eurodollar Rate = Eurodollar Rate --------------- (Reserve Adjusted) 1-Eurocurrency Reserve Percentage. Event of Default means any of the events described in Section 12.1. Excess Cash Flow means, for any period, the remainder of (a) EBITDA for such period, less (b) the sum, without duplication, of (i) scheduled repayments of principal of Special Loans made during such period (other than payments made or financed, directly or indirectly, with the proceeds of issuance of equity securities or Subordinated Debt issued by the Company or any Subsidiary), and all scheduled reductions in the Revolving Commitment Amount occurring during such period, plus (ii) voluntary prepayments of the Term Loans and Special Loans pursuant to Section 6.2.1 during such period (other than payments made or financed, directly or indirectly, with the proceeds of issuance of equity securities or Subordinated Debt issued by the Company or any Subsidiary), plus (iii) cash payments made in such period with respect to Capital Expenditures, plus (iv) all federal, state, local and foreign income taxes paid in cash by the Company and its Subsidiaries during such period, plus (v) cash Interest Expense of the Company and its Subsidiaries during such period, plus (vi) to the extent reflected in determining EBITDA for such period, cash payments made by the Company and its Subsidiaries in respect of employee severance expense and reorganization and restructuring expenses. Existing Secured Lender Claims means all amounts payable by the Company or any Subsidiary to the Lenders under the Pre-Petition Credit Agreement and the Pre-Petition Loan Documents and all ESOP Guaranty Obligations (as defined in the Pre-Petition Credit Agreement), including principal, accrued and unpaid interest (including interest accrued from and after the Filing Date) and other costs and expenses. Facility means each of (a) the Commitments to make Revolving Loans and the Revolving Loans made thereunder, (b) the Tranche A Term Loans, (c) the Tranche B Term Loans and (d) the Special Loans. Federal Funds Rate means, for any day, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Bank of New York (including any such successor publication, "H.15(519)") on the preceding Business Day opposite the caption "Federal Funds (Effective)"; or, if for any relevant day such rate is not so published on any such preceding Business Day, the rate for such day will be the arithmetic mean as determined by the Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 A.M. (New York City time) on that day by each of three leading brokers of Federal funds transactions in New York City selected by the Administrative Agent. Filing Date - see the recitals. Fiscal Quarter means a fiscal quarter of a Fiscal Year. Fiscal Year means the fiscal year of the Company and its Subsidiaries, which period shall be the 12-month period ending on November 30 of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., "Fiscal Year 2000") refer to the Fiscal Year ending on November 30 of such calendar year. Fixed Charge Coverage Ratio means, for any Computation Period, the ratio of (a) the total for such period of EBITDA minus the sum of (i) income taxes paid by the Company and its Subsidiaries plus (ii) all Capital Expenditures to (b) the sum for such period of (i) cash Interest Expense plus (ii) scheduled payments of principal of Funded Debt (including the Term Loans and the Special Loans). Foreign Employee Benefit Plan means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of the Company, any of its Subsidiaries or any members of its Controlled Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4). Foreign Pension Plan means any employee benefit plan as described in Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit of employees of the Company, any of its Subsidiaries or any of its ERISA Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA and (iii) under applicable local law, is required to be funded through a trust or other funding vehicle. Foreign Subsidiary shall mean each Subsidiary of the Company organized under the laws of any jurisdiction other than the United States or any state thereof. FRB means the Board of Governors of the Federal Reserve System or any successor thereto. Funded Debt means, as to any Person, all Debt of such Person that matures more than one year from the date of its creation (or is renewable or extendible, at the option of such Person, to a date more than one year from such date). GAAP means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination. Gasboy means Gasboy International, Inc., a Pennsylvania corporation. Group - see Section 2.2.1. Guaranteed Obligations means all indebtedness, liabilities, obligations, covenants and duties of, and all terms and conditions to be observed by, the Borrowers (other than the Company) due or owing to, or in favor or for the benefit of, the Administrative Agent (for the benefit of the Lenders) and the Lenders under the Loan Documents and all Hedging Obligations of Domestic Subsidiaries owing to a Lender or an Affiliate of a Lender, in each case, of every kind, nature and description, direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, now existing or hereafter arising. Guaranty means a guaranty substantially in the form of Exhibit G. Hazardous Substances - see Section 10.16. Hedging Agreement means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices. Hedging Obligation means, with respect to any Person, any liability of such Person under any Hedging Agreement. Indemnified Liabilities - see Section 14.13. Interest Coverage Ratio means, for any Computation Period, the ratio of (a) EBITDA for such Computation Period to (b) cash Interest Expense for such Computation Period. Interest Expense means for any period the consolidated interest expense of the Company and its Subsidiaries for such period (including all imputed interest on Capital Leases). Interest Period means, as to any Eurodollar Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a Eurodollar Loan and ending on the date one, two, three or six months thereafter as selected by the applicable Borrower pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided that: (i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day; (ii) any Interest Period that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; (iii) no Borrower may select any Interest Period for a Revolving Loan which would extend beyond the scheduled Termination Date; and (iv) the Company may not select any Interest Period for a Term Loan in any Facility which would extend beyond the scheduled Termination Date. Inventory has the meaning assigned to such term in the Uniform Commercial Code as in effect in the State of New York on the date hereof. Investment means, relative to any Person, any investment in another Person, whether by acquisition of any debt or equity security, by making any loan or advance or by becoming obligated with respect to a Suretyship Liability in respect of obligations of such other Person (other than prepaid expenses, accounts receivable and travel and similar advances to employees, in each case in the ordinary course of business). IRS means the Internal Revenue Service and any Person succeeding to the functions thereof. Issuing Lender means ABN in its capacity as the issuer of Letters of Credit hereunder and its successors and assigns in such capacity. L/C Application means, with respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form being used by the Issuing Lender at the time of such request for the type of letter of credit requested. Lender - see the Preamble. References to the "Lenders" shall include the Issuing Lender; for purposes of clarification only, to the extent that ABN (or any successor Issuing Lender) may have any rights or obligations in addition to those of the other Lenders due to its status as Issuing Lender, its status as such will be specifically referenced. Lender Preferred means the Series A Senior Preferred Stock of the Company, stated value $10 per share, having the rights, preferences, privileges and restrictions set forth in the Restated Charter. Letter of Credit - see Section 2.1.5. Lien means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise. Loan Documents means this Agreement, the Notes, the L/C Applications, the Guaranty and the Collateral Documents. Loan Party means the Company and each Domestic Subsidiary. Loans means Revolving Loans, Term Loans and Special Loans. MSI means Management Solutions, Inc., a Colorado corporation. Majority Lenders means Lenders having an aggregate Total Percentage of more than 50%. Mandatory Prepayment Event - see Section 6.2.2(a). Margin Stock means any "margin stock" as defined in Regulation U. Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business, properties or prospects of the Company and its Subsidiaries taken as a whole, (b) a material impairment of the ability of the Company or any Subsidiary to perform any of its obligations under any Loan Document to which it is a party or (c) a material adverse effect upon any substantial portion of the Collateral or upon the legality, validity, binding effect or enforceability against the Company or any Subsidiary of any Loan Document to which it is a party. Material Subsidiary means, at any time, any Subsidiary which at such time has assets in excess of $1,000,000 (without giving effect to any writedown of assets after the Closing Date not approved in writing by the Required Lenders). Mortgage means a mortgage, deed of trust, leasehold mortgage or similar instrument granting the Administrative Agent a Lien on real property of the Company or any Subsidiary. Multiemployer Plan means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA subject to Title IV of ERISA and which is contributed to by either the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate has potential liability. Net Cash Proceeds means: (a) with respect to any Asset Sale the aggregate cash proceeds (including cash proceeds received by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when received) received by the Company or any Subsidiary pursuant to such Asset Sale net of (i) the direct costs relating to such sale, transfer or other disposition (including brokerage and sales commissions and legal, accounting and investment banking fees), (ii) reasonable costs and expenses (including those required to be incurred by any state or local government) incurred directly in connection with developing or preparing the related assets for such sale, transfer or other disposition which are incurred in anticipation of such sale, transfer or other disposition (A) after the Company has designated such assets as being marketed for sale, transfer or other disposition in a notice to the Administrative Agent or (B) with respect to the properties previously designated for sale and set forth on Schedule II, in each case which are incurred prior to such sale (or reasonably estimated and escrowed at the time of such sale) and which (other than with respect to the Tokheim Professional Park Development on Dupont Road in Fort Wayne, Indiana) are incurred no more than 180 days prior to the closing of such Asset Sale, (iii) taxes paid or reasonably estimated by the Company to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), (iv) amounts required to be applied to the repayment of any Debt secured by a Lien on the asset subject to such Asset Sale (other than the Loans), (v) appropriate amounts to be provided by the Company or any Subsidiary, as the case may, as a reserve, in accordance with GAAP, against any liabilities associated with the assets sold or disposed of in such Asset Sale and retained by the Company or such Subsidiary, as the case may be, after such Asset Sale, including pension and other post-employment benefit liabilities and liabilities related to environmental matters and liabilities under any indemnification obligation associated with the assets sold or disposed of in such Asset Sale (provided that, if and to the extent that such reserves are no longer required to be maintained in accordance with GAAP, such amount shall amounts shall constitute Net Cash Proceeds, to the extent such amounts would have otherwise constituted Net Cash Proceeds under this clause (a)) and (vi) amounts applied to the replacement of the asset disposed of with another asset performing the same or a similar function within 90 days of such Asset Sale; and (b) with respect to any issuance of equity securities, the aggregate cash proceeds received by the Company or any Subsidiary pursuant to such issuance, net of the direct costs relating to such issuance (including sales and underwriter's commissions); and (c) with respect to any issuance of Debt, the aggregate cash proceeds received by the Company or any Subsidiary pursuant to such issuance, net of the direct costs of such issuance (including up-front fees and placement fees). Note - see Section 3.1. PBGC means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA. Percentage means a Revolving Loan Percentage, a Tranche A Term Loan Percentage, a Tranche B Term Loan Percentage or a Special Loan Percentage, as the context may require. Person means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity. Plan means any employee benefit plan defined in Section 3(3) of ERISA in respect of which the Company or any ERISA Affiliate is an "employer" as defined in Section 3(5) of ERISA or with respect to which the Company or any ERISA Affiliate has any potential liability. Plan Effectiveness means the time the Plan of Reorganization becomes effective in accordance with Article IX thereof. Plan of Reorganization - see the recitals. Pledge Agreement means a Pledge Agreement in the form of Exhibit I. Pre-Petition Credit Agreement means the Second Amended and Restated Credit Agreement dated as of December 14, 1998 among the Company, various borrowing subsidiaries, various lenders and ABN AMRO Bank N.V., as agent, as amended prior to the Filing Date. Pre-Petition Loan Documents means the "Loan Documents" (as defined in the Pre-Petition Credit Agreement). Prime Rate means, for any day, the rate of interest in effect for such day as publicly announced from time to time by ABN as its prime rate (whether or not such rate is actually charged by ABN). Any change in the Prime Rate announced by ABN shall take effect at the opening of business on the day specified in the public announcement of such change. Proceeds - see Section 6.5(a). Proceeds Account - see Section 6.5(a). Proceeds Reserve - see Section 6.5(b). Registration Rights Agreement means the Registration Rights Agreement in the form previously circulated to the Lenders to be entered into among the Company, the Lenders and certain other holders of Common Stock. Regulation D means Regulation D of the FRB. Regulation U means Regulation U of the FRB. Reportable Event means any of the events described in Section 4043 of ERISA for which the 30-day notice requirement has been waived by regulation (other than events described in ERISA ss.4043(c)(1) or (5)). For purposes of this Agreement, the term "Reportable Event" shall not be deemed to refer to the filing by any Debtor of a petition for relief under the Bankruptcy Code on August 28, 2000. Required Lenders means Lenders having an aggregate Total Percentage of more than 50%. Required Revolving Lenders means, at any time, Revolving Lenders having an aggregate Revolving Loan Percentage of more than 50%. Required Special Lenders means, at any time, Special Lenders having an aggregate Special Loan Percentage of more than 50%. Required Tranche A Term Lenders means, at any time, Tranche A Term Lenders having an aggregate Tranche A Term Loan Percentage of more than 50%. Required Tranche B Term Lenders means, at any time, Tranche B Term Lenders having an aggregate Tranche B Term Loan Percentage of more than 50%. Restated Charter means the Amended and Restated Articles of Incorporation of Tokheim Corporation filed by the Company with the Indiana Secretary of State on October 20, 2000, in the form of Exhibit J. Revolving Commitment means, as to any Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans pursuant to Section 2.1.1, as reduced from time to time in accordance herewith. The initial amount of each Revolving Lender's Revolving Commitment is set forth on Schedule 2.1. Revolving Commitment Amount means $47,765,000; provided that on December 15, 2001 the Revolving Commitment Amount shall be automatically and permanently reduced by $7,765,000, on December 15, 2002, the Revolving Commitment Amount shall be automatically and permanently reduced by $10,000,000 and on the Termination Date the Revolving Commitment Amount shall be automatically and permanently reduced by $30,000,000. The Revolving Commitment Amount is also subject to reduction from time to time pursuant to Section 6.1. All reductions to the Revolving Commitment Amount under Section 6.1.1 or 6.1.2 shall be applied to diminish the amount of the scheduled reductions in the first sentence of this definition thereafter becoming effective in inverse order of scheduled occurrence. Revolving Lender means, at any time, a Lender with a Revolving Commitment at such time or which then holds any Revolving Loan. Revolving Loan - see Section 2.1.1. Revolving Loan Percentage means, as to any Revolving Lender, the percentage which (a) the amount of such Revolving Lender's Revolving Commitment (or, after termination of the Revolving Commitments, the outstanding principal amount of such Revolving Lender's Revolving Loans and participations in Letters of Credit) is of (b) the aggregate amount of the Revolving Commitments (or, after termination of the Revolving Commitments, the Revolving Outstandings). Revolving Outstandings means, at any time, the sum of (a) the aggregate principal amount of all outstanding Revolving Loans plus (b) the Stated Amount of all Letters of Credit. SEC means the Securities and Exchange Commission or any other governmental authority succeeding to any of the principal functions thereof. Security Agreement means a security agreement substantially in the form of Exhibit H. Senior Debt means all Total Debt of the Company and its Subsidiaries other than Subordinated Debt. Senior Debt to EBITDA Ratio means, as of the last day of any Fiscal Quarter, the ratio of (i) Senior Debt as of such day to (ii) EBITDA for the Computation Period ending on such day. Series A Warrants means the Warrants to be issued to the Lenders on the Closing Date under the Series A Warrant Agreement to purchase an aggregate of 678,334 shares of Common Stock. Series A Warrant Agreement means the Series A Warrant Agreement in the form of Exhibit K to be entered into among the Company and the Lenders on the Closing Date. Series B Warrants means the Warrants to be issued to the holders of Allowed Junior Subordinated Note Claims (as defined in the Plan of Reorganization) on the Closing Date under the Series B Warrant Agreement to purchase an aggregate of 555,556 shares of Common Stock. Series B Warrant Agreement means the Series B Warrant Agreement dated as of the Closing Date among the Company and the holders of Allowed Junior Subordinated Note Claims (as defined in the Plan of Reorganization), or a warrant agent on behalf of such holders. Series C Warrants means the Warrants to be issued to the holders of Allowed Old Common Stock Interests (as defined in the Plan of Reorganization) on the Closing Date under the Series C Warrant Agreement to purchase an aggregate of 549,451 shares of Common Stock. Series C Warrant Agreement means the Series C Warrant Agreement dated as of the Closing Date among the Company and the holders of Allowed Old Common Stock Interests (as defined in the Plan of Reorganization), or a warrant agent on behalf of such holders. Special Lender - means at any time a Lender which then holds any Special Loan. Special Loan - see Section 2.1.4. Special Loan Percentage means, as to any Lender, the percentage which (a) the principal amount of such Lender's Special Loan is of (b) the aggregate principal amount of all Special Loans. Standby Letter of Credit means any Letter of Credit that is not a Commercial Letter of Credit. Stated Amount means, with respect to any Letter of Credit at any date of determination, (a) the maximum aggregate amount available for drawing thereunder under any and all circumstances plus (b) the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit. Subordinated Debt means any unsecured Debt of the Company which has subordination terms, covenants, pricing and other terms which have been approved in writing by the Required Lenders. Subsidiary means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or other ownership interests as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Company. Suretyship Liability means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to or otherwise to invest in a debtor, or otherwise to assure a creditor against loss) any indebtedness, obligation or other liability of any other Person (other than by endorsements of instruments for deposit or in the course of collection), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Person's obligation in respect of any Suretyship Liability shall (subject to any limitation set forth therein) be deemed to be the principal amount of the debt, obligation or other liability supported thereby. Term Loans means the Tranche A Term Loans and the Tranche B Term Loans. Termination Date means the earlier to occur of (a) September 20, 2005 or (b) such other date on which the Commitments terminate pursuant to Section 6 or 12. Termination Event means (i) a Reportable Event with respect to any Benefit Plan; (ii) the withdrawal of the Company or any ERISA Affiliate from a Benefit Plan during a plan year in which the Company or such ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of employment of 20% of Benefit Plan participants who are employees of the Company or any ERISA Affiliate; (iii) the imposition of an obligation on the Company or any ERISA Affiliate under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar foreign governmental authority of proceedings to terminate a Benefit Plan or a Foreign Pension Plan; (v) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; (vi) a foreign governmental authority shall appoint or institute proceedings to appoint a trustee to administer any Foreign Pension Plan; or (vii) the partial or complete withdrawal of the Company or any ERISA Affiliate from a Multiemployer Plan or a Foreign Pension Plan. Total Debt means all Debt of the Company and its Subsidiaries, determined on a consolidated basis, excluding (i) contingent obligations in respect of Suretyship Liabilities (except to the extent constituting Suretyship Liabilities in respect of Debt of a Person other than the Company or any Subsidiary), (ii) Hedging Obligations and (iii) Debt of the Company to Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries. Total Debt to EBITDA Ratio means, as of the last day of any Fiscal Quarter, the ratio of (i) Total Debt as of such day to (ii) EBITDA for the Computation Period ending on such day. Total Percentage means, as to any Lender, (1) for purposes of determining the Majority Lenders, the percentage which (i) the Revolving Commitment of such Lender plus the unpaid principal amount of the Term Loans and Special Loan of such Lender (plus, after the termination of the Revolving Commitments, the sum of the unpaid principal amount of the Revolving Loans of such Lender plus the participations of such Lender in all Letters of Credit) is of (ii) the sum of the Revolving Commitments of all Lenders plus the unpaid principal amount of all Term Loans and Special Loans (plus, after the termination of the Revolving Commitments, the Revolving Outstandings) and (2) for all other purposes, the percentage which (i) the Revolving Commitment of such Lender plus the unpaid principal amount of the Term Loans of such Lender (plus, after the termination of the Revolving Commitments, the sum of the unpaid principal amount of the Revolving Loans of such Lender plus the participations of such Lender in all Letters of Credit) is of (ii) the sum of the Revolving Commitments of all Lenders plus the unpaid principal amount of all Term Loans (plus, after the termination of the Revolving Commitments, the Revolving Outstandings). Tranche A Term Lender means at any time a Lender which then holds any Tranche A Term Loan. Tranche A Term Loan - see Section 2.1.2. Tranche A Term Loan Percentage means, as to any Lender, the percentage which (a) the principal amount of such Lender's Tranche A Term Loan is of (b) the aggregate principal amount of all Tranche A Term Loans. Tranche B Term Lender means at any time any Lender which then holds any Tranche B Term Loan. Tranche B Term Loan - see Section 2.1.3. Tranche B Term Loan Percentage means, as to any Lender, the percentage which (a) the principal amount of such Lender's Tranche B Term Loan is of (b) the aggregate principal amount of all Tranche B Term Loans. Trust - see Section 14.20. Type of Loan or Borrowing - see Section 2.2.1. The types of Loans or borrowings under this Agreement are as follows: Base Rate Loans or borrowings and Eurodollar Loans or borrowings. Unimproved Indiana Property - see Section 10.13(b). Unmatured Event of Default means any event that, if it continues uncured, will, with lapse of time or the giving of notice or both, constitute an Event of Default. Warrants means the Series A Warrants, the Series B Warrants and the Series C Warrants. Warrant Certificate means a Warrant Certificate in the form of Exhibit L. Wholly-Owned Subsidiary means, as to any Person, another Person all of the shares of capital stock or other ownership interests of which (except directors' qualifying shares) are at the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person. Wholly-Owned Domestic Subsidiary means a Domestic Subsidiary that is a Wholly-Owned Subsidiary. Wholly-Owned Foreign Subsidiary means a Foreign Subsidiary that is a Wholly-Owned Subsidiary. 1.2 Other Interpretive Provisions. (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. (c) The term "including" is not limiting and means "including without limitation." (d) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including"; the words "to" and "until" each mean "to but excluding", and the word "through" means "to and including." (e) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments and organizational documents and instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation. (f) This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms. (g) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agents, the Company, the Lenders and the other parties thereto and are the products of all parties. Accordingly, they shall not be construed against the Agents or the Lenders merely because of the Agents' or Lenders' involvement in their preparation. SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES. 2.1 Commitments and Loans. On and subject to the terms and conditions of this Agreement, each of the Lenders, severally and for itself alone, agrees to make loans to, and to issue or participate in letters of credit for the account of, the Borrowers as follows: 2.1.1 Revolving Loan Commitment. Each Revolving Lender will make loans to the Company or any other Borrower, in each case on a revolving basis ("Revolving Loans"), from time to time until the Termination Date in such Lender's Revolving Loan Percentage of such aggregate amounts as the applicable Borrower may request from all Revolving Lenders under the Revolving Commitments; provided that (a) the Revolving Loans of each Revolving Lender plus the participations of such Revolving Lender in all Letters of Credit will not at any time exceed such Revolving Lender's Revolving Commitment and (b) the Revolving Outstandings will not at any time exceed the lesser of (x) the Revolving Commitment Amount and (y) the Borrowing Base. Upon Plan Effectiveness, all "Revolving Loans" (under and as defined in the DIP Credit Agreement) of each Revolving Lender shall automatically become Revolving Loans hereunder owing by the Company. 2.1.2 Tranche A Term Loans. Upon Plan Effectiveness, a portion of each Tranche A Term Lender's Existing Secured Lender Claims shall be automatically converted to a term loan hereunder payable by the Company to such Lender (each such loan, a "Tranche A Term Loan") in an amount equal to the amount of Tranche A Term Loan set forth opposite such Lender's name on Schedule 2.1. 2.1.3 Tranche B Term Loans. Upon Plan Effectiveness, a portion of each Tranche B Term Lender's Existing Secured Lender Claims shall be automatically converted to a term loan hereunder payable by the Company to such Lender (each such loan, a "Tranche B Term Loan") in an amount equal to the amount of Tranche B Term Loan set forth opposite such Lender's name on Schedule 2.1. 2.1.4 Special Loans. Upon Plan Effectiveness, a portion of each Special Lender's Existing Secured Lender Claims shall be automatically converted to a term loan hereunder payable by the Company to such Lender (each such loan, a "Special Loan") in an amount equal to the amount of Special Loan set forth opposite such Lender's name on Schedule 2.1. 2.1.5 L/C Commitment. (a) The Issuing Lender will issue standby and commercial letters of credit, in each case containing such terms and conditions as are permitted by this Agreement and are reasonably satisfactory to the Issuing Lender (each a "Letter of Credit"), at the request of and for the account of the applicable Borrower from time to time before the date which is 30 days prior to the scheduled Termination Date and (b) as more fully set forth in Section 2.3.2, each Revolving Lender agrees to purchase a participation in each such Letter of Credit; provided that (i) the aggregate Stated Amount of all Letters of Credit shall not at any time exceed $5,000,000, (ii) the aggregate Stated Amount of all Standby Letters of Credit shall not at any time exceed $3,000,000, (iii) the Revolving Loans of each Revolving Lender plus the participations of such Lender in all Letters of Credit will not at any time exceed such Revolving Lender's Revolving Commitment and (iv) the Revolving Outstandings will not at any time exceed the lesser of (x) the Revolving Commitment Amount and (y) the Borrowing Base. 2.2 Loan Procedures. 2.2.1 Various Types of Loans. Each Revolving Loan shall be, and each Term Loan may be divided into tranches which are, either a Base Rate Loan or a Eurodollar Loan (each a "type" of Loan), as the applicable Borrower shall specify in the related notice of borrowing or conversion pursuant to Section 2.2.2 or 2.2.3. Eurodollar Loans having the same Interest Period are sometimes called a "Group" or collectively "Groups". Base Rate Loans and Eurodollar Loans may be outstanding at the same time, provided that not more than ten different Groups of Eurodollar Loans shall be outstanding at any one time. All borrowings, conversions and repayments of Loans in each Facility shall be effected so that each Lender holding Loans in such Facility will have a pro rata share (according to its applicable Percentage) of all types and Groups of Loans constituting such Facility. Each Revolving Loan and Term Loan shall be a Base Rate Loan on the Closing Date. 2.2.2 Borrowing Procedures. The applicable Borrower shall give written notice in the form of Exhibit N (a "Borrowing Certificate") to the Administrative Agent of each proposed borrowing of Revolving Loans not later than (a) in the case of a Base Rate borrowing, 11:00 A.M., Chicago time, on the proposed date of such borrowing, and (b) in the case of a Eurodollar borrowing, 11:00 A.M., Chicago time, at least three Business Days prior to the proposed date of such borrowing. Each such notice shall be effective upon receipt by the Administrative Agent, shall be irrevocable, and shall specify the date, amount and type of borrowing and, in the case of a Eurodollar borrowing, the initial Interest Period therefor. Promptly upon receipt of such notice, the Administrative Agent shall advise each Revolving Lender thereof. Not later than 1:00 P.M., Chicago time, on the date of a proposed borrowing, each Revolving Lender shall provide the Administrative Agent at the office specified by the Administrative Agent with immediately available funds covering such Revolving Lender's Revolving Loan Percentage of such borrowing and, so long as the Administrative Agent has received the borrowing certificate under Section 11.2.2 therefor and has not received written notice that the conditions precedent set forth in Section 11 with respect to such borrowing have not been satisfied, the Administrative Agent shall pay over the funds received by the Administrative Agent to the applicable Borrower on the requested borrowing date. Each borrowing shall be on a Business Day. Each Base Rate borrowing shall be in an aggregate amount of at least $1,000,000 and an integral multiple of $500,000, and each Eurodollar borrowing shall be in an aggregate amount of at least $5,000,000 and an integral multiple of $1,000,000. 2.2.3 Conversion and Continuation Procedures. (a) Subject to Section 2.2.1, each Borrower may, upon irrevocable written notice to the Administrative Agent in accordance with clause (b) below: (i) elect, as of any Business Day, to convert any Eurodollar Loans or Base Rate Loans extended to such Borrower (or any part thereof in an aggregate amount not less than $5,000,000 or a higher integral multiple of $1,000,000) into Loans of the other type; or (ii) elect, as of the last day of the applicable Interest Period, to continue any Eurodollar Loans extended to such Borrower having Interest Periods expiring on such day (or any part thereof in an aggregate amount not less than $5,000,000 or a higher integral multiple of $1,000,000) for a new Interest Period; provided that after giving effect to any prepayment, conversion or continuation, the aggregate principal amount of each Group of Eurodollar Loans shall be at least $5,000,000 and an integral multiple of $1,000,000. (b) The applicable Borrower shall give written notice to the Administrative Agent of each proposed conversion or continuation not later than (i) in the case of conversion into Base Rate Loans, 11:00 A.M., Chicago time, on the proposed date of such conversion and (ii) in the case of conversion into or continuation of Eurodollar Loans, 11:00 A.M., Chicago time, at least three Business Days prior to the proposed date of such conversion or continuation, specifying in each case: (i) the proposed date of conversion or continuation; (ii) the aggregate amount of Loans to be converted or continued; (iii) the type of Loans resulting from the proposed conversion or continuation; and (iv) in the case of conversion into, or continuation of, Eurodollar Loans, the duration of the requested Interest Period therefor. (c) If, upon the expiration of any Interest Period applicable to Eurodollar Loans extended to any Borrower, such Borrower has failed to select timely a new Interest Period to be applicable to such Eurodollar Loans, such Borrower shall be deemed to have elected to convert such Eurodollar Loans into Base Rate Loans effective on the last day of such Interest Period. (d) The Administrative Agent will promptly notify each Lender holding a Loan in the applicable Facility of its receipt of a notice of conversion or continuation pursuant to this Section 2.2.3 or, if no timely notice is provided by the applicable Borrower, of the details of any automatic conversion. (e) Any conversion of a Eurodollar Loan on a day other than the last day of an Interest Period therefor shall be subject to Section 8.4. 2.3 Letter of Credit Procedures. 2.3.1 L/C Applications. The applicable Borrower shall give notice pursuant to a Borrowing Certificate to the Administrative Agent and the Issuing Lender of the proposed issuance of each Letter of Credit on a Business Day which is at least three Business Days (or such lesser number of days as the Administrative Agent and the Issuing Lender shall agree in any particular instance in their sole discretion) prior to the proposed date of issuance of such Letter of Credit. Each such notice shall be accompanied by an L/C Application, duly executed by the applicable Borrower and in all respects satisfactory to the Administrative Agent and the Issuing Lender, together with such other documentation as the Administrative Agent or the Issuing Lender may request in support thereof, it being understood that each L/C Application shall specify, among other things, the date on which the proposed Letter of Credit is to be issued, the expiration date of such Letter of Credit (which shall not be later than the earlier to occur of (x) one year after the date of issuance thereof (provided that any Letter of Credit may, with the consent of the Issuing Lender, be automatically renewable for successive one-year periods (which shall in no event extend beyond the date referred to in the following clause (y)) and (y) thirty days prior to the scheduled Termination Date) and whether such Letter of Credit is to be transferable in whole or in part. So long as the Issuing Lender has received a copy of the borrowing certificate under Section 11.2.2 therefor from the Administrative Agent and has not received written notice that the applicable conditions precedent set forth in Section 11 with respect to the issuance of such Letter of Credit have not been satisfied, the Issuing Lender shall issue such Letter of Credit on the requested issuance date. The Issuing Lender shall promptly advise the Administrative Agent of the issuance of each Letter of Credit and of any amendment thereto, extension thereof or event or circumstance changing the amount available for drawing thereunder. In the event of any inconsistency between the terms of any L/C Application and the terms of this Agreement, the terms of this Agreement shall control. 2.3.2 Participations in Letters of Credit. Concurrently with the issuance of each Letter of Credit, the Issuing Lender shall be deemed to have sold and transferred to each other Revolving Lender, and each other Revolving Lender shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such other Revolving Lender's Revolving Loan Percentage, in such Letter of Credit and the applicable Borrower's reimbursement obligations with respect thereto. For the purposes of this Agreement, the unparticipated portion of each Letter of Credit shall be deemed to be the Issuing Lender's "participation" therein. The Issuing Lender hereby agrees, upon request of the Administrative Agent or any Revolving Lender, to deliver to the Administrative Agent or such Lender a list of all outstanding Letters of Credit issued by the Issuing Lender, together with such information related thereto as the Administrative Agent or such Revolving Lender may reasonably request. 2.3.3 Reimbursement Obligations. Each Borrower hereby unconditionally and irrevocably agrees to reimburse the Issuing Lender for each payment or disbursement made by the Issuing Lender under any Letter of Credit issued for its account honoring any demand for payment made by the beneficiary thereunder, in each case on the date that such payment or disbursement is made. Any amount not reimbursed on the date of such payment or disbursement shall bear interest from the date of such payment or disbursement to the date that the Issuing Lender is reimbursed by the applicable Borrower therefor, payable on demand, at a rate per annum equal to the Base Rate from time to time in effect plus 2.5% per annum plus, beginning on the third Business Day after receipt of notice from the Issuing Lender of such payment or disbursement, 2%. The Issuing Lender shall notify the Company and the Administrative Agent whenever any demand for payment is made under any Letter of Credit by the beneficiary thereunder; provided that the failure of the Issuing Lender to so notify the applicable Borrower shall not affect the rights of the Issuing Lender or the Revolving Lenders in any manner whatsoever. Subject to the conditions precedent set forth in Section 11.2, if the applicable Borrower has not reimbursed the Issuing Lender on or prior to the third Business Day after the Issuing Lender makes any payment under a Letter of Credit, such Borrower hereby authorizes the Administrative Agent to make a request for Revolving Loans to be made to such Borrower in the amount of such Borrower's reimbursement obligation with respect to such payment, and the Revolving Lenders will, upon receipt of such notice from the Administrative Agent, immediately and without any request by or notice to such Borrower, provide for the payment of any reimbursement obligations due to the Issuing Lender and any interest accrued thereon by making Revolving Loans to such Borrower (in accordance with their respective Revolving Loan Percentages) in the amount thereof, which reimbursement obligation shall be thereupon satisfied to the extent of the Revolving Loans so made. 2.3.4 Limitation on Obligations of Issuing Lender. In determining whether to pay under any Letter of Credit, the Issuing Lender shall not have any obligation to any Borrower or any Revolving Lender other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the Issuing Lender under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not impose upon the Issuing Lender any liability to any Borrower or any Revolving Lender and shall not reduce or impair any Borrower's reimbursement obligations set forth in Section 2.3.3 or the obligations of the Revolving Lenders pursuant to Section 2.3.5. 2.3.5 Funding by Revolving Lenders to Issuing Lender. If the Issuing Lender makes any payment or disbursement under any Letter of Credit and the applicable Borrower has not reimbursed the Issuing Lender in full for such payment or disbursement by 11:00 A.M., Chicago time, on the date of such payment or disbursement, or if any reimbursement received by the Issuing Lender from any Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of such Borrower or otherwise, each other Revolving Lender shall be obligated to pay to the Administrative Agent for the account of the Issuing Lender, in full or partial payment of the purchase price of its participation in such Letter of Credit, its Revolving Loan Percentage of such payment or disbursement (but no such payment shall diminish the obligations of the Borrowers under Section 2.3.3), and, upon notice from the Issuing Lender, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each other Revolving Lender irrevocably and unconditionally agrees to so pay to the Administrative Agent in immediately available funds for the Issuing Lender's account the amount of such other Revolving Lender's Revolving Loan Percentage of such payment or disbursement. If and to the extent any Revolving Lender shall not have made such amount available to the Administrative Agent by 2:00 P.M., Chicago time, on the Business Day on which such Revolving Lender receives notice from the Administrative Agent of such payment or disbursement (it being understood that any such notice received after noon, Chicago time, on any Business Day shall be deemed to have been received on the next following Business Day), such Revolving Lender agrees to pay interest on such amount to the Administrative Agent for the Issuing Lender's account forthwith on demand, for each day from the date such amount was to have been delivered to the Administrative Agent to the date such amount is paid, at a rate per annum equal to (a) for the first three days after demand, the Federal Funds Rate from time to time in effect and (b) thereafter, the Base Rate from time to time in effect. Any Revolving Lender's failure to make available to the Administrative Agent its Revolving Loan Percentage of any such payment or disbursement shall not relieve any other Revolving Lender of its obligation hereunder to make available to the Administrative Agent such other Revolving Lender's Revolving Loan Percentage of such payment, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make available to the Administrative Agent such other Revolving Lender's Revolving Loan Percentage of any such payment or disbursement. 2.3.6 Prior Letters of Credit. (a) The Company, the Lenders and the Administrative Agent agree that, on the Closing Date, the letters of credit issued by ABN under the Pre-Petition Credit Agreement and listed on Schedule 2.3.6 shall be deemed to be, and constitute, Letters of Credit issued hereunder. Without limiting the generality of the foregoing, each Revolving Lender shall be deemed to have purchased from ABN a participation in such Letters of Credit on the Closing Date pursuant to Section 2.3.2. The letter of credit fees payable under Section 5.3(a) with respect to such Letters of Credit shall accrue from the Closing Date. (b) The Company, the Administrative Agent, the Issuing Lender and the Revolving Lenders acknowledge that the Letter of Credit listed at item 3 of Schedule 2.3.6 is denominated in Sterling (the "Sterling LC") and agree as follows with respect to the Sterling LC: (i) The Company agrees that its reimbursement obligation under Section 2.3.3 in respect of a drawing under the Sterling LC, (A) shall be payable in Dollars at the Dollar Amount of such obligation in Sterling (determined on the date of payment) and (B) shall bear interest at the rate specified in the second sentence of Section 2.3.3. (ii) Each Revolving Lender agrees that its obligation to make Revolving Loans under Section 2.3.3 and to fund its participation interest in any unpaid reimbursement obligation in respect of a drawing under Section 2.3.5, in each case with respect to the Sterling LC shall be payable in Dollars at the Dollar Amount of such obligation in Sterling (calculated on the date of payment) (and any such amount which is not paid when due shall bear interest at the rates specified in the penultimate sentence of Section 2.3.5). (iii) For purposes of determining whether there is availability for the Company to request, continue or convert any Revolving Loan, or request, extend or increase the Stated Amount of any Letter of Credit, the Dollar Amount of the Stated Amount of the Sterling LC shall be calculated on the date such Revolving Loan is to be made, continued or converted or such Letter of Credit is to be issued, extended or increased. (iv) For purposes of determining (x) the letter of credit fee under Section 5.3(a) and (y) the letter of credit fronting fee under Section 5.3(b), the Dollar Amount of the Stated Amount of the Sterling LC shall be determined on each of (1) the date of any payment by the Issuing Lender in respect of a drawing under the Sterling LC, (2) the last day of each calendar month and (3) each day on which the aggregate amount of the Revolving Commitments and/or the Commitment of the Issuing Lender to issue Letters of Credit is reduced. (v) If, on the last day of any calendar month or any day on which the aggregate amount of the Revolving Commitments and/or the Commitment of the Issuing Lender to issue Letters of Credit is reduced, the Revolving Outstandings (valuing the Stated Amount of, and all reimbursement obligations in respect of, the Sterling LC at the Dollar Amount thereof as of such day) would exceed the aggregate amount of the Revolving Commitments, then the Company will immediately eliminate such excess by prepaying Revolving Loans and/or Cash Collateralizing the Letters of Credit. (vi) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due in respect of the Sterling LC in the currency in which such sum is expressed to be payable into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Issuing Lender could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Company in respect of any such sum due from it to the Administrative Agent, the Issuing Lender or any Revolving Lender hereunder shall, notwithstanding any judgment in a currency (the "Judgment Currency") other than that in which such sum is denominated in accordance with the applicable provisions hereof (the "Agreement Currency"), be discharged only to the extent that on the Business Day following receipt by the Issuing Lender of any sum adjudged to be so due in the Judgment Currency, the Issuing Lender may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Issuing Lender in the Agreement Currency, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, the Issuing Lender or the Revolving Lender to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Issuing Lender in such currency, the Issuing Lender agrees to return the amount of any excess to the Company (or to any other Person who may be entitled thereto under applicable law). (vii) The Company agrees that it shall not renew or amend (and the Issuing Lender shall not renew or amend) the Sterling LC beyond its expiry date as set forth on the date hereof. Notwithstanding anything to the contrary herein, the Issuing Lender shall not issue any Letter of Credit in a currency other than Dollars. 2.4 Commitments Several. The failure of any Lender to make a requested Loan on any date shall not relieve any other Lender of its obligation (if any) to make a Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by such other Lender. 2.5 Certain Conditions. Notwithstanding any other provision of this Agreement, no Lender shall have an obligation to make any Loan, or to permit the continuation of or any conversion into any Eurodollar Loan, and the Issuing Lender shall not have any obligation to issue any Letter of Credit, if an Event of Default or Unmatured Event of Default exists. SECTION 3 NOTES EVIDENCING LOANS. 3.1 Notes. The Loans of each Lender shall be evidenced by a promissory note (each a "Note") substantially in the form set forth in Exhibit A, with appropriate insertions, duly executed by the Borrowers and payable to the order of such Lender, as follows: (a) Each Revolving Loan of such Lender shall be paid in full on the Termination Date. (b) The Tranche A Term Loan of such Lender shall be paid in full on the Termination Date. (c) The Tranche B Term Loan of such Lender shall be paid in full on the Termination Date. (d) The Special Loan of such Lender shall be paid on the dates set forth below in installments equal to such Lender's Special Loan Percentage of the aggregate principal amount set forth below opposite the due date set forth below: Date Amount November 30, 2002 $25,000,000 November 30, 2003 $25,000,000 November 30, 2004 $25,000,000 September 20, 2005 the outstanding principal balance of all Special Loans. The Company shall pay, in connection with each such installment of Special Loans, all accrued but unpaid interest on the principal amount due and all Capitalized Interest theretofore capitalized and allocable to such principal amount (including Capitalized Interest theretofore capitalized on any Capitalized Interest allocable to such principal amount) and all accrued but unpaid interest on such Capitalized Interest. 3.2 Recordkeeping. Each Lender shall record in its records, or at its option on the schedule attached to its Note, the date and amount of each Loan made by such Lender, each repayment or conversion thereof and, in the case of each Eurodollar Loan, the dates on which each Interest Period for such Loan shall begin and end. The aggregate unpaid principal amount so recorded shall be conclusive and binding on the Borrowers as to the principal amount owing and unpaid on such Note, absent manifest error. The failure to so record any such amount or any error in so recording any such amount shall not, however, limit or otherwise affect the obligations of the Borrowers hereunder or under any Note to repay the principal amount of the Loans evidenced by such Note together with all interest accruing thereon. SECTION 4 INTEREST. 4.1 Interest Rates. (a) Subject to clause (d) below, each Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan extended to it for the period commencing on the date of such Loan until such Loan is paid in full as follows: (i) at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to time in effect plus 2.50%; and (ii) at all times while such Loan is a Eurodollar Loan, at a rate per annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) applicable to each Interest Period for such Loan plus 4.00%. (b) Subject to clause (d) below, the Company promises to pay interest on the unpaid principal amount of each Term Loan for the period commencing on Plan Effectiveness until such Loan is paid in full as follows: (i) at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to time in effect plus 3.50%; and (ii) at all times while such Loan is a Eurodollar Loan, at a rate per annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) applicable to each Interest Period for such Loan plus 5.00%. (c) Subject to clause (d) below, the Company promises to pay interest on the unpaid principal amount of each Special Loan for the period commencing on Plan Effectiveness until such Loan is paid in full at a rate per annum equal to 16%. (d) At any time an Event of Default exists, upon notice from the Lenders holding an aggregate Percentage in the applicable Facility of greater than 50%, the interest rate applicable to each Loan in such Facility shall be the sum of 3% plus the interest rate otherwise applicable to such Loan. 4.2 Interest Payment Dates; Capitalization of Interest on Special Loans. Accrued interest on each Base Rate Loan shall be payable in arrears on the last day of each calendar month and at maturity. Accrued interest on each Eurodollar Loan shall be payable on the last day of each Interest Period relating to such Loan (and, in the case of a Eurodollar Loan with a six-month Interest Period, on the three-month anniversary of the first day of such Interest Period) and at maturity. After maturity, accrued interest on all Loans shall be payable on demand. Accrued interest on the Special Loans shall be payable on the last day of each Fiscal Quarter and at final maturity. All interest due on the Special Loans payable at any time other than maturity (whether upon scheduled principal payment, by acceleration or otherwise) shall be capitalized and added to the unpaid principal amount thereof on the date such payment is due (all such capitalized interest, "Capitalized Interest"). 4.3 Setting and Notice of Eurodollar Rates. The applicable Eurodollar Rate for each Interest Period shall be determined by the Administrative Agent, and notice thereof shall be given by the Administrative Agent promptly to the Company and each Lender holding a Loan in the applicable Facility. Each determination of the applicable Eurodollar Rate by the Administrative Agent shall be conclusive and binding upon the parties hereto, in the absence of manifest error. The Administrative Agent shall, upon written request of the Company or any Lender, deliver to the Company or such Lender a statement showing the computations used by the Administrative Agent in determining any applicable Eurodollar Rate hereunder. 4.4 Computation of Interest. Interest shall be computed for the actual number of days elapsed on the basis of a year of 360 days. The applicable interest rate for each Base Rate Loan shall change simultaneously with each change in the Base Rate. SECTION 5 FEES. 5.1 Facility Fees. The Company agrees to pay to the Administrative Agent for the account of the Revolving Lenders a nonrefundable facility fee of 0.50% per annum of the Revolving Commitment Amount then in effect (whether or not used), payable on the Closing Date and on each anniversary thereof and at maturity to be shared ratably among the Revolving Lenders in accordance with their respective Revolving Loan Percentages. The Company agrees to pay to the Administrative Agent for the account of the Tranche A Term Lenders and Tranche B Term Lenders a facility fee of 0.50% per annum of the aggregate principal amount of the Tranche A Term Loans and Tranche B Term Loans, as applicable, then outstanding, payable on the Closing Date and on each anniversary thereof and at maturity, to be shared ratably among the Tranche A Term Lenders and Tranche B Term Lenders, as applicable, in accordance with their respective Tranche A Term Loan Percentages and Tranche B Term Loan Percentages, as applicable. 5.2 Upfront Fee. The Company agrees to pay to the Administrative Agent for the account of the Revolving Lenders on the Closing Date a nonrefundable upfront fee of 1% of the Revolving Commitment Amount as in effect on such day, to be shared ratably among the Revolving Lenders in accordance with their respective Revolving Loan Percentages. 5.3 Letter of Credit Fees. (a) Each Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a nonrefundable letter of credit fee for each Letter of Credit issued for the account of such Borrower equal to 4.00% per annum of such Lender's Revolving Loan Percentage (as adjusted from time to time) of the undrawn amount of such Letter of Credit (computed for the actual number of days elapsed on the basis of a year of 360 days); provided that, upon notice from the Required Revolving Lenders, the rate applicable to each Letter of Credit shall be 7.00% per annum at any time that an Event of Default exists. Such letter of credit fee shall be payable in arrears on the last day of each calendar month and on the Termination Date (or such later date on which such Letter of Credit expires or is terminated) for the period from the date of the issuance of each Letter of Credit (or the last day on which the letter of credit fee was paid with respect thereto) to the date such payment is due or, if earlier, the date on which such Letter of Credit expired or was terminated. (b) In addition, each Borrower agrees to pay to the Issuing Lender, with respect to each Letter of Credit issued upon the request of such Borrower, for the account of the Issuing Lender (i) such fees and expenses as the Issuing Lender customarily requires in connection with the issuance, negotiation, processing and/or administration of letters of credit in similar situations and (ii) a nonrefundable letter of credit fronting fee in an amount equal to 0.25% of the Stated Amount of such Letter of Credit upon issuance thereof. 5.4 Administrative Agent's Fees. The Company agrees to pay to the Administrative Agent for its own account a nonrefundable agent's fee of $100,000 per annum payable on the Closing Date and on each anniversary thereof. SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT AMOUNT; PREPAYMENTS; TREATMENT OF PROCEEDS. 6.1 Reduction or Termination of the Revolving Commitment Amount. 6.1.1 Voluntary Reduction or Termination of the Revolving Commitment Amount. The Company may from time to time on at least five Business Days' prior written notice received by the Administrative Agent (which shall promptly advise each Lender thereof) permanently reduce the Revolving Commitment Amount to an amount not less than the Revolving Outstandings; provided that the Company may not reduce the Revolving Commitment Amount pursuant to this Section 6.1.1 if any Term Loan or Special Loan is outstanding. Any such reduction shall be in an amount not less than $1,000,000 or a higher integral multiple of $1,000,000. Concurrently with any reduction of the Revolving Commitment Amount to zero, each Borrower shall pay all accrued but unpaid interest on the Revolving Loans extended to it, and the Company shall pay all accrued but unpaid facility fees with respect to the Revolving Loan Facility and all letter of credit fees and shall Cash Collateralize in full all obligations arising with respect to the Letters of Credit (at 105% of the Stated Amount of each outstanding Letter of Credit). 6.1.2 Mandatory Reductions of Revolving Commitment Amount. On the date of any Mandatory Prepayment Event, the Revolving Commitment Amount shall be automatically and permanently reduced by an amount (if any) equal to the Designated Proceeds of such Mandatory Prepayment Event less the amount (if any) applied to prepay Loans pursuant to Section 6.2.2. 6.1.3 Reductions of the Revolving Commitment Amount Pro Rata Among Revolving Lenders. All reductions of the Revolving Commitment Amount shall reduce the Revolving Commitments pro rata among the Revolving Lenders according to their respective Revolving Loan Percentages. 6.2 Prepayments. 6.2.1 Voluntary Prepayments. The Borrowers may from time to time prepay the Loans in whole or in part; provided that (i) the Company may not make any prepayment of any Term Loan pursuant to this Section if any Special Loan is outstanding and (ii) the applicable Borrower shall give the Administrative Agent (which shall promptly advise each Lender) notice thereof not later than 11:00 A.M., Chicago time, on the day of such prepayment (which shall be a Business Day), specifying the Loans to be prepaid and the date and amount of prepayment. 6.2.2 Mandatory Prepayments. (a) The Company shall make a prepayment of the Term Loans, Special Loans and, as set forth in the next paragraph, Revolving Loans upon the occurrence of any of the following (each a "Mandatory Prepayment Event") at the following times and in the following amounts (such applicable amounts being referred to as "Designated Proceeds"): (i) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from any Asset Sale, in an amount equal to 100% of such Net Cash Proceeds. (ii) Concurrently with the receipt of any insurance (other than proceeds of any business interruption insurance policy) or condemnation proceeds (or other similar recoveries) by the Company or any Subsidiary or by the Administrative Agent (to the extent the Administrative Agent is holding the insurance or condemnation proceeds as additional Collateral) from any casualty loss incurred by the Company or any Subsidiary or condemnation of property, in an amount equal to 100% of such insurance or condemnation proceeds (or other similar recoveries) net of any collection expenses; provided that no such prepayment shall be required with respect to any such proceeds (i) if on or prior to the date of receipt of such proceeds, an authorized officer of the Company delivers to the Administrative Agent a notice stating that the Company or the applicable Subsidiary intends and expects to use such proceeds for the financing of the replacement, substitution or restoration of the assets sustaining such casualty loss or condemnation within 180 days after the date of such receipt and (ii) if and to the extent such proceeds are used by the Company or the applicable Subsidiary within 180 days after the date of receipt of such proceeds for the financing of the replacement, substitution or restoration of the assets sustaining such casualty loss or condemnation. (iii) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from any issuance of equity securities of the Company or any Subsidiary (excluding (x) any issuance of shares of Capital Stock of the Company, in an aggregate amount not to exceed 10% of the shares of Common Stock on a fully-diluted basis as of the Closing Date, pursuant to any employee or director stock option program, benefit plan or compensation program and (y) any issuance by a Subsidiary to the Company or another Subsidiary), in an amount equal to 100% of such Net Cash Proceeds. (iv) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from any issuance of any Debt of the Company or any Subsidiary (excluding Debt permitted by Section 10.7, other than Subordinated Debt), in an amount equal to 100% of such Net Cash Proceeds. (v) Within 90 days after the end of each Fiscal Year (commencing with Fiscal Year 2002), in an amount equal to 90% of Excess Cash Flow for such Fiscal Year (provided, that with respect to any such payment to be made within 90 days after the end of Fiscal Year 2002, such payment shall be in an amount equal to 90% of cumulative Excess Cash Flow for Fiscal Year 2001 and Fiscal Year 2002). (vi) Upon the receipt of any tax refund of $200,000 or more by the Company or any Subsidiary with respect to income taxes, in an amount equal to 100% of such refund. Subject to the second sentence of Section 7.2, all Designated Proceeds of Mandatory Prepayment Events shall be applied to the Loans as follows: (1) as to any Designated Proceeds comprising the first $15,000,000 of Designated Proceeds received by the Company and its Subsidiaries in the aggregate after the Closing Date (all such Designated Proceeds, "Primary Proceeds"), to prepay Special Loans or Tranche A Term Loans, as the Company may elect with respect to any such Primary Proceeds pursuant to written notice delivered by the Company to the Administrative Agent, or, if the Special Loans and Tranche A Term Loans have been paid in full, to prepay Tranche B Term Loans and (2) as to all Designated Proceeds other than Primary Proceeds, first to prepay Special Loans until the Special Loans have been paid in full, second, after payment in full of the Special Loans, to prepay Tranche A Term Loans until the Tranche A Term Loans have been paid in full, and third, after payment in full of the Special Loans and Tranche A Term Loans, to prepay Tranche B Term Loans; provided that, in the case of any Mandatory Prepayment Event described in clause (i) or (ii) above, the Designated Proceeds of such Mandatory Prepayment Event shall be applied first to prepay the Revolving Loans to the extent necessary to eliminate any Borrowing Base Shortfall caused by such Mandatory Prepayment Event (and, after such application, applied as set forth in clauses (1) and (2) of this sentence) and, to the extent of such application to the Revolving Loans, such Designated Proceeds shall be disregarded for purposes of calculating the amount of Primary Proceeds received under clause (1) of this sentence. (b) If on any day the Revolving Outstandings exceed the Borrowing Base, the Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to eliminate such excess. (c) If on any day on which the Revolving Commitment Amount is reduced pursuant to Section 6.1.2 any Borrowing Base Shortfall exists, the Borrowers shall immediately prepay Revolving Loans or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to eliminate such Borrowing Base Shortfall. (d) If the Company or any Subsidiary receives any proceeds of any business interruption insurance policy, the Company shall, forthwith upon such receipt, prepay Revolving Loans (or, to the extent that no Revolving Loans are outstanding, Cash Collateralize Letters of Credit) in an amount equal to 100% of such proceeds. 6.3 All Prepayments. Each voluntary partial prepayment shall be in a principal amount of $1,000,000 or a higher integral multiple of $500,000. Any partial prepayment of a Group of Eurodollar Loans shall be subject to the proviso to Section 2.2.3(a). Any prepayment of a Loan shall include accrued interest on the principal amount being repaid and shall, in the case of any Eurodollar Loan being prepaid on a day other than the last day of an Interest Period therefor, be subject to Section 8.4. All prepayments of Special Loans (other than mandatory prepayments that the Company is obligated to make upon receipt of any Net Cash Proceeds of Subordinated Debt or equity securities pursuant to Section 6.2.2(a)(iii) or (iv)) shall be applied in the inverse order of maturity to the remaining installments thereof. All mandatory prepayments of Special Loans that the Company is obligated to make upon receipt of Net Cash Proceeds of Subordinated Debt or equity securities pursuant to Sections 6.2.2(a)(iii) and (iv) shall be applied to the remaining installments of the Special Loans in forward order of maturity. 6.4 Prepayment Premium. The Company shall pay to the Administrative Agent, for the ratable benefit of the Special Lenders, in addition to the principal amount of any such prepayment, a prepayment premium on each prepayment of Special Loans pursuant to Section 6.2.1 (other than any such prepayment that occurs simultaneously with the payment in full in cash of all Term Loans) in an amount equal to the percentage of the principal amount prepaid, depending on the date of such prepayment, in accordance with the following schedule: Date of Prepayment Premium Percentage Closing Date through 11/30/01 2% 12/1/01 through 2/29/02 1.50% 3/1/02 through 5/31/02 1% 6/1/02 through 8/31/02 0.50% 9/1/02 and thereafter 0%. Each such prepayment premium shall be due and payable concurrently with the prepayment of Special Loans giving rise to such premium. 6.5 Treatment of Certain Proceeds. (a) If the Company or any Subsidiary receives any cash proceeds from any Asset Sale (net of items referred to in clauses (a)(i) - (v) of the definition of "Net Cash Proceeds" with respect to such Asset Sale) or any insurance or condemnation proceeds or similar recoveries from a casualty loss or a condemnation of property suffered by the Company or any Subsidiary, in any case in an amount in excess of $5,000,000 (all such Asset Sale proceeds or insurance or condemnation proceeds, "Asset Proceeds"), then, to the extent that the Company does not apply an amount equal to such Asset Proceeds upon the receipt thereof by the Company or the applicable Subsidiary to the payment of Loans as set forth in Section 6.2.2(a) or to the concurrent replacement of the asset disposed of in such Asset Sale with an asset performing the same or a similar function or the concurrent replacement, substitution or restoration of the assets sustaining such casualty loss or condemnation, the Company shall (directly or indirectly through a Subsidiary) deposit into an interest bearing account under the Administrative Agent's sole dominion and control and with respect to which the Administration Agent shall have the sole power of withdrawal (each, a "Proceeds Account") an amount equal to all such Asset Proceeds (such amount not so applied is hereinafter referred to as "Proceeds") less the amount of Revolving Loans prepaid allocable to such Proceeds as provided in Section 6.5(b). In connection with each such deposit, the Company shall certify to the Administrative Agent the date of receipt by the Company or the relevant Subsidiary of the funds deposited. Amounts deposited in any Proceeds Account shall be held by the Administrative Agent for the benefit of the Lenders as collateral security for the obligations of the Loan Parties under the Loan Documents. If no Unmatured Event of Default or Event of Default exists, the Administrative Agent will make available to the Company amounts in the Proceeds Account (plus any interest accrued thereon) solely for the purposes of (x) financing the replacement, substitution or restoration of the assets sustaining the related casualty loss or condemnation or, as applicable, the replacement of the asset disposed of in the related Asset Sale with another asset performing the same or a similar function, in each case upon the Company's written request therefor (which request shall contain a certification that the Proceeds so released will be used for such purpose), or (y) prepaying Loans in accordance with Section 6.2.2(a), to the extent required in connection with such Asset Sale, casualty loss or condemnation upon the Company's written notice to the Agent requesting that the applicable funds be applied to make such prepayment; provided that (i) any Proceeds (plus any interest accrued thereon) of an Asset Sale remaining in the Proceeds Account on the 91st day after the receipt by the Company or the applicable Subsidiary of Proceeds from such Asset Sale shall be applied on such day (or, if such day is not a Business Day, the first Business Day thereafter) to the payment of Loans as set forth in Section 6.2.2(a) and (ii) any Proceeds (plus any interest accrued thereon) of a casualty loss or condemnation remaining in the Proceeds Account on the 181st day after the receipt by the Company or the applicable Subsidiary of Proceeds from such casualty loss or condemnation shall be applied on such day (or, if such day is not a Business Day, the first Business Day thereafter) to the payment of Loans as set forth in Section 6.2.2(a). (b) In lieu of depositing Proceeds into the Proceeds Account pursuant to Section 6.5(a), the Company may, at the time of receipt of any Proceeds by it or any Subsidiary, prepay Revolving Loans in an amount equal to all or a portion of the amount of such Proceeds (with any such Proceeds received in a currency other than Dollars to be valued at the Dollar Amount thereof). If the Company makes any such prepayment, it shall notify the Administrative Agent of its election to so prepay Revolving Loans in writing at the time it makes such prepayment, which notice shall specify the amount of Revolving Loans being prepaid allocable to such Proceeds and a certification of the date of receipt by the Company or the relevant Subsidiary of the funds giving rise to the Company's obligation to either deposit such funds into a Proceeds Account or prepay Revolving Loans under this Section 6.5. Upon any such prepayment, a reserve shall be created against the Borrowing Base in the amount of such prepayment which is specified by the Company as so being allocable in the related notice (the aggregate amount of all such reserves at any time in effect being the "Proceeds Reserve"). No portion of the Proceeds Reserve allocable to any Asset Sale, casualty loss or condemnation shall be available to the Borrowers for any purpose other than for the purposes of (x) financing the replacement, substitution or restoration of the assets sustaining the related casualty loss or condemnation or the replacement of the asset disposed of in the related Asset Sale with another asset performing the same or a similar function or (y) financing the prepayment of Loans in accordance with Section 6.2.2(a), to the extent required in connection with such Asset Sale, casualty loss or condemnation. The Company may request that Revolving Loans allocable to the Proceeds Reserve be made for either such purpose by submitting a Borrowing Certificate to the Administrative Agent pursuant to Section 2.2.2, together with a certification that the amount of Revolving Loans so borrowed that are allocable to the Proceeds Reserve will be used for one of such purposes as specified by the Company in such notice; provided that (i) if any portion of the Proceeds Reserve created upon an Asset Sale remains in effect on the 91st day after the receipt by the Company or the applicable Subsidiary of Proceeds from such Asset Sale, then the Administrative Agent shall (and the Company hereby authorizes the Administrative Agent to) make a request for Revolving Loans to be made to the Company in the amount of such portion, and the Revolving Lenders will, upon receipt of such notice from the Administrative Agent but subject to the conditions precedent in Section 11.2, without any request by or notice to any Borrower, make Revolving Loans to the Company (in accordance with their respective Revolving Loan Percentages) and the Administrative Agent shall apply the proceeds of such Revolving Loans to the payment of Loans as set forth in Section 6.2.2(a) and (ii) if any portion of the Proceeds Reserve created upon a casualty loss or condemnation remains in effect on the 181st day after the receipt by the Company or the applicable Subsidiary of Proceeds from such casualty loss or condemnation, then the Administrative Agent shall (and the Company hereby authorizes the Administrative Agent to) make a request for Revolving Loans to be made to the Company in the amount of such portion, and the Revolving Lenders will, upon receipt of such notice from the Administrative Agent but subject to the conditions precedent in Section 11.2, without any request by or notice to the Company, make Revolving Loans to the Company (in accordance with their respective Revolving Loan Percentages) and the Administrative Agent shall apply the proceeds of such Revolving Loans to the payment of Loans as set forth in Section 6.2.2(a). The Proceeds Reserve shall be automatically reduced by the portion of any Revolving Loan made to the Company that is allocable to the Proceeds Reserve and the proceeds of which are used for the purposes specified in this Section 6.5(b). Notwithstanding anything herein to the contrary, to the extent that a portion of the Proceeds Reserve is being used to make Revolving Loans for the purposes described in this Section 6.5(b), such portion of the Proceeds Reserve shall not be included in clause (e) of the definition of "Borrowing Base" for purposes of determining availability under the Borrowing Base. SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES. 7.1 Making of Payments. All payments of principal of or premium, if any, and interest on the Notes, and of all fees, shall be made by the Company (or, if applicable, the applicable Borrower) to the Administrative Agent in immediately available funds at the office specified by the Administrative Agent not later than noon, Chicago time, on the date due; and funds received after that hour shall be deemed to have been received by the Administrative Agent on the following Business Day. Subject to Section 7.6 in respect of Taxes, all such payments shall be made without setoff or counterclaim. The Administrative Agent shall promptly remit to each Lender its share of all such payments received in collected funds by the Administrative Agent for the account of such Lender. All payments under Section 8.1 shall be made by the Company directly to the Lender entitled thereto. 7.2 Application of Certain Payments. At any time other than when an Unmatured Event of Default under Section 12.1.4 or any Event of Default exists, and except as otherwise required by this Agreement, each payment of principal shall be applied to such Loans as the Company shall direct by notice to be received by the Administrative Agent on or before the date of such payment or, in the absence of such notice, as the Administrative Agent shall determine in its discretion. At any time while an Unmatured Event of Default under Section 12.1.4 or any Event of Default exists, each payment or prepayment in respect of the Loans and other obligations hereunder and all proceeds of Collateral shall be applied in the following order: first, to the payment of amounts then due with respect to fees, charges, indemnities and expenses for which the Loan Parties are liable to the Administrative Agent pursuant to this Agreement and the other Loan Documents, second, to the payment of amounts then due with respect to charges, indemnities and expenses for which the Loan Parties are liable to the Lenders pursuant to this Agreement and the other Loan Documents, third, to the payment of amounts then due with respect to interest on and fees with respect to the Revolving Loans and Letters of Credit, fourth, to the payment of principal and reimbursement obligations then outstanding on Revolving Loans and with respect to Letters of Credit, fifth, to provide cash collateral, if required pursuant to this Agreement, sixth, to the payment of amounts then due with respect to interest on and fees with respect to the Tranche A Term Loans, seventh, to the payment of principal then outstanding on Tranche A Term Loans, eighth, to the payment of amounts then due with respect to interest on and fees with respect to the Tranche B Term Loans, ninth, to the payment of principal then outstanding on Tranche B Term Loans, tenth, to the payment of interest, fees and premium, if any, then due with respect to Special Loans, eleventh, to the payment of principal then outstanding on the Special Loans, twelfth, to the payment of all other obligations hereunder and under the other Loan Documents and thirteenth, to the payment of all Hedging Obligations, if any, payable by the Company or any of its Domestic Subsidiaries to a Lender or an Affiliate of a Lender. Concurrently with each remittance to any Lender of its share of any such payment, the Administrative Agent shall advise such Lender as to the application of such payment. 7.3 Due Date Extension. If any payment of principal or (to the extent payable in cash) interest with respect to any of the Loans, or of any fees, falls due on a day which is not a Business Day, then such due date shall be extended to the immediately following Business Day (unless, in the case of a Eurodollar Loan, such immediately following Business Day is the first Business Day of a calendar month, in which case such due date shall be the immediately preceding Business Day) and, in the case of principal, additional interest shall accrue and be payable for the period of any such extension. 7.4 Setoff. The Borrowers agree that the Administrative Agent and each Lender have all rights of set-off and bankers' lien provided by applicable law, and in addition thereto, each Borrower agrees that at any time any Event of Default exists, the Administrative Agent and each Lender may apply to the payment of any obligations of the Borrowers hereunder, whether or not then due, any and all balances, credits, deposits, accounts or moneys of the Borrowers then or thereafter with the Administrative Agent or such Lender, irrespective of whether the Lenders have demanded payment or the obligations hereunder have been accelerated. 7.5 Proration of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of offset or otherwise, but excluding any payment pursuant to Section 8.7 or 14.9 and payments of interest on any Affected Loan) on account of principal of or interest on any Loan (or on account of its participation in any Letter of Credit) in excess of its pro rata share of payments and other recoveries obtained by all Lenders on account of principal of and interest on the Loans (or such participation) then held by them, such Lender shall purchase from the other Lenders such participations in the Loans (or sub- participations in Letters of Credit) held by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery. 7.6 Taxes. Except as otherwise provided in this Section 7.6, all payments of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, excluding franchise taxes and taxes imposed on or measured by any Agent's or any Lender's net income or receipts (all non-excluded items being called "Taxes"). Except as otherwise provided in this Section 7.6, if any withholding or deduction from any payment to be made by any Borrower hereunder is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the applicable Borrower will: (a) pay directly to the relevant authority the full amount required to be so withheld or deducted; (b) promptly forward to the Administrative Agent an official receipt or other documentation satisfactory to the Administrative Agent evidencing such payment to such authority; and (c) pay to the Administrative Agent for the account of the Lenders such additional amount as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required. Moreover, if any Taxes are directly asserted against the Administrative Agent or any Lender with respect to any payment received by the Administrative Agent or such Lender hereunder, the Administrative Agent or such Lender may pay such Taxes and the Borrowers will promptly pay such additional amounts (including any penalty, interest or expense) as is necessary in order that the net amount received by such Person after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such Person would have received had such Taxes not been asserted. If any Borrower fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent, for the account of the respective Lenders, the required receipts or other required documentary evidence, such Borrower shall indemnify the Lenders for any incremental Taxes, interest or penalties that may become payable by any Lender as a result of any such failure. For purposes of this Section 7.6, a distribution or payment hereunder by the Administrative Agent or any Lender to or for the account of any Lender or Agent shall be deemed a payment by the Borrowers. Each Lender that (i) is a party hereto on the Closing Date or (ii) becomes an assignee of an interest under this Agreement under Section 14.9.1 after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall, on or prior to the Closing Date (in the case of a Lender referred to in clause (i) above) or the effective date of the assignment pursuant to which such assignee became a Lender hereunder (in the case of a Lender referred to in clause (ii) above) execute and deliver (and renew, if applicable) to each of the Company and the Administrative Agent (x) two or more (as the Company or the Administrative Agent may reasonably request) United States Internal Revenue Service Forms W-9, W-8ECI or W-8BEN, or any successor form to any of the foregoing forms, in each case establishing, as of the Closing Date that such Lender is exempt, as of the Closing Date (in the case of a Lender referred to in clause (i) above) or the effective date of the assignment pursuant to which such assignee became a Lender hereunder (in the case of a Lender referred to in clause (ii) above), from withholding or deduction of Taxes, or (y) if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and intends to claim exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," a Form W-8BEN or any successor thereto (and, if such Lender delivers a Form W-8BEN, a certificate representing that such Lender is not a "bank" for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Company and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code)), or such other forms or documents, appropriately completed, in each case establishing that such Lender is exempt, as of the Closing Date (in the case of a Lender referred to in clause (i) above) or the effective date of the assignment pursuant to which such assignee became a Lender hereunder (in the case of a Lender referred to in clause (ii) above), from withholding or deduction of Taxes. The Administrative Agent and any successor Administrative Agent under Section 13.9 shall, prior to the Closing Date (or, in the case of any successor Administrative Agent, the date such Person became Administrative Agent hereunder), execute and deliver (and renew, if applicable) to the Company two or more (as the Company may reasonably request) of either Internal Revenue Service Form W-8IMY (with respect to each Lender) or Internal Revenue Service Form W-9, or any successor to any of the foregoing forms, in each case establishing that the Administrative Agent (or, if applicable, successor Administrative Agent) is exempt, as of the Closing Date (or, in the case of any successor Administrative Agent, the date such Person became Administrative Agent hereunder), from withholding and deduction of Taxes. The Borrowers shall not be required to pay additional amounts to any Lender or to the Administrative Agent pursuant to this Section 7.6 to the extent that the obligation to pay such additional amounts would not have arisen but for the failure of such Lender (or, if applicable, the Administrative Agent) to comply with this paragraph. SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS. 8.1 Increased Costs. (a) If, after the date hereof, the adoption of, or any change in, any applicable law, rule or regulation, or any change in the interpretation or administration of any applicable law, rule or regulation by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Eurodollar Office of such Lender) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency (i) shall subject any Lender (or any Eurodollar Office of such Lender) to any tax, duty or other charge with respect to its Eurodollar Loans, its Note or its obligation to make Eurodollar Loans, or shall change the basis of taxation of payments to any Lender of the principal of or interest on its Eurodollar Loans or any other amounts due under this Agreement in respect of its Eurodollar Loans or its obligation to make Eurodollar Loans (except for changes in the rate of tax on the overall net income or receipts of such Lender or its Eurodollar Office imposed by the jurisdiction in which such Lender is organized or in which such Lender's principal executive office or Eurodollar Office is located or in which such Lender is doing business); (ii) shall impose, modify or deem applicable any reserve (including any reserve imposed by the FRB, but excluding any reserve included in the determination of interest rates pursuant to Section 4), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by any Lender (or any Eurodollar Office of such Lender); or (iii) shall impose on any Lender (or its Eurodollar Office) any other condition affecting its Eurodollar Loans, its Note or its obligation to make Eurodollar Loans; and the result of any of the foregoing is to increase the cost to (or to impose a cost on) such Lender (or any Eurodollar Office of such Lender) of making or maintaining any Eurodollar Loan, or to reduce the amount of any sum received or receivable by such Lender (or its Eurodollar Office) under this Agreement or under its Note with respect thereto, then upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay directly to such Lender such additional amount as will compensate such Lender for such increased cost or such reduction. (b) If any Lender shall reasonably determine that any change in, or the adoption or phase-in of, any applicable law, rule or regulation regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or any Person controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such controlling Person's capital as a consequence of such Lender's obligations hereunder or under any Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such change, adoption, phase-in or compliance (taking into consideration such Lender's or such controlling Person's policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, upon demand by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction. 8.2 Basis for Determining Interest Rate Inadequate or Unfair. If with respect to any Interest Period: (a) deposits in Dollars (in the applicable amounts) are not being offered to the Administrative Agent in the interbank eurodollar market for such Interest Period, or the Administrative Agent otherwise reasonably determines (which determination shall be binding and conclusive on the Borrowers) that by reason of circumstances affecting the interbank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable Eurodollar Rate; or (b) Lenders having an aggregate Percentage with respect to any applicable Facility of 25% or more advise the Administrative Agent that the Eurodollar Rate (Reserve Adjusted) as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of maintaining or funding Eurodollar Loans for such Interest Period (taking into account any amount to which such Lenders may be entitled under Section 8.1) or that the making or funding of Eurodollar Loans has become impracticable as a result of an event occurring after the date of this Agreement which in the opinion of such Lenders materially affects such Loans; then the Administrative Agent shall promptly notify the other parties thereof and, so long as such circumstances shall continue, (i) no Lender within the relevant Facility shall be under any obligation to make or convert into Eurodollar Loans and (ii) on the last day of the current Interest Period for each Eurodollar Loan, such Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan. 8.3 Changes in Law Rendering Eurodollar Loans Unlawful. If any change in, or the adoption of any new, law, rule or regulation, or any change in the interpretation of any applicable law, rule or regulation by any governmental or other regulatory body charged with the administration thereof, should make it (or in the good faith judgment of any Lender cause a substantial question as to whether it is) unlawful for any Lender to make, maintain or fund Eurodollar Loans, then such Lender shall promptly notify each of the other parties hereto and, so long as such circumstances shall continue, (a) such Lender shall have no obligation to make or convert into Eurodollar Loans (but shall make Base Rate Loans concurrently with the making of or conversion into Eurodollar Loans by the Lenders which are not so affected, in each case in an amount equal to the amount of Eurodollar Loans which would be made or converted into by such Lender at such time in the absence of such circumstances) and (b) on the last day of the current Interest Period for each Eurodollar Loan of such Lender (or, in any event, on such earlier date as may be required by the relevant law, regulation or interpretation), such Eurodollar Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan. Each Base Rate Loan made by a Lender which, but for the circumstances described in the foregoing sentence, would be a Eurodollar Loan (an "Affected Loan") shall remain outstanding for the same period as the Group of Eurodollar Loans of which such Affected Loan would be a part absent such circumstances. 8.4 Funding Losses. Each Borrower hereby agrees that upon demand by any Lender (which demand shall be accompanied by a statement setting forth the basis for the amount being claimed, a copy of which shall be furnished to the Administrative Agent), such Borrower will indemnify such Lender against any net loss or expense which such Lender may sustain or incur (including any net loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain any Eurodollar Loan), as reasonably determined by such Lender, as a result of (a) any payment, prepayment or conversion of any Eurodollar Loan of such Lender made to such Borrower on a date other than the last day of an Interest Period for such Loan (including any conversion pursuant to Section 8.3), (b) any failure of such Borrower to borrow, prepay, convert or continue any Eurodollar Loan on a date specified therefor in a notice of borrowing, prepayment, conversion or continuation pursuant to this Agreement or (c) any failure of such Borrower to convert any Base Rate Loan on a date specified therefor in a notice of conversion pursuant to this Agreement. For this purpose, all notices to the Administrative Agent pursuant to this Agreement shall be deemed to be irrevocable. 8.5 Right of Lenders to Fund through Other Offices. Each Lender may, if it so elects, fulfill its commitment as to any Eurodollar Loan by causing a foreign branch or Affiliate of such Lender to make such Loan; provided that in such event for the purposes of this Agreement such Loan shall be deemed to have been made by such Lender and the obligation of the applicable Borrower to repay such Loan shall nevertheless be to such Lender and shall be deemed held by it, to the extent of such Loan, for the account of such branch or Affiliate. 8.6 Discretion of Lenders as to Manner of Funding. Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained each Eurodollar Loan during each Interest Period for such Loan through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the Eurodollar Rate for such Interest Period. 8.7 Mitigation of Circumstances; Replacement of Lenders. (a) Each Lender shall promptly notify the Company and the Administrative Agent of any event of which it has knowledge which will result in, and will use reasonable commercial efforts available to it (and not, in such Lender's sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by any Borrower to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances described in Section 8.2 or 8.3 (and, if any Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to exist, such Lender shall promptly so notify the Company and the Administrative Agent). Without limiting the foregoing, each Lender will designate a different funding office if such designation will avoid (or reduce the cost to the applicable Borrower of) any event described in clause (i) or (ii) of the preceding sentence and such designation will not, in such Lender's sole judgment, be otherwise disadvantageous to such Lender. (b) If any Borrower becomes obligated to pay additional amounts to any Lender pursuant to Section 7.6 or 8.1, or any Lender gives notice of the occurrence of any circumstances described in Section 8.2 or 8.3, the Company may designate an Eligible Assignee which is acceptable to the Administrative Agent and the Issuing Lender in their reasonable discretion (such Eligible Assignee being called a "Replacement Lender") to purchase the Loans of such Lender and such Lender's rights hereunder, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding principal amount of the Loans payable to such Lender plus any accrued but unpaid interest on such Loans and all accrued but unpaid fees owed to such Lender and any other amounts payable to such Lender under this Agreement, and to assume all the obligations of such Lender hereunder, and, upon such purchase and assumption (pursuant to an Assignment Agreement), such Lender shall no longer be a party hereto or have any rights hereunder (other than rights with respect to indemnities and similar rights applicable to such Lender prior to the date of such purchase and assumption) and shall be relieved from all obligations to the Borrowers hereunder, and the Replacement Lender shall succeed to the rights and obligations of such Lender hereunder. 8.8 Conclusiveness of Statements; Survival of Provisions. Determinations and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be conclusive absent demonstrable error. Lenders may use reasonable averaging and attribution methods in determining compensation under Sections 8.1 and 8.4, and the provisions of such Sections shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit and termination of this Agreement. SECTION 9 REPRESENTATIONS AND WARRANTIES. To induce the Agents and the Lenders to enter into this Agreement and to induce the Lenders to make Loans and issue and participate in Letters of Credit hereunder, the Borrowers jointly and severally represent and warrant to the Agents and the Lenders that: 9.1 Organization. The Company is a corporation validly existing and in good standing under the laws of the State of Indiana; each Domestic Subsidiary is validly existing and in good standing under the laws of the jurisdiction of its organization; and each of the Company and each Domestic Subsidiary is duly qualified to do business in each jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect. 9.2 Authorization; No Conflict. Each of the Company and each other Loan Party is duly authorized to execute and deliver each Loan Document to which it is a party, the Company is duly authorized to borrow monies hereunder and each of the Company and each other Loan Party is duly authorized to grant Liens to the Administrative Agent for the benefit of the Lenders and to perform its obligations under each Loan Document to which it is a party. The execution, delivery and performance by the Company of this Agreement and by each of the Company and each other Loan Party of each Loan Document to which it is a party, and the borrowings by the Company hereunder, do not and will not (a) require any consent or approval of any governmental agency or authority (other than the Confirmation Order), (b) conflict with (i) any provision of law, (ii) the charter, by-laws or other organizational documents of the Company or any other Loan Party or (iii) any agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon the Company or any other Loan Party or any of their respective properties or (c) except for Liens in favor of the Administrative Agent for the benefit of the Lenders, require, or result in, the creation or imposition of any Lien on any asset of the Company, any Subsidiary or any Loan Party. 9.3 Validity and Binding Nature. Each of this Agreement and each other Loan Document to which the Company or any other Loan Party is a party has been duly executed and delivered by such Loan Party and is the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms. 9.4 Financial Condition. The audited consolidated financial statements of the Company and its Subsidiaries as at November 30, 1999 and the unaudited consolidated financial statements of the Company and the Subsidiaries as at July 31, 2000, copies of each of which have been delivered to each Lender, were prepared in accordance with GAAP (subject, in the case of such unaudited statements, to the absence of footnotes and to normal year-end adjustments) and present fairly the consolidated financial condition of the Company and its Subsidiaries as at such dates and the results of their operations for the periods then ended. 9.5 No Material Adverse Change. Other than arising as a result of the commencement of the Chapter 11 Cases, since July 31, 2000 there has been no material adverse change in the financial condition, operations, assets, business, properties or prospects of the Company and its Subsidiaries taken as a whole. 9.6 Litigation. Except as set forth on Schedule 9.6, there is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of the Borrowers, threatened against or affecting the Company or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect. 9.7 Assets and Properties. The Company and each of its Subsidiaries has good and marketable title to all of its assets and properties (tangible and intangible, real or personal) owned by it or a valid leasehold interest in all of its leased assets (except insofar as marketability may be limited by any laws or regulations of any governmental authority affecting such assets and the Liens on the Collateral permitted hereunder) (in each case necessary for the conduct of its business), and all such assets and property are free and clear of all Liens, except Liens securing the obligations of the Company and its Subsidiaries under the Loan Documents and Liens permitted under Section 10.8. On the Closing Date, substantially all of the assets and properties owned by, leased to or used by the Company and/or each Subsidiary (in each case necessary for the conduct of its business) are in adequate operating condition and repair, ordinary wear and tear excepted. 9.8 Subsidiaries. Schedule 9.8 hereto contains an accurate list of all of the Subsidiaries of the Company as of the Closing Date, setting forth their respective jurisdictions of incorporation and the percentage of their respective Capital Stock owned by the Company or other Subsidiaries. All of the issued and outstanding shares of Capital Stock of the Subsidiaries that are corporations have been duly authorized and issued and are fully paid and non-assessable, it being understood that the warranty in this sentence applies to Foreign Subsidiaries only to the extent such concepts are applicable under the laws of the jurisdictions of organization of such Foreign Subsidiaries. 9.9 ERISA. Neither the Company nor any ERISA Affiliate maintains or contributes to any Plan as of the Closing Date other than those listed on Schedule 9.9 hereto. Each Plan which is intended to be qualified under Section 401(a) of the Code as currently in effect has been determined by the IRS to be so qualified, and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a) of the Code as currently in effect. Except as disclosed in Schedule 9.9, neither the Company nor any Subsidiary maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. The Company and all its ERISA Affiliates are in compliance in all material respects with the responsibilities, obligations or duties imposed on them by ERISA, the Code and regulations promulgated thereunder with respect to all Plans. No Benefit Plan has incurred any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code), whether or not waived. Neither the Company nor any ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Code or (ii) has taken or failed to take any action which would constitute or result in a Termination Event that, in either case, could result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has any material liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, (i) on account of any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. Neither the Company nor any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each Benefit Plan and furnished to the Lenders is complete and accurate. Since the date of each such Schedule B, there has been no material adverse change in the funding status or financial condition of the Benefit Plan relating to such Schedule B. Neither the Company nor any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) suffered a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. Neither the Company nor any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the Code on or before the due date for such installment or other payment. Neither the Company nor any ERISA Affiliate is required to provide security to a Benefit Plan under Section 401(a)(29) of the Code due to a Plan amendment that results in an increase in current liability for the plan year. Except as disclosed on Schedule 9.9, the Company does not have, by reason of the transactions contemplated hereby any obligation to make any payment to the employee pursuant to any Plan or existing contract or arrangement. The Company has given to the Administrative Agent copies of all of the following: each Benefit Plan and related trust agreement (including all amendments to such Plan and trust) in existence or committed to as of the Closing Date and in respect to which the Company or any ERISA Affiliate is currently an "employer" as defined in Section 3(5) of ERISA, and the most recent actuarial report, determination letter issued by the IRS and Form 5500 filed in respect of each such Benefit Plan in existence; a listing of all of the Multiemployer Plans currently contributed to by the Company or any ERISA Affiliate with the aggregate amount of the most recent annual contributions required to be made by the Company and all ERISA Affiliates to each such Multiemployer Plan, any information which has been provided to the Company or an ERISA Affiliate regarding withdrawal liability under any Multiemployer Plan and the collective bargaining agreement pursuant to which such contribution is required to be made. For purposes of this Section 9.9 and Section 10.15 below, the Company and any ERISA Affiliate shall be deemed to know all facts known by the administrator of any Plan of which the Company or any ERISA Affiliate is the plan sponsor. 9.10 Investment Company Act. Neither the Company nor any Subsidiary is an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940. 9.11 Public Utility Holding Company Act. Neither the Company nor any Subsidiary is a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935. 9.12 Regulation U. The Company is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. Margin Stock constitutes less than 25% of those assets of the Company and its Subsidiaries which are subject to any limitation on sale, pledge or other restriction hereunder. 9.13 Taxes. The Company and its Subsidiaries have filed all United States federal income tax returns and all other material tax returns which are required to be filed and have paid all material taxes due pursuant to said returns or pursuant to any assessment received by the Company or any of its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The statute of limitations for assessment or collection of taxes with respect to United States consolidated income tax returns of the Company and its Subsidiaries has expired for all tax periods prior to November 30, 1997. To the best of the Company's knowledge, its Subsidiaries have filed all income tax returns and all other material tax returns which are required to be filed pursuant to the laws of the jurisdiction of their incorporation and any division thereof and have paid all material taxes due pursuant to said returns or pursuant to any assessment received by any of such Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of any taxes or other governmental charges are adequate. 9.14 Compliance with Environmental Laws. Except as set forth on Schedule 9.6, neither the Company nor any Subsidiary has notice or knowledge of any violation of any applicable Federal, state, regional, departmental or local laws, statutes, rules, regulations or ordinances relating to public health, safety or the environment, including, without limitation, relating to releases, discharges, emissions or disposals of any Hazardous Substance to air, water, land or ground water, to the withdrawal or use of ground water, to the use, handling or disposal of polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde, to the treatment, storage, disposal or management of Hazardous Substances or to exposure to Hazardous Substances (collectively, "Environmental Laws") which violation could reasonably be expected to have a Material Adverse Effect. The total liability arising out of any environmental matters, if adversely determined, would not reasonably be expected to exceed $500,000. 9.15 Insurance. Set forth on Schedule 9.15 is a complete and accurate summary of the property and casualty insurance program of the Company and its Domestic Subsidiaries as of the Closing Date (including the names of all insurers, policy numbers, expiration dates, amounts and types of coverage, annual premiums, exclusions, deductibles, self-insured retention, and a description in reasonable detail of any self-insurance program, retrospective rating plan, fronting arrangement or other risk assumption arrangement involving the Company or any Domestic Subsidiary). As of the Closing Date, such insurance is in effect and is customary for businesses of the size and character of the Company. 9.16 Real Property. Set forth on Schedule 9.16 is a complete and accurate list, as of the Closing Date, of the addresses of all real property owned or leased by the Company or any Domestic Subsidiary, together with, in the case of leased property, the name and mailing address of the lessor of such property. 9.17 Information. All information heretofore or contemporaneously herewith furnished in writing by the Company or any other Loan Party to the Administrative Agent or any Lender for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent or any Lender pursuant hereto or in connection herewith, taken as a whole, will be, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in any material respect in light of the circumstances under which made as of the dates thereof (it being recognized by the Administrative Agent and the Lenders that any projections and forecasts provided by the Company are based on good faith estimates and assumptions believed by the Company to be reasonable as of the date that the applicable projections or assumptions were furnished to the Lenders and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results). 9.18 Intellectual Property. Except as set forth on Schedule 9.6, the Company and each Subsidiary owns and possesses or has a license or other right to use all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights and copyrights as are necessary for the conduct of the business of the Company and its Subsidiaries, without any infringement upon rights of others which could reasonably be expected to have a Material Adverse Effect. 9.19 Burdensome Obligations. Neither the Company nor any Subsidiary is a party to any agreement or contract or subject to any corporate or partnership restriction which might reasonably be expected to have a Material Adverse Effect. 9.20 Labor Matters. Except as set forth on Schedule 9.20, neither the Company nor any Domestic Subsidiary is subject to any labor or collective bargaining agreement. There are no existing or threatened strikes, lockouts or other labor disputes involving the Company or any Domestic Subsidiary that singly or in the aggregate could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Company and its Domestic Subsidiaries are not in violation of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such matters. 9.21 No Default. No Event of Default or Unmatured Event of Default exists or would result from the incurrence by the Loan Parties of any Debt hereunder or under any other Loan Document. 9.22 Contingent Obligations. Other than any liability incident to any pending litigation, arbitration or proceedings, neither the Company nor any Subsidiary has material contingent obligations as of the Closing Date not provided for or disclosed in the financial statements referred to in Section 9.4. 9.23 Foreign Employee Benefit Matters. Each Foreign Employee Benefit Plan is in compliance in all respects with all laws, regulations and rules applicable thereto and the respective requirements of the governing documents for such Plan, except for any non-compliance the consequences of which, in the aggregate, would not result in a Material Adverse Effect. The aggregate of the accumulated benefit obligations under all Foreign Pension Plans does not exceed the current fair market value of the assets held in the trusts or similar funding vehicles for such Plans or reasonable reserves have been established in accordance with prudent business practices or as required by GAAP with respect to any shortfall, except to the extent that failure to do so would not result in a Material Adverse Effect. With respect to any Foreign Employee Benefit Plan maintained or contributed to by the Company or any Subsidiary or any member of its Controlled Group (other than a Foreign Pension Plan), reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such Plan is maintained, except to the extent that failure to do so would not result in a Material Adverse Effect. There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary or any ERISA Affiliate with respect to any Foreign Employee Benefit Plan. 9.24 Capitalization of the Company; Reservation of Shares; Other Matters Relating to Capital Stock. (a) As of the Closing Date, the authorized capital stock of the Company consists solely of 30,000,000 shares of common stock, no par value per share ("Common Stock"), and 5,000,000 special shares (the "Special Shares"); of the Special Shares, as of the Closing Date, 1,700,000 shares of ESOP Convertible Voting Preferred Stock (the "ESOP Preferred Stock") have been designated and 25,000 shares of Lender Preferred have been designated. As of the Closing Date, of the authorized capital stock of the Company (assuming no Warrant is exercised), 4,500,000 shares of Common Stock, 960,000 (including treasury shares) shares of ESOP Preferred Stock and 10,000 shares of Lender Preferred are issued and outstanding. All of such outstanding capital stock is validly issued, fully paid and nonassessable and has been issued in compliance with all applicable securities laws. As of the Closing Date, except as set forth on Schedule 9.24 and except for the Warrants, the Lender Preferred and the ESOP Preferred Stock, there are no existing options, convertible securities, warrants, calls, pledges, transfer restrictions (except restrictions imposed by federal and state securities laws), liens, rights of first offer, rights of first refusal, antidilution provisions or commitments of any character created by or binding upon the Company or to which the Company is a party relating to any issued or unissued shares of capital stock of the Company. As of the Closing Date, and except for the Warrants, the Lender Preferred and the ESOP Preferred Stock, there are no preemptive or other preferential rights applicable to the issuance and sale of equity securities (or securities convertible or exercisable into or exchangeable for equity securities) of the Company. (b) As of the Closing Date, sufficient shares of authorized but unissued shares of Common Stock have been reserved by appropriate corporate action in connection with the prospective exercise of the Series A Warrants. The issuance of the Series A Warrants will not (x) require any further corporate action by the stockholders or directors of the Company, (y) be subject to any statutory or contractual preemptive rights of any present or future stockholders of the Company or (z) conflict with any provision of any agreement to which the Company is a party or by which the Company is bound. All shares of Common Stock issuable upon exercise of the Series A Warrants in accordance with their terms will be validly authorized, fully paid and nonassessable. (c) The offer, sale and issuance to the Lenders of the Lender Preferred, the Series A Warrants and the shares of Common Stock issuable upon exercise thereof do not require registration under the Securities Act of 1933 or any applicable federal or state securities laws. SECTION 10 COVENANTS. Until the expiration or termination of the Commitments and thereafter until all obligations of the Borrowers hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated, the Borrowers jointly and severally agree that, unless at any time the Required Lenders shall otherwise expressly consent in writing, they will: 10.1 Reports, Certificates and Other Information. Furnish to the Administrative Agent (with sufficient copies to provide one to each Lender): 10.1.1 Annual Report. Promptly when available and in any event within 90 days after the close of each Fiscal Year: (a) a copy of the annual audit report of the Company and its Subsidiaries for such Fiscal Year, including therein consolidated balance sheets and statements of operations and cash flows of the Company and its Subsidiaries as at the end of such Fiscal Year, audited by PricewaterhouseCoopers L.L.P. or other independent auditors of recognized standing selected by the Company and reasonably acceptable to the Required Lenders, together with a written statement from such accountants to the effect that in making the examination necessary for the signing of such annual audit report by such accountants, nothing came to their attention that caused them to believe that the Company was not in compliance with any provision of Section 10.6, 10.7 or 10.9 of this Agreement insofar as such provision relates to accounting matters or, if something has come to their attention that caused them to believe that the Company was not in compliance with any such provision, describing such non-compliance in reasonable detail; and (b) consolidating balance sheets of the Company and its Subsidiaries as of the end of such Fiscal Year and a consolidating statement of operations and a consolidated statement of cash flows for the Company and its Subsidiaries for such Fiscal Year, certified by the Chief Financial Officer, Controller or Finance Director of the Company. 10.1.2 Interim Reports. (a) Promptly when available and in any event within 45 days after the end of each Fiscal Quarter (other than the last Fiscal Quarter of any Fiscal Year), unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of such Fiscal Quarter, together with unaudited consolidated statements of operations and cash flows for such Fiscal Quarter and for the period beginning with the first day of such Fiscal Year and ending on the last day of such Fiscal Quarter, together with a comparison with the corresponding period of the previous Fiscal Year and a comparison with the Budget for such period of the current Fiscal Year, certified by the Chief Financial Officer, Controller or Finance Director of the Company; and (b) promptly when available and in any event within 30 days after the end of each month that is not the end of a Fiscal Quarter, within 45 days after the end of each month that is the end of a Fiscal Quarter (other than the last Fiscal Quarter of any Fiscal Year), and within 90 days after the end of each month that is also the last month of a Fiscal Year, unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of such month, together with unaudited consolidated and consolidating statements of operations and an unaudited consolidated statement of cash flows for such month and for the period beginning with the first day of such Fiscal Year and ending on the last day of such month, together with a comparison with the corresponding period of the previous Fiscal Year and a comparison with the Budget for such period of the current Fiscal Year, certified by the Chief Financial Officer, Controller or Finance Director of the Company. 10.1.3 Compliance Certificates. Contemporaneously with the furnishing of a copy of each annual audit report pursuant to Section 10.1.1 and each set of quarterly statements pursuant to Section 10.1.2, a duly completed compliance certificate in the form of Exhibit B (a "Compliance Certificate"), with appropriate insertions, dated the date of such annual report or such quarterly statements and signed by the Chief Financial Officer, Controller or Finance Director of the Company, containing (i) a computation of each of the financial ratios and restrictions set forth in Section 10.6 and a statement to the effect that such officer has not become aware of any Event of Default or Unmatured Event of Default that has occurred and is continuing or, if there is any such event, describing it and the steps, if any, being taken to cure it and (ii) a written statement of the Company's management setting forth a discussion of the Company's financial condition, changes in financial condition and results of operations. 10.1.4 Reports to the SEC and to Shareholders. Promptly upon the filing or sending thereof, copies of all regular, periodic or special reports of the Company or any Subsidiary filed with the SEC; copies of all registration statements of the Company or any Subsidiary filed with the SEC (other than on Form S-8); and copies of all proxy statements or other communications made to security holders generally. 10.1.5 Notice of Default and Litigation. Promptly upon becoming aware of any of the following, written notice describing the same and the steps being taken by the Company or the Subsidiary affected thereby with respect thereto: (a) the occurrence of an Event of Default or an Unmatured Event of Default; (b) any litigation, arbitration or governmental investigation or proceeding not previously disclosed by the Company to the Lenders which has been instituted or, to the knowledge of the Company, is threatened against the Company or any Subsidiary or to which any of the properties of any thereof is subject which might reasonably be expected to have a Material Adverse Effect; (c) any cancellation or material adverse change in any insurance maintained by the Company or any Domestic Subsidiary; or (d) any other event (including (i) any violation of any environmental law or the assertion of any environmental claim or (ii) the enactment or effectiveness of any law, rule or regulation) which might reasonably be expected to have a Material Adverse Effect. 10.1.6 Borrowing Base Certificates. Within two Business Days of the end of each week, a Borrowing Base Certificate dated as of the end of such week and executed by the Chief Financial Officer, Controller or Finance Director of the Company on behalf of the Company (provided that (i) the Company may deliver a Borrowing Base Certificate more frequently if it chooses and (ii) at any time an Event of Default exists, the Administrative Agent may require the Company to deliver Borrowing Base Certificates more frequently). It is understood that information included on Borrowing Base Certificates as to Eligible Inventory and Eligible PP&E will not change on a weekly basis, but will be updated when the Company closes its books at the end of each month. 10.1.7 Projections. (a) As soon as practicable, and in any event within 30 days after the commencement of each Fiscal Year, financial projections for the Company and its Subsidiaries for such Fiscal Year (including an operating budget and a cash flow budget (the "Budget")) prepared on a month by month basis and otherwise in a manner reasonably satisfactory to the Administrative Agent, accompanied by a certificate of the Chief Financial Officer, Controller or Finance Director of the Company on behalf of the Company to the effect that (i) such projections were prepared by the Company in good faith, (ii) such projections were based on good faith estimates and assumptions believed by the Company to be reasonable at the time when made and (iii) such projections have been prepared in accordance with such assumptions and estimates. (b) Within 30 days of the end of each month, a reconciliation of the operating results for such month with the Budget for such month, in form and substance satisfactory to the Administrative Agent. 10.1.8 Management Reports. Promptly upon receipt thereof, copies of all detailed financial and management reports submitted to the Company by independent auditors in connection with each annual audit or interim review made by such auditors of the books of the Company. 10.1.9 Cash Flow Forecasts. As soon as practicable and in any event within five Business Days following the end of each week, (i) a rolling thirteen week cash flow forecast for the Company and its Domestic Subsidiaries on a consolidated and consolidating basis in reasonable detail and (ii) a report in the form of Exhibit C comparing the actual cash flow of the Company and its Domestic Subsidiaries for such week on a consolidated and consolidating basis to the cash flow forecast for such week delivered to the Administrative Agent pursuant to clause (i) of this Section 10.1.9, together with an explanation in reasonable detail of any variance and a certification from the Chief Financial Officer, Controller or Finance Director of the Company as to the accuracy of all actual receipts and disbursements set forth therein. 10.1.10 Subordinated Debt Notices. Promptly from time to time, copies of any notices (including notices of default or acceleration) received from any holder or trustee of, under or with respect to any Subordinated Debt. 10.1.11 No Default Certificate. If the Company has not submitted either a Borrowing Certificate or a Compliance Certificate for any period of thirty consecutive days, the Company shall deliver to the Agent a certificate of the Chief Financial Officer, Controller or Finance Director of the Company to the effect that such officer has not become aware of any Event of Default or Unmatured Event of Default that has occurred and is continuing or, if there is any such event, describing it and the steps, if any, being taken to cure it. 10.1.12 Other Information. Promptly from time to time, such other information concerning the Company and its Subsidiaries as any Lender or the Administrative Agent may reasonably request. 10.2 Books, Records and Inspections. Keep, and cause each Subsidiary to keep, its books and records in accordance with sound business practices sufficient to allow the preparation of financial statements in accordance with GAAP; permit, and cause each Subsidiary to permit, any Lender or the Administrative Agent or any representative thereof to inspect the properties and operations of the Company or such Subsidiary at reasonable times and with reasonable notice (or at any time without notice if an Event of Default exists); and permit, and cause each Subsidiary to permit, at any reasonable time and with reasonable notice (or at any time without notice if an Event of Default exists), any Lender or the Administrative Agent or any representative thereof to visit any or all of its offices, to discuss its financial matters with its officers and the independent auditors of the Borrowers (and each Borrower hereby authorizes such independent auditors to discuss such financial matters with any Lender or the Administrative Agent or any representative thereof), and to examine (and, at the expense of the Company or the applicable Subsidiary, photocopy extracts from) any of its books or other records (provided that any discussions between any Lender or Agent and the Company's auditors shall be with the right of a representative of the Company to be in attendance); and permit, and cause each Subsidiary to permit, at reasonable times and with reasonable notice (or at any time without notice if an Event of Default exists) the Administrative Agent and its representatives to inspect the Inventory and other tangible assets of the Company or such Subsidiary, to perform appraisals of the property, buildings, furniture, fixtures and equipment of the Company or such Subsidiary, and to inspect, audit, check and make copies of and extracts from the books, records, computer data, computer programs, journals, orders, receipts, correspondence and other data relating to Inventory, Accounts Receivable, plants, buildings, furniture, fixtures, equipment and any other collateral. All such inspections or audits may be made as frequently as the Lenders and the Agents elect. All such inspections or audits by the Administrative Agent shall be at the Company's expense. 10.3 Maintenance of Property; Insurance. (a) Keep, and cause each Subsidiary to keep, all property useful and necessary in the business of the Company or such Subsidiary in good working order and condition, ordinary wear and tear excepted. (b) Maintain, and cause each Subsidiary to maintain, with responsible insurance companies, such insurance as may be required by any law or governmental regulation or court decree or order applicable to it and such other insurance, to such extent and against such hazards and liabilities, and with such deductibles, as is customarily maintained by companies similarly situated; and, upon request of the Administrative Agent or any Lender, furnish to the Administrative Agent or such Lender a certificate setting forth in reasonable detail the nature and extent of all insurance maintained by the Company and its Subsidiaries. The Company shall cause each issuer of an insurance policy covering the Company or any Domestic Subsidiary to provide the Administrative Agent with an endorsement (i) showing loss payable to the Administrative Agent with respect to each policy of property or casualty insurance and naming the Administrative Agent and each Lender as an additional insured with respect to each policy of insurance for liability for personal injury or property damage, (ii) providing that 30 days' notice will be given to the Administrative Agent prior to any cancellation of, material reduction or change in coverage provided by or other material modification to such policy and (iii) reasonably acceptable in all other respects to the Administrative Agent. The Company shall, or shall cause the applicable Domestic Subsidiary to, execute and deliver to the Administrative Agent a collateral assignment, in form and substance reasonably satisfactory to the Administrative Agent, of each business interruption insurance policy maintained by the Company or any Domestic Subsidiary. 10.4 Compliance with Laws; Payment of Taxes and Liabilities. (a) Comply, and cause each Subsidiary to comply, in all material respects with all applicable laws, rules, regulations, decrees, orders, judgments, licenses and permits; and (b) pay, and cause each Subsidiary to pay, prior to delinquency, all taxes and other governmental charges against it or any of its property, as well as claims of any kind which, if unpaid, might become a Lien on any of its property; provided that the foregoing shall not require the Company or any Subsidiary to pay any such tax or charge so long as it shall contest the validity thereof in good faith by appropriate proceedings and shall set aside on its books adequate reserves with respect thereto in accordance with GAAP. 10.5 Maintenance of Existence, etc. Maintain and preserve, and (subject to Section 10.10) cause each Material Subsidiary to maintain and preserve, (a) its existence and good standing in the jurisdiction of its organization and (b) its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification necessary (except in those instances in which the failure to be qualified or in good standing does not have a Material Adverse Effect). 10.6 Financial Covenants. When used in this Section 10.6, the designation "TBN" opposite any date means that the covenant level applicable to such date is to be negotiated in good faith by the Company and the Required Lenders for such date as promptly as practicable after the Company has delivered the projections referred to in Section 10.1.7 to the Lenders with respect to the Fiscal Year containing such date. 10.6.1 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage Ratio as of the last day of any Computation Period set forth below to be less than the applicable ratio set forth below for such Computation Period: COMPUTATION FIXED CHARGE PERIOD ENDING COVERAGE RATIO February 28, 2001 0.30:1.0 May 31, 2001 0.40:1.0 August 31, 2001 0.90:1.0 November 30, 2001 1.20:1.0 February 28, 2002 through August 31, 2002 TBN November 30, 2002 0.70:1.0 February 28, 2003 through August 31, 2003 TBN November 30, 2003 0.80:1.0 February 29, 2004 through August 31, 2004 TBN November 30, 2004 0.80:1.0 February 28, 2005 through August 31, 2005 TBN November 30, 2005 and thereafter 0.70:1.0. 10.6.2 Interest Coverage Ratio. Not permit the Interest Coverage Ratio as of the last day of any Computation Period set forth below to be less than the applicable ratio set forth below for such Computation Period: COMPUTATION INTEREST PERIOD ENDING COVERAGE RATIO February 28, 2001 1.00:1.0 May 31, 2001 1.30:1.0 August 31, 2001 1.80:1.0 November 30, 2001 2.00:1.0 February 28, 2002 through August 31, 2002 TBN November 30, 2002 1.95:1.0 February 28, 2003 through August 31, 2003 TBN November 30, 2003 1.75:1.0 February 29, 2004 through August 31, 2004 TBN November 30, 2004 1.55:1.0 February 28, 2005 through August 31, 2005 TBN November 30, 2005 and thereafter 1.35:1.0. 10.6.3 Senior Debt to EBITDA Ratio. Not permit the Senior Debt to EBITDA Ratio as of the last day of any Computation Period set forth below to exceed the applicable ratio set forth below for such Computation Period: COMPUTATION SENIOR DEBT TO PERIOD ENDING EBITDA RATIO February 28, 2001 9.30:1.0 May 31, 2001 8.00:1.0 August 31, 2001 6.25:1.0 November 30, 2001 6.20:1.0 February 28, 2002 through August 31, 2002 TBN November 30, 2002 4.25:1.0 February 28, 2003 through August 31, 2003 TBN November 30, 2003 3.75:1.0 February 29, 2004 through August 31, 2004 TBN November 30, 2004 3.00:1.0 February 28, 2005 and thereafter 3.10:1.0. 10.6.4 Total Debt to EBITDA Ratio. Not permit the Total Debt to EBITDA Ratio as of the last day of any Computation Period set forth below to exceed the applicable ratio set forth below for such Computation Period: COMPUTATION TOTAL DEBT TO PERIOD ENDING EBITDA RATIO February 28, 2001 10.45:1.0 May 31, 2001 9.00:1.0 August 31, 2001 7.00:1.0 November 30, 2001 6.90:1.0 February 28, 2002 through August 31, 2002 TBN November 30, 2002 4.75:1.0 February 28, 2003 through August 31, 2003 TBN November 30, 2003 4.20:1.0 February 29, 2004 through August 31, 2004 TBN November 30, 2004 3.70:1.0 February 28, 2005 and thereafter 3.60:1.0. 10.6.5 EBITDA. Not permit EBITDA as of the last day of any Computation Period set forth below to be less than the applicable amount set forth below for such Computation Period: COMPUTATION PERIOD ENDING EBITDA November 30, 2000 $22,000,000 February 28, 2001 $28,000,000 May 31, 2001 $33,000,000 August 31, 2001 $42,000,000 November 30, 2001 $43,000,000 February 28, 2002 through August 31, 2002 TBN November 30, 2002 $62,000,000 February 28, 2003 through August 31, 2003 TBN November 30, 2003 $68,000,000 February 28, 2004 and thereafter $73,000,000. 10.6.6 Capital Expenditures. Not permit the aggregate amount of all Capital Expenditures made by the Company and its Subsidiaries during any Fiscal Year set forth below to exceed the amount set forth below across from such Fiscal Year: FISCAL YEAR AMOUNT 2001 $16,780,000 2002 $13,750,000 2003 and each Fiscal Year thereafter $10,000,000; provided, however, that to the extent Capital Expenditures actually made by the Company and its Subsidiaries in any Fiscal Year are less than the amount permitted to be made in such Fiscal Year (without giving effect to any carryforward), the lesser of (x) the amount of the difference and (y) $5,000,000 may be carried forward and used to make Capital Expenditures in the next succeeding Fiscal Year; provided, further, however, that in any Fiscal Year the Company and its Subsidiaries may only use a carryforward to such Fiscal Year if the entire amount set forth in the table above for such Fiscal Year has been utilized. 10.7 Limitations on Debt. Not, and not permit any Subsidiary to, create, incur, assume or suffer to exist any Debt, except: (a) obligations under this Agreement and the other Loan Documents; (b) Debt secured by Liens permitted by Section 10.8(d), and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Debt at any time outstanding shall not exceed $1,000,000; (c) Debt of Subsidiaries to the Company or to a Wholly-Owned Domestic Subsidiary; (d) unsecured Debt of the Company to Domestic Subsidiaries; (e) Subordinated Debt; (f) Hedging Obligations incurred for bona fide hedging purposes and not for speculation; (g) Debt of Foreign Subsidiaries in a Dollar Amount not to exceed $50,000,000 at any one time outstanding; (h) Debt of Foreign Subsidiaries of the Company to other Foreign Subsidiaries to the extent permitted by Section 10.20; (i) Debt of Subsidiaries to the Company and its Wholly-Owned Domestic Subsidiaries and Debt of the Company to Wholly-Owned Domestic Subsidiaries, in each case pursuant to management, tax sharing and other similar agreements consistent with past practices; (j) Suretyship Liabilities of the Company or any Domestic Subsidiary in connection with the guaranty of any Debt of the Company or any other Domestic Subsidiary permitted under this Section or other obligations of the Company or any other Domestic Subsidiary not prohibited by this Agreement; (k) Suretyship Liabilities of any Foreign Subsidiary in connection with the guaranty of any Debt of any other Foreign Subsidiary permitted under this Section or other obligations of any other Foreign Subsidiary not prohibited by this Agreement; (l) Debt representing a refinancing of all of the Special Loans, so long as the covenants, pricing and other terms of such Debt have been approved in writing by the Required Lenders; (m) Debt of the Company to Foreign Subsidiaries to finance prepayment obligations of the Company arising under Section 6.2.2(a)(i) or (ii), provided such Debt is subordinated to the Loans and other obligations of the Company hereunder and all Hedging Obligations of the Company to Lenders or Affiliates thereof pursuant to terms, and which is governed by other terms and provisions, that are satisfactory to the Administrative Agent in its sole discretion; and (n) additional Debt of the Company and its Subsidiaries in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding. It is understood that any Debt incurred in a foreign currency pursuant to clause (g) above shall continue to be permitted under this Section, notwithstanding any fluctuation in the Dollar Amount of such Debt, as long as the outstanding principal amount of such Debt (denominated in its original currency) does not exceed the maximum amount of such Debt (denominated in such currency) permitted to be outstanding on the date such Debt was incurred. 10.8 Liens. Not, and not permit any Subsidiary to, create or permit to exist any Lien on any of its real or personal properties, assets or rights of whatsoever nature (whether now owned or hereafter acquired), except: (a) Liens for taxes or other governmental charges (i) not at the time delinquent or (ii) thereafter payable without penalty or (iii) being contested in good faith by appropriate proceedings and, in each case, for which it maintains adequate reserves; (b) Liens arising in the ordinary course of business (such as (i) Liens of carriers, warehousemen, landlords, mechanics and materialmen and other similar Liens imposed by law and (ii) Liens incurred and deposits made in connection with worker's compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA) or in connection with leases, surety bonds, bids, performance bonds and similar obligations) for sums not overdue or being contested in good faith by appropriate proceedings and not involving any deposits (other than deposits made in the ordinary course of business to secure surety bonds, bids, performance bonds or leases not prohibited hereunder, in each case, in respect of obligations incurred in the ordinary course of business) or advances or borrowed money or the deferred purchase price of property or services and, in each case, for which it maintains adequate reserves; (c) Liens existing on the date hereof and listed on Schedule 10.8; (d) subject to the limitation set forth in Section 10.7(b), (i) Liens arising in connection with Capital Leases (and attaching only to the property being leased), (ii) Liens existing on property at the time of the acquisition thereof by the Company or any Subsidiary (and not created in contemplation of such acquisition) and (iii) Liens that constitute purchase money security interests on any property securing debt incurred for the purpose of financing all or any part of the cost of acquiring such property, provided that the related Debt represents not less than 75% nor more than 100% of the purchase price of the related assets and any such Lien attaches to such property within 90 days of the acquisition thereof and attaches solely to the property so acquired; (e) attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding $1,000,000 in the aggregate arising in connection with court proceedings, provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings; (f) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens not interfering in any material respect with the ordinary conduct of the business of the Company or any Subsidiary; (g) Liens in favor of the Administrative Agent and the Lenders securing the obligations under the Loan Documents; (h) Liens on the assets of Foreign Subsidiaries created through the sale, assignment or discounting of "traites" or trade receivables or invoices; (i) Liens on the assets of Foreign Subsidiaries securing Debt and other obligations permitted to be incurred by such Foreign Subsidiaries under the terms hereof in an aggregate principal amount not to exceed $15,000,000 outstanding at any time; and (j) Liens not otherwise permitted by this Section so long as neither (i) the aggregate outstanding principal amount of obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds $500,000 at any one time. 10.9 Restricted Payments. Not, and not permit any Subsidiary to, (a) make any distribution on its Capital Stock to any of its shareholders, (b) purchase or redeem any of its Capital Stock, (c) pay any management fees or similar fees to any of its shareholders or any Affiliate thereof (other than reasonable compensation paid to directors that are designees of shareholders), (d) make any redemption, prepayment, defeasance or repurchase of any Subordinated Debt or (e) set aside funds for any of the foregoing. Notwithstanding the foregoing, (i) any Subsidiary may (A) pay dividends or management or similar fees or make other distributions to the Company or to a Wholly-Owned Domestic Subsidiary and (B) purchase or redeem its Capital Stock from a Wholly-Owned Domestic Subsidiary, (ii) the Company may purchase or redeem shares of ESOP Preferred Stock issued to its employees under the ESOP in connection with the termination of such employee's employment with the Company or its Subsidiaries for consideration not in excess of $25.00 per share and may pay dividends on the ESOP Preferred Stock to fulfill the Company's obligations in connection with its agreements with the ESOP, (iii) any Wholly-Owned Foreign Subsidiary may (A) pay dividends or management or similar fees or make other distributions to the Company or a Wholly-Owned Foreign Subsidiary and (B) purchase or redeem its Capital Stock from the Company or a Wholly-Owned Foreign Subsidiary, (iv) the Company may make dividend payments on the Lender Preferred in accordance with the Restated Charter, (v) the Company may redeem the Lender Preferred upon payment in full of the Special Loans in accordance with the Restated Charter and (vi) the Company may make payments of management fees and similar fees to Tokheim Services LLC consistent with past practice. 10.10 Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership, membership or joint venture interest in, any other Person, or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (i) any Wholly-Owned Subsidiary into, with or to the Company or any Wholly-Owned Domestic Subsidiary (provided that (x) no Foreign Subsidiary may merge into or with the Company or any Domestic Subsidiary and (y) in the case of the merger of any Subsidiary with the Company, the Company shall be the surviving corporation) or (ii) any Wholly-Owned Foreign Subsidiary into, with or to any other Wholly-Owned Foreign Subsidiary; (b) any such purchase or other acquisition by (i) the Company or any Wholly-Owned Domestic Subsidiary of the assets or stock of any Wholly-Owned Subsidiary or (ii) any Wholly-Owned Foreign Subsidiary of the assets or stock of any Wholly-Owned Foreign Subsidiary; (c) dispositions of assets in the ordinary course of business; (d) dispositions of property that is substantially worn, damaged or obsolete; (e) sales, assignments or discounting by Foreign Subsidiaries of "traites" (within the meaning of French law) or similar post-dated checks or trade receivables or invoices without recourse in the ordinary course of business; (f) any other Asset Sale (including the stock of any Subsidiary) so long as (i) at least 85% of the proceeds of such Asset Sale are in cash, (ii) the Net Cash Proceeds thereof are applied as provided in Section 6.2.2 and (iii) the consideration received at the time of such Asset Sale is at least equal to the fair market value of the assets sold or otherwise disposed of (as determined by the Company acting in good faith); and (g) purchases and acquisitions of Investments permitted by Section 10.20; provided that (i) no action otherwise permitted by clause (f) above shall be permitted at any time if an Event of Default or Unmatured Event of Default exists or would result therefrom and (ii) if any Asset Sale permitted by clause (f) above involves aggregate payments or value in excess of $3,000,000, the Board of Directors of the Company, acting in good faith, shall have made the determination referred to in clause (f)(iii) above. 10.11 Modification of Organizational Documents. Not permit the Certificate or Articles of Incorporation, By-Laws or other organizational documents of the Company or any Subsidiary to be amended or modified in any way which might reasonably be expected to materially adversely affect the interests of the Lenders. 10.12 Use of Proceeds. Use the proceeds of the Loans, and the Letters of Credit, solely for general corporate purposes; and not use or permit any proceeds of any Loan to be used either directly or indirectly for the purpose, whether immediate, incidental or ultimate, of "purchasing or carrying" any Margin Stock. 10.13 Further Assurances. (a) Take, execute and deliver, and cause each Subsidiary to take, execute and deliver, any and all such further acts, deeds, conveyances, security agreement, mortgages, assignments, estoppel certificates, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as the Administrative Agent or the Majority Lenders, as the case may be, may reasonably request from time to time in order (1) to ensure that (i) the obligations of the Loan Parties hereunder and under the other Loan Documents are secured by substantially all assets of the Company (provided that the pledge of the capital stock of a Foreign Subsidiary shall be limited to 65% of the outstanding capital stock of such Subsidiary to the extent necessary to avoid material adverse tax consequences to the Company) and guaranteed by all Domestic Subsidiaries (including, promptly upon the acquisition or creation thereof, any Domestic Subsidiary created or acquired after the date hereof) and (ii) the obligations of the Loan Parties under the Loan Documents are secured by substantially all of the assets of each Domestic Subsidiary (provided that the pledge of the capital stock of a Foreign Subsidiary shall be limited to 65% of the outstanding capital stock of such Subsidiary to the extent necessary to avoid material adverse tax consequences to the Company), (2) to perfect and maintain the validity, effectiveness and priority of the Liens intended to be created under the Collateral Documents and (3) to better assure, convey, grant, assign, transfer, preserve, protect and confirm to the Agent and the Lenders the rights granted or now or hereafter intended to be granted to the Agent and the Lenders under any Loan Document or under any other document executed in connection therewith. (b) (i) Use commercially reasonable efforts to obtain, as soon as practicable after the Closing Date, (x) the consent of the landlord (and, if applicable, overlandlord) of the real property to be subleased by MSI in Highlands, Colorado (currently under negotiation) (the "Colorado Property") to the granting of a Mortgage in favor of the Administrative Agent, for the benefit of the Lenders, on such property and (y) an accurate and complete legal description for the Colorado Property; (ii) use commercially reasonable efforts to cause, as soon as practicable after the Closing Date, a memorandum of sublease with respect to the Colorado Property, duly executed by the landlord thereof and acknowledged (and, if applicable, a memorandum of lease duly executed by the overlandlord thereof and acknowledged) to be filed in the appropriate real estate records; (iii) provided that the consent and legal description described in clauses (i) and (ii) are obtained, provide to the Administrative Agent, with respect to the Colorado Property, not later than the later of 45 days after the Closing Date or 20 days after the date on which the landlord (and, if applicable, overlandlord) of the Colorado Property provides the above- described consent (1) a duly executed Mortgage providing for a title insured Lien (subject only to such matters as the Administrative Agent shall reasonably agree), in favor of the Administrative Agent for the benefit of the Lenders, in all right, title and interest of MSI in the Colorado Property, (2) an ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the Administrative Agent, insuring the Administrative Agent's Lien on such real property and containing such endorsements as the Administrative Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be reasonably acceptable to the Administrative Agent), (3) copies of all documents of record concerning such real property as shown on the commitment for the ALTA Loan Title Insurance Policy referred to in clause (iii)(2) above, (4) original or certified copies of all insurance policies required to be maintained with respect to such real property by this Agreement, such Mortgage or any other Loan Document and (5) a flood insurance policy concerning the Colorado Property, reasonably satisfactory to the Administrative Agent, if required by the Flood Disaster Protection Act of 1973; and (iv) provide to the Administrative Agent, within 30 days after the Closing Date, with respect to the Company's owned unimproved real property depicted as Tract B and a portion of Tract A on that certain Boundary Description dated May 12, 1997, and last revised June 9, 1997, prepared by Mark L. Strong, Registered Land Surveyor of the State of Indiana, located at 10501 Corporate Drive, Fort Wayne, Indiana (the "Unimproved Indiana Property") (1) an ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the Administrative Agent, insuring the Administrative Agent's Lien on such property and containing such endorsements as the Administrative Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be reasonably acceptable to the Administrative Agent) and (2) copies of all documents of record concerning such real property as shown on the commitment for the ALTA Loan Title Insurance Policy referred to above. 10.14 Transactions with Affiliates. Not, and not permit any Subsidiary to, enter into, or cause, suffer or permit to exist any transaction, arrangement or contract with any of its Affiliates (other than the Company and its Subsidiaries) which is on terms that are less favorable than are obtainable from any Person which is not one of its Affiliates; provided that the foregoing shall not prohibit payments pursuant to director, officer and employee compensation arrangements that are on fair and reasonable terms. 10.15 ERISA and Foreign Employee Benefit Compliance. (a) Deliver or cause to be delivered to the Administrative Agent, at the Company's expense, the following information and notices as soon as reasonably possible, and in any event: (i) within ten Business Days after the Company or any ERISA Affiliate knows or has reason to know that a Termination Event has occurred, a written statement of the chief financial officer of the Company describing such Termination Event and the action, if any, which the Company or any ERISA Affiliate has taken, is taking or proposes to take with respect thereto, and when known, any action taken or threatened by the IRS, DOL or PBGC with respect thereto; (ii) within ten Business Days after the Company or any ERISA Affiliate knows or has reason to know that a non-exempt prohibited transaction (defined in Sections 406 of ERISA and 4975 of the Code) with respect to any Plan has occurred, a statement of the chief financial officer of the Company describing such transaction and the action which the Company or any ERISA Affiliate has taken, is taking or proposes to take with respect thereto; (iii) within ten Business Days after the request by the Administrative Agent or the Required Lenders therefor, copies of each annual report (Form 5500 Series), including Schedule B thereto, filed with respect to each Benefit Plan; (iv) within ten Business Days after request therefor by the Administrative Agent or the Required Lenders, copies of each actuarial report for any Benefit Plan or Multiemployer Plan and each annual report for any Multiemployer Plan; (v) within ten Business Days after the filing thereof with the IRS, a copy of each funding waiver request filed with respect to any Benefit Plan and all communications received by the Company or any ERISA Affiliate with respect to such request; (vi) within ten Business Days after the occurrence thereof, notification of any material increase in the benefits of any existing Plan or the establishment of any new Plan or the commencement of contributions to any Plan to which the Company or any ERISA Affiliate was not previously contributing; (vii) within ten Business Days after receipt by the Company or any ERISA Affiliate of written notice of the PBGC's intention to terminate a Benefit Plan or to have a trustee appointed to administer a Benefit Plan, copies of each such notice; (viii) within ten Business Days after receipt by the Company or any ERISA Affiliate of any unfavorable determination letter from the IRS regarding the qualification of a Plan under Section 401(a) of the Code, copies of each such letter; (ix) within ten Business Days after receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan regarding the imposition of withdrawal liability, copies of each such notice; (x) within ten Business Days after the Company or any ERISA Affiliate fails to make a required installment or any other required payment under Section 412 of the Code on or before the due date for such installment or payment, a notification of such failure; (xi) within ten Business Days after the Company or any ERISA Affiliate knows or has reason to know (1) a Multiemployer Plan has been terminated, (2) the administrator or plan sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan or (3) the PBGC has instituted or will institute proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan; and (xii) within ten Business Days after receipt by the Company of a written notice from the Administrative Agent or the Required Lenders, copies of any Foreign Employee Benefit Plan and related documents, reports and correspondence as requested by the Lenders in such notice. (b) Establish, maintain and operate, and cause each of its Subsidiaries and ERISA Affiliates to establish, maintain and operate, all Plans in compliance in all material respects with the provisions of ERISA, the Code, all other applicable laws, and the regulations and interpretations thereunder and the respective requirements of the governing documents for such Plans. (c) Establish, maintain and operate, and cause each of its Subsidiaries and ERISA Affiliates to establish, maintain and operate, all Foreign Employee Benefit Plans in compliance in all material respects with all laws, regulations and rules applicable thereto and the respective requirements of the governing documents for such Plans, except for failures to comply which, in the aggregate, would not result in a material obligation to pay money. 10.16 Environmental Matters. If any release or disposal of any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous substance as defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C. ss.9601(33) or any toxic substance, oil or hazardous material or other chemical or substance regulated by any Environmental Law (all of the foregoing, "Hazardous Substances") shall occur or shall have occurred on any real property or any other assets of the Company or any Subsidiary, the Company shall, or shall cause the applicable Subsidiary to, cause the prompt containment and removal of such Hazardous Substances and the remediation of such real property or other assets as necessary to comply in all material respects with all Environmental Laws and to preserve the value of such real property or other assets. Without limiting the generality of the foregoing, the Company shall, and shall cause each Subsidiary to, comply in all material respects with any valid Federal or state judicial or administrative order requiring the performance at any real property of the Company or any Subsidiary of activities in response to the release or threatened release of a Hazardous Substance. 10.17 Unconditional Purchase Obligations. Not, and not permit any Subsidiary to, enter into or be a party to any material contract for the purchase of materials, supplies or other property or services if such contract requires that payment be made by it regardless of whether delivery is ever made of such materials, supplies or other property or services. 10.18 Inconsistent Agreements; Subsidiary Support. Not, and not permit any Subsidiary to, enter into any agreement containing any provision which would (a) be violated or breached by any borrowing by the Company hereunder or by the performance by the Company or any Subsidiary of any of its obligations hereunder or under any other Loan Document, (b) prohibit the Company or any Subsidiary from granting to the Administrative Agent, for the benefit of the Lenders, a Lien on any of its assets or (c) except for the restrictions contained herein, create or permit to exist or become effective any encumbrance or restriction on the ability of any Subsidiary to (i) pay dividends or make other distributions to the Company or any other applicable Subsidiary, or pay any Debt owed to the Company or any other Subsidiary, (ii) make loans or advances to the Company or (iii) transfer any of its assets or properties to the Company, except in the cases of clauses (b) and (c)(iii) for customary non-assignment provisions in leases and restrictions contained in agreements governing purchase money Liens or Capital Leases (in which case, any prohibition shall only be effective against the assets financed thereby); so long as not prohibited by law, the Company and each Subsidiary shall cause each of their Subsidiaries to make cash payments, directly or indirectly, to the Company by way of dividends, advances, repayments of loans or advances, or other returns on investments, or by way of any other arrangement such that the Company shall have the ability to satisfy all interest and principal payments, including, without limitation, mandatory prepayments, required under the terms of this Agreement and each other Loan Document. 10.19 Business Activities. Not, and not permit any Subsidiary to, engage in any line of business other than the businesses engaged in on the date hereof and businesses reasonably related thereto. 10.20 Investments. Not, and not permit any Subsidiary to, make or permit to exist any Investment in any other Person, except (without duplication) the following: (a) contributions by the Company to the capital of any of its Wholly-Owned Domestic Subsidiaries, or by any such Subsidiary to the capital of any Wholly-Owned Domestic Subsidiary; (b) in the ordinary course of business, Investments by the Company in any Domestic Subsidiary or by any Subsidiary in the Company or in any Wholly-Owned Domestic Subsidiary, by way of intercompany loans, advances or guaranties, all to the extent permitted by Section 10.7; (c) Suretyship Liabilities permitted by Section 10.7(j) or (k); (d) Cash Equivalent Investments; (e) bank deposits in the ordinary course of business; (f) Investments in securities of account debtors received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such account debtors; (g) Investments existing on the date hereof and listed on Schedule 10.20; (h) Investments by Foreign Subsidiaries in the Company; (i) Investments by Foreign Subsidiaries in other Foreign Subsidiaries in order to effect cash management in the ordinary course of business; (j) Investments by Foreign Subsidiaries in other Foreign Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time; (k) Investments received in connection with the sale or other disposition of assets, to the extent such sale or other disposition is permitted hereunder; (l) Investments by the Company and Domestic Subsidiaries in Foreign Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time, provided that (i) all such Investments shall be in the form of Debt and evidenced by notes which shall be pledged to the Administrative Agent for the benefit of the Lenders and (ii) no such Investment shall be outstanding for a period in excess of 90 days; (m) a note from the Trust to the Company in a principal amount equal to the amount of Debt assumed by the Company pursuant to Section 14.20; (n) purchases of the stock of Wholly-Owned Foreign Subsidiaries by other Wholly-Owned Foreign Subsidiaries to the extent permitted by Section 10.10(a) and (b); (o) Investments in Foreign Subsidiaries arising as a result of the forgiveness of Debt owed by such Foreign Subsidiaries to the Company and its Subsidiaries in an aggregate amount of principal and interest not to exceed the minimum amount of such Debt required to be forgiven in order to maintain such Foreign Subsidiary in existence and good standing under the laws of such Foreign Subsidiary's jurisdiction of organization, provided that (i) the aggregate principal amount of Debt so forgiven owing to the Company and its Domestic Subsidiaries shall not exceed $128,100,000 and the aggregate amount of accrued interest so forgiven on Debt owing from Foreign Subsidiaries to the Company and its Domestic Subsidiaries shall not exceed $18,600,000 and (ii) the aggregate principal amount of Debt so forgiven owing to Foreign Subsidiaries shall not exceed $38,900,000 and the aggregate amount of accrued interest so forgiven on Debt owing from Foreign Subsidiaries to other Foreign Subsidiaries shall not exceed $4,300,000; and (p) other Investments approved in writing by the Required Lenders; provided that (x) any Investment which when made complies with the requirements of the definition of the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and (y) no Investment otherwise permitted by clause (b) or (c) shall be permitted to be made if, immediately before or after giving effect thereto, any Event of Default or Unmatured Event of Default exists, other than, in the case of clause (b), Investments in order to effect cash management in the ordinary course of business consistent with past practice. 10.21 Restriction of Amendments to ESOP and Related Documents. Not amend or otherwise modify, or waive any rights under, the ESOP or any agreements between the Company and the ESOP such as to increase in any manner the Company's obligations to redeem ESOP Preferred Stock or to pay dividends on the ESOP Preferred Stock under the ESOP from such obligations in effect on the date hereof. 10.22 Fiscal Year. Not change its Fiscal Year. 10.23 Prepayments, etc. of Debt. (a) Not, and not permit any Subsidiary to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Subordinated Debt (other than the Loans and the other obligations under the Loan Documents). (b) Not, and not permit any Subsidiary to, amend, modify or change in any manner any term or condition of any lease so that the terms and conditions thereof are less favorable to the Administrative Agent and the Lenders than the terms of such leases as of the Closing Date. (c) Not, and not permit any Subsidiary to, apply or elect to apply or direct any taxing authority to apply to future tax obligations of the Company or any Subsidiary any particular tax refund due to any such Person of $200,000 or more. SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC. The effectiveness of this Agreement and the obligation of each Lender to make its Loans and of the Issuing Lender to issue Letters of Credit is subject to the following conditions precedent: 11.1 Initial Credit Extension. The effectiveness of this Agreement and the obligation of the Lenders to make the initial Loans and the obligation of the Issuing Lender to issue its initial Letter of Credit (whichever first occurs) is, in addition to the conditions precedent specified in Sections 11.2 and 11.3, subject to the conditions precedent that (a) the Administrative Agent shall have received evidence satisfactory to it that the Confirmation Order has been entered by the Bankruptcy Court and the Confirmation Order shall be in full force and effect and shall not have been vacated, stayed, reversed, modified or amended, (b) all conditions precedent to the Effective Date (under and as defined in the Plan of Reorganization) set forth in Sections 9.2(e), (f) and (g) of the Plan of Reorganization, other than conditions expressly waived by the Majority Lenders in writing, shall have been satisfied and the Administrative Agent shall have received a certificate from the chief financial officer of the Company certifying as to the satisfaction of such conditions and (c) the Administrative Agent shall have received all of the following, each duly executed and dated the Closing Date (or such earlier date as shall be satisfactory to the Administrative Agent), in form and substance satisfactory to the Administrative Agent (and the date on which all such conditions precedent have been satisfied or waived in writing by the Administrative Agent and the Majority Lenders is called the "Closing Date"): 11.1.1 Notes. The Notes. 11.1.2 Resolutions. Certified copies of resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Agreement, the Notes and the other Loan Documents to which the Company is a party; and certified copies of resolutions of the Board of Directors of each other Loan Party authorizing the execution, delivery and performance by such Loan Party of each Loan Document to which such entity is a party. 11.1.3 Incumbency and Signature Certificates. A certificate of the Secretary or an Assistant Secretary (or other appropriate representative) of each Loan Party certifying the names of the officer or officers or manager or managers of such entity authorized to sign the Loan Documents to which such entity is a party, together with a sample of the true signature of each such officer or manager (it being understood that the Administrative Agent and each Lender may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein). 11.1.4 Guaranty. A counterpart of the Guaranty executed by each Domestic Subsidiary of the Company. 11.1.5 Security Agreement. A counterpart of the Security Agreement executed by the Company and each Domestic Subsidiary. 11.1.6 Pledge Agreement. A counterpart of the Pledge Agreement executed by the Company and each Domestic Subsidiary that owns an equity interest in any other Subsidiary, together with all items required to be delivered in connection therewith. 11.1.7 Real Estate Documents. With respect to each parcel of real property owned by the Company or any Domestic Subsidiary set forth on Schedule 11.1.7, a duly executed Mortgage providing for a fully perfected Lien, in favor of the Administrative Agent, in all right, title and interest of the Company or such Domestic Subsidiary in such real property, together with: (a) other than with respect to the Unimproved Indiana Property, an ALTA Loan Title Insurance Policy (or a marked-up title commitment in respect thereof), issued by an insurer acceptable to the Administrative Agent, insuring the Administrative Agent's Lien on such real property and containing such endorsements as the Administrative Agent may reasonably require (it being understood that the amount of coverage, exceptions to coverage and status of title set forth in such policy shall be reasonably acceptable to the Administrative Agent); (b) other than with respect to the Unimproved Indiana Property, copies of all documents of record concerning such real property as shown on the commitment for the ALTA Loan Title Insurance Policy referred to above; (c) original or certified copies of all insurance policies required to be maintained with respect to such real property by this Agreement, the applicable Mortgage or any other Loan Document; (d) an existing survey dated within the past five years meeting such standards as the Administrative Agent may reasonably establish and otherwise reasonably satisfactory to the Administrative Agent; and (e) a flood insurance policy concerning such real property, reasonably satisfactory to the Administrative Agent, if required by the Flood Disaster Protection Act of 1973. 11.1.8 Opinions of Counsel. The opinions of (i) Skadden Arps Slate Meagher & Flom (Illinois), special counsel to the Loan Parties, substantially in the form of Exhibit F-1, (ii) Ice Miller Donadio & Ryan, special Indiana counsel to the Loan Parties, substantially in the form of Exhibit F-2, and (iii) Norman L. Roelke, general counsel to the Loan Parties, substantially in the form of Exhibit F-3. 11.1.9 Restated Charter; Lender Preferred; Board Designees. (i) Evidence satisfactory to the Administrative Agent that the Restated Charter shall have been filed in the office of the Indiana Secretary of State, shall be in full force and effect under the laws of the State of Indiana as of the Closing Date, and that the Restated Charter shall not have been amended or modified, (ii) stock certificates in the name of each Lender representing the number of shares of Lender Preferred set forth across from such Lender's name on Schedule 2.1 and (iii) evidence satisfactory to the Administrative Agent that all action shall have been taken as is necessary such that, on Plan Effectiveness, two members of the board of directors of the Company shall have been designated by the holders of Existing Secured Lender Claims in accordance with Section 4.3(b) of the Plan of Reorganization, and such members shall have been appointed to such board. 11.1.10 Series A Warrant Agreement. The Series A Warrant Agreement executed by the Company and each Lender. 11.1.11 Warrant Certificates. A Warrant Certificate in the name of each Lender representing the right to purchase the number of shares of the Company's Common Stock set forth across from such Lender's name on Schedule 2.1. 11.1.12 Registration Rights Agreement. The Registration Rights Agreement executed by the Company, each Lender and each other party thereto. 11.1.13 Insurance. Evidence satisfactory to the Administrative Agent of the existence of insurance required to be maintained pursuant to Section 10.3(b), together with evidence that the Administrative Agent has been named as a lender's loss payee and that the Administrative Agent and each Lender have been named as additional insureds on all related insurance policies. 11.1.14 [Intentionally Left Blank.] 11.1.15 Filings, Registrations and Recordings. The Administrative Agent shall have received each document (including Uniform Commercial Code financing statements) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the collateral described therein, prior and superior to any other Person (other than with respect to Liens permitted by Section 10.8), in proper form for filing, registration or recording. 11.1.16 Closing Certificate. A certificate signed by a Vice President of the Company dated as of the Closing Date, affirming the matters set forth in Section 11.2.1 as of the Closing Date. 11.1.17 Borrowing Base Certificate. A Borrowing Base Certificate dated as of the Closing Date. 11.1.18 Charter and Bylaws. With respect to each Loan Party, (i) the articles or certificate of incorporation of each such Loan Party that is a corporation or the certificate of formation of each such Loan Party that is a limited liability company, certified by the Secretary of State of the jurisdiction of organization of such Loan Party as of a recent date (and including copies of any amendments thereto to be filed on the Closing Date certified by the Secretary of such Loan Party) and (ii) the bylaws of each such Loan Party that is a corporation or the operating agreement of each such Loan Party that is a limited liability company, in each case as in effect on the Closing Date, certified by the Secretary of such Loan Party (if such Loan Party is a corporation) or by another Person acceptable to the Administrative Agent. 11.1.19 Plan Documents. True, correct and complete copies of the following documents, each certified by the Secretary of the Company: (i) the Series B Warrant Agreement; (ii) the Series C Warrant Agreement; and (iii) the Management Option Agreement (as defined in the Plan of Reorganization). 11.1.20 Other. Such other documents as the Administrative Agent or any Lender may reasonably request. 11.2 Conditions. The obligation (a) of each Lender to make each Loan and (b) of the Issuing Lender to issue each Letter of Credit is subject to the following further conditions precedent that: 11.2.1 Compliance with Warranties, No Default, etc. Both before and after giving effect to any borrowing and the issuance of any Letter of Credit, the following statements shall be true and correct: (a) the representations and warranties of the Company and each Subsidiary set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); and (b) no Event of Default or Unmatured Event of Default shall have then occurred and be continuing. 11.2.2 Borrowing Certificate. The Administrative Agent shall have received (in sufficient counterparts to provide one to each Lender) a Borrowing Certificate dated the date of such requested Loan or Letter of Credit and signed by a duly authorized representative of the applicable Borrower as to the matters set out in Section 11.2.1 (it being understood that each request by any Borrower for the making of a Loan or the issuance of a Letter of Credit shall be deemed to constitute a warranty by the Company that the conditions precedent set forth in Section 11.2.1 will be satisfied at the time of the making of such Loan or the issuance of such Letter of Credit). 11.3 Condition to Effectiveness. This Agreement shall be effective as of the date hereof provided that, no later than October 25, 2000, the Agent shall have received evidence, in form and substance reasonably satisfactory to it, of payment by the Company of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with all Attorney Costs of the Agents to the extent invoiced prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute the Agents' reasonable estimate of Attorney Costs incurred or to be incurred by the Agents through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Agents). SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT. 12.1 Events of Default. Each of the following shall constitute an Event of Default under this Agreement: 12.1.1 Non-Payment of the Loans, etc. Default in the payment when due of the principal of any Loan; or default, and continuance thereof for five days, in the payment when due of any interest, premium, fee, reimbursement obligation with respect to any Letter of Credit or other amount payable by any Borrower hereunder or under any other Loan Document. 12.1.2 Non-Payment of Other Debt. Any default shall occur under the terms applicable to any Debt of the Company or any Subsidiary in an aggregate amount (for all such Debt so affected) exceeding $1,000,000 (or the Dollar Amount of such Debt if denominated in a currency other than Dollars) and such default shall (a) consist of the failure to pay such Debt when due, whether by acceleration or otherwise, or (b) accelerate the maturity of such Debt or permit the holder or holders thereof, or any trustee or agent for such holder or holders, to cause such Debt to become due and payable prior to its expressed maturity; or any Debt of the Company or any Subsidiary in an aggregate amount (for all Debt so affected) exceeding $1,000,000 (or the Dollar Amount of such Debt if denominated in a currency other than Dollars) shall be required to be prepaid, redeemed, repurchased or defeased or an offer to prepay, redeem, repurchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof. 12.1.3 Other Material Obligations. Default in the payment when due, or in the performance or observance of, any material obligation of, or condition agreed to by, the Company or any Subsidiary with respect to any material purchase or lease of goods or services where such default, singly or in the aggregate with all other such defaults, could reasonably be expected to have a Material Adverse Effect. 12.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary becomes insolvent or generally fails to pay, or admits in writing its inability or refusal to pay, debts as they become due; or the Company or any Subsidiary applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for the Company or such Subsidiary or any property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for the Company or any Subsidiary or for a substantial part of the property of any thereof and is not discharged within 60 days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding (other than voluntary dissolutions of Subsidiaries that are not Material Subsidiaries and with the understanding that transactions permitted by Section 10.10 shall not constitute an Event of Default under this Section 12.1.4), is commenced in respect of the Company or any Subsidiary, and if such case or proceeding is not commenced by the Company or such Subsidiary, it is consented to or acquiesced in by the Company or such Subsidiary, or remains for 30 days undismissed; or the Company or any Subsidiary takes any action to authorize, or in furtherance of, any of the foregoing. 12.1.5 Non-Compliance with Loan Documents. (a) Failure by the Company or any other Loan Party to comply with or to perform any covenant set forth in Sections 10.1.5(a), 10.5 through 10.14, 10.19 through 10.21 and 10.23; or (b) failure by the Company or any other Loan Party to comply with or to perform any other provision of this Agreement or any other Loan Document (and not constituting an Event of Default under any other provision of this Section 12) and continuance of such failure described in this clause (b) for 30 days. 12.1.6 Representations and Warranties. Any representation or warranty made by the Company or any Subsidiary herein or any other Loan Document is breached or is false or misleading in any material respect, or any schedule, certificate, financial statement, report, notice or other writing furnished by the Company or any Subsidiary to the Administrative Agent or any Lender at any time in connection herewith is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified. 12.1.7 Plans. (i) Institution of any steps by the Company or any other Person to terminate a Plan if as a result of such termination the Company could be required to make a contribution to such Plan, or could incur a liability or obligation to such Plan, in excess of $1,000,000 (or the Dollar Amount thereof if denominated in a currency other than Dollars); (ii) a contribution failure occurs with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; or (iii) there shall occur any withdrawal or partial withdrawal from a Multiemployer Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Plans as a result of such withdrawal (including any outstanding withdrawal liability that the Company and the Controlled Group have incurred on the date of such withdrawal) exceeds $1,000,000 (or the Dollar Amount thereof if denominated in a currency other than Dollars). 12.1.8 Judgments. Final judgments which exceed an aggregate liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage in writing) of $1,000,000 (or the Dollar Amount thereof if denominated in a currency other than Dollars) shall be rendered against the Company or any Subsidiary and shall not have been paid, discharged or vacated or had execution thereof stayed pending appeal within 30 days after entry or filing of such judgments; or final judgments shall be entered which could have a Material Adverse Effect. 12.1.9 Invalidity of Loan Documents, etc. Any Loan Document shall cease to be in full force and effect; or the Company or any Subsidiary (or any Person by, through or on behalf of the Company or any Subsidiary) shall contest in any manner the validity, binding nature or enforceability of any Loan Document. 12.1.10 Invalidity of Subordination Provisions, etc. Any subordination provision in any document or instrument governing Subordinated Debt, or any subordination provision in any guaranty by the Company or any Subsidiary of any Subordinated Debt, shall cease to be in full force and effect, or the Company or any other Person (including the holder of any applicable Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision. 12.1.11 Material Adverse Effect. The occurrence of any event having a Material Adverse Effect. 12.1.12 Change in Control. (a) Any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, but excluding any Specified Person (as defined below)) shall acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than 40% of the outstanding securities (on a fully diluted basis and taking into account any securities or contract rights exercisable, exchangeable or convertible into equity securities, but excluding any Lender Preferred) of the Company having voting rights in the election of directors under normal circumstances; or (b) a majority of the members of the Board of Directors of the Company shall cease to be Continuing Members. For purposes of the foregoing, (x) "Continuing Member" means a member of the Board of Directors of the Company who either (i) was a member of the Company's Board of Directors on the date hereof and has been such continuously thereafter, (ii) became a member of such Board of Directors after the date hereof and whose election or nomination for election was approved by a vote of the majority of the Continuing Members then members of the Company's Board of Directors or (iii) was designated by the holders of Lender Preferred and (y) "Specified Person" means any beneficial holder of Senior Subordinate Note Claims (under and as defined in the Plan of Reorganization) immediately prior to Plan Effectiveness. 12.2 Effect of Event of Default. If any Event of Default described in Section 12.1.4 shall occur, the Commitments (if they have not theretofore terminated) shall immediately terminate and the Loans and all other obligations hereunder shall become immediately due and payable and the Borrowers shall become immediately obligated to Cash Collateralize all Letters of Credit, all without presentment, demand, protest or notice of any kind; and, if any other Event of Default shall occur and be continuing, (A) the Administrative Agent (upon written request of the Required Revolving Lenders) shall declare the Commitments (if they have not theretofore terminated) to be terminated and/or demand that the Borrowers immediately Cash Collateralize all Letters of Credit, whereupon the Commitments (if they have not theretofore terminated) shall immediately terminate and/or the Borrowers shall immediately become obligated to Cash Collateralize all Letters of Credit, and (B) the Administrative Agent (upon the request of the Majority Lenders) shall declare all Loans and other obligations hereunder to be due and payable, whereupon all Loans and other obligations hereunder shall become immediately due and payable, all without presentment, demand, protest or notice of any kind. The Administrative Agent shall promptly advise the Company of any such declaration, but failure to do so shall not impair the effect of such declaration. Notwithstanding the foregoing, the effect as an Event of Default of any event described in Section 12.1.1 or Section 12.1.4 may be waived by the written concurrence of all of the Lenders, and the effect as an Event of Default of any other event described in this Section 12 may be waived by the written concurrence of the Majority Lenders. Any cash collateral delivered hereunder shall be held by the Administrative Agent (without liability for interest thereon) and applied to obligations arising in connection with any drawing under a Letter of Credit. After the expiration or termination of all Letters of Credit, such cash collateral shall be applied by the Administrative Agent to any remaining obligations hereunder in accordance with Section 7.2 and any excess shall be delivered to the Borrowers or as a court of competent jurisdiction may direct. SECTION 13 THE AGENTS. 13.1 Appointment and Authorization. (a) Each Lender hereby irrevocably (subject to Section 13.9) appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each Lender hereby appoints AmSouth Bank as Documentation Agent for the Lenders. The Documentation Agent, in its capacity as such, shall have no rights or duties hereunder or under any other Loan Document. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. (b) The Issuing Lender shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith. The Issuing Lender shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Section 13 with respect to any acts taken or omissions suffered by the Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term "Administrative Agent", as used in this Section 13, included the Issuing Lender with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to the Issuing Lender. 13.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care. 13.3 Liability of Administrative Agent. Neither of the Agents nor any of their respective directors, officers, employees or agents shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for such Agent's own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty made by the Company or any Subsidiary or Affiliate of the Company, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of any Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Company or any of the Company's Subsidiaries or Affiliates. 13.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Majority Lenders as it deems appropriate and, if it so requests, confirmation from the Lenders of their obligation to indemnify the Administrative Agent against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Majority Lenders (or all Lenders, if the matter to be acted upon requires the consent of all Lenders hereunder) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders. 13.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default except with respect to defaults in the payment of principal, interest, premium, if any, and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Company referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a "notice of default". The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as may be requested by the Required Revolving Lenders and Majority Lenders, as applicable, in accordance with Section 12; provided that unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of the Lenders. 13.6 Credit Decision. Each Lender acknowledges that neither Agent has made any representation or warranty to it, and that no act by either Agent hereafter taken, including any review of the affairs of the Company and its Subsidiaries, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Company and its Subsidiaries, and made its own decision to enter into this Agreement and to extend credit to the Borrowers hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrowers. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Administrative Agent, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of the Borrowers which may come into the possession of the Administrative Agent. 13.7 Indemnification. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand the Agents and their respective directors, officers, employees and agents (to the extent not reimbursed by or on behalf of the Borrowers and without limiting the obligation of the Borrowers to do so), pro rata, from and against any and all Indemnified Liabilities; provided that no Lender shall be liable for any payment to any such Person of any portion of the Indemnified Liabilities resulting from such Person's gross negligence or willful misconduct. Without limitation of the foregoing, each Lender shall reimburse the Agents upon demand for such Lender's ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agents in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Agents are not reimbursed for such expenses by or on behalf of the Borrowers. The undertaking in this Section shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit, any foreclosure under, or modification, release or discharge of, any or all of the Collateral Documents, termination of this Agreement and the resignation or replacement of either Agent. 13.8 Administrative Agent in Individual Capacity. ABN and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Company and its Subsidiaries and Affiliates as though ABN were not the Administrative Agent or the Issuing Lender hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, ABN or its Affiliates may receive information regarding the Company or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to their Loans (if any), ABN and its Affiliates shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though ABN were not the Administrative Agent and the Issuing Lender, and the terms "Lender" and "Lenders" include ABN and its Affiliates, to the extent applicable, in their individual capacities. 13.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days' notice to the Lenders, and the Administrative Agent may be removed at any time with or without cause by written notice received by the Administrative Agent from the Majority Lenders. If the Administrative Agent resigns under this Agreement or is so removed, the Majority Lenders shall appoint from among the Lenders a successor agent for the Lenders. If no successor agent is appointed prior to the effective date of the resignation or removal of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders, a successor agent from among the Lenders. Any such successor agent shall be a commercial bank having capital and retained earnings of at least $500,000,000. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term "Administrative Agent" shall mean such successor agent, and the retiring Administrative Agent's appointment, powers and duties as Administrative Agent shall be terminated. After any retiring Administrative Agent's resignation or removal hereunder as Administrative Agent, the provisions of this Section 13 and Sections 14.6 and 14.13 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. If no successor agent has accepted appointment as Administrative Agent by the date which is 30 days following a retiring Administrative Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Majority Lenders appoint a successor agent as provided for above. 13.10 Collateral Matters. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, (a) to release any Lien granted to or held by the Administrative Agent hereunder or under any Collateral Document and release any guarantor (i) upon termination of the Commitments and payment in full of all Loans and all other obligations of the Borrowers hereunder and the expiration or termination of all Letters of Credit; (ii) constituting property or a guarantor sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder; or (iii) subject to Section 14.1, if approved, authorized or ratified in writing by the Majority Lenders; or (b) to subordinate its interest in any collateral to any holder of a Lien on such collateral which is permitted by clause (d)(i) or (d)(iii) of Section 10.8 (it being understood that the Administrative Agent may conclusively rely on a certificate from the Company in determining whether the Debt secured by any such Lien is permitted by Section 10.7(b)). Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent's authority to release, or subordinate its interest in, particular types or items of collateral pursuant to this Section 13.10. 13.11 Funding Reliance. (a) Unless the Administrative Agent receives notice from a Lender by noon, Chicago time, on the day of a proposed borrowing that such Lender will not make available to the Administrative Agent an amount equal to its applicable Percentage of such borrowing, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent and, in reliance upon such assumption, make a corresponding amount available to the applicable Borrower. If and to the extent such Lender has not made such amount available to the Administrative Agent, such Lender and the Borrowers jointly and severally agree to repay such amount to the Administrative Agent forthwith on demand, together with interest thereon at the interest rate applicable to Loans comprising such borrowing or, in the case of any Lender which repays such amount within three Business Days, the Federal Funds Rate (together with such other compensatory amounts as may be required to be paid by such Lender to the Administrative Agent pursuant to the Rules for Interbank Compensation of the Council on International Banking or the Clearinghouse Compensation Committee, as applicable, as in effect from time to time). Nothing set forth in this clause (a) shall relieve any Lender of any obligation it may have to make any Loan hereunder. (b) Unless the Administrative Agent receives notice from the Borrower obligated thereon prior to the due date for any payment hereunder that such Borrower does not intend to make such payment, the Administrative Agent may assume that such Borrower has made such payment and, in reliance upon such assumption, make available to each Lender its share of such payment. If and to the extent that such Borrower has not made any such payment to the Administrative Agent, each Lender which received a share of such payment shall repay such share (or the relevant portion thereof) to the Administrative Agent forthwith on demand, together with interest thereon at the Base Rate (or, in the case of any Lender which repays such amount within three Business Days, the Federal Funds Rate). Nothing set forth in this clause (b) shall relieve any Borrower of any obligation it may have to make any payment hereunder. SECTION 14 GENERAL. 14.1 Waiver; Amendments. No delay on the part of the Administrative Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. No right or remedy herein conferred upon the Lenders or the Administrative Agent is intended to be exclusive of any other right or remedy contained herein or in any other Loan Document, and every such right or remedy shall be cumulative and shall be in addition to every other such right or remedy contained herein or therein or now or hereafter existing at law or in equity or by statute or otherwise. No amendment, modification or waiver of any provision of this Agreement, and no consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the requisite Lenders set forth below and (in the case of an amendment) by the Borrowers, and any such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, modification, waiver or consent shall without the written consent of: (i) the Required Revolving Lenders, the Required Tranche A Term Lenders, the Required Tranche B Term Lenders and the Required Special Lenders, amend, modify or waive (x) Section 14.6 or 14.13, (y) any provision of this Agreement that provides for the approval or concurrence of the "Majority Lenders" or (z) any provision of this clause (i); (ii) all of the Revolving Lenders, (x) reduce the principal amount of any Revolving Loan or the rate of interest payable thereon, or reduce any fees payable hereunder in respect of the Revolving Loans, (y) postpone the date for (or reduce the amount of) any scheduled reduction of the Revolving Commitment Amount or for any scheduled payment of principal, interest or fees in respect of any Revolving Loan or (z) amend, modify or waive any provision of this clause (ii), the definition of "Required Revolving Lenders" or the definition of "Revolving Loan Percentage"; (iii) all of the Tranche A Term Lenders, (x) reduce the principal amount of any Tranche A Term Loan or the rate of interest payable thereon, or reduce any fees payable hereunder in respect of the Tranche A Term Loans, (y) postpone the date for (or reduce the amount of) any scheduled payment of principal, interest or fees in respect of any Tranche A Term Loan or (z) amend, modify or waive any provision of this clause (iii), the definition of "Required Tranche A Term Lenders" or the definition of "Tranche A Term Loan Percentage"; (iv) all of the Tranche B Term Lenders, (x) reduce the principal amount of any Tranche B Term Loan or the rate of interest payable thereon, or reduce any fee payable hereunder in respect of the Tranche B Term Loans, (y) postpone the date for (or reduce the amount of) any scheduled payment of principal, interest or fees in respect of any Tranche B Term Loan or (z) amend, modify or waive any provision of this clause (iv), the definition of "Required Tranche B Term Lenders" or the definition of "Tranche B Term Loan Percentage"; (v) all of the Special Lenders, (x) reduce the principal amount of any Special Loan or the rate of interest or premium payable thereon, or reduce any fee payable hereunder in respect of the Special Loans, (y) postpone the date for (or reduce the amount of) any scheduled payment of principal, interest, fees or premium in respect of any Special Loan or (z) amend, modify or waive any provision of this clause (v) or the definition of "Required Special Lenders"; (vi) the Required Revolving Lenders, (x) amend, modify or waive any provision of this Agreement that provides for the approval or concurrence of the Required Revolving Lenders, or (y) amend, modify or waive Section 2.1.5, 2.2.2, 2.2.3 (as it relates to conversions and continuations of Revolving Loans), 2.3, 6.1, 11.2 or 14.19 or this clause (vi); (vii) Revolving Lenders having an aggregate Revolving Loan Percentage of 66-2/3% or more, change the advance rates or any other term of the definition of "Borrowing Base" or any of the defined terms used in such definition or amend or modify this clause (vii); (viii) Revolving Lenders having an aggregate Revolving Loan Percentage of 60% or more, postpone the date for (or reduce the amount of) any mandatory prepayment of principal, interest or fees in respect of any Revolving Loan or amend, modify or waive this clause (viii); (ix) Tranche A Term Lenders having an aggregate Tranche A Term Loan Percentage of 60% or more, postpone the date for (or reduce the amount of) any mandatory prepayment of principal, interest, fees or premium in respect of any Tranche A Term Loan or amend, modify or waive this clause (ix); (x) Tranche B Term Lenders having an aggregate Tranche B Term Loan Percentage of 60% or more, postpone the date for (or reduce the amount of) any mandatory prepayment of principal, interest, fees or premium in respect of any Tranche B Term Loan or amend, modify or waive this clause (x); (xi) Special Lenders having an aggregate Special Loan Percentage of 60% or more, postpone the date for (or reduce the amount of) any mandatory prepayment of principal, interest, fees or premium in respect of any Special Loan or amend, modify or waive this clause (xi); (xii) all of the Revolving Lenders, the Tranche A Term Lenders and the Tranche B Term Lenders, amend or modify the definition of "Required Lenders"; (xiii) all of the Lenders, (t) amend or modify the definition of "Majority Lenders" or the definition of "Total Percentage", (u) amend Section 7.2, (v) increase the Commitment of any Lender or increase the aggregate Commitments, (w) amend, modify or waive any provision of this Agreement that provides for the unanimous approval or concurrence of all of the Lenders, (x) amend, modify or waive any provision of this Section (other than, subject to clause (xii)(y) below, clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) and (xi) above), (y) amend or modify clause (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) or (xi) above in any manner such as to require the consent of any class of Lenders specified in any such clause to any amendment, modification or waiver other than matters requiring the consent of such class on the date hereof or (z) release all or substantially all of the guarantors or all or substantially all of the Collateral; and (xiv) the Required Lenders, amend, modify or waive any provision of this Agreement not specifically enumerated in the foregoing clauses (i) through (xiii); and provided, further, that no amendment or other modification, and no waiver of any Event of Default or Unmatured Event of Default, shall in any case have the effect of obligating any Revolving Lender to make any Loan, or the Issuing Lender to issue any Letter of Credit, if the conditions set forth in Section 11.2 to making any such Loan, or issuing any such Letter of Credit, would not be satisfied absent such amendment, modification or waiver, without the consent of the Required Revolving Lenders. No provision of Section 13 or other provision of this Agreement affecting the Administrative Agent in its capacity as such shall be amended, modified or waived without the consent of the Administrative Agent. No provision of this Agreement relating to the rights or duties of the Issuing Lender in its capacity as such shall be amended, modified or waived without the consent of the Issuing Lender. 14.2 Confirmations. The Borrowers and each holder of a Note agree from time to time, upon written request received by either from the other, to confirm to the other in writing (with a copy of each such confirmation to the Administrative Agent) the aggregate unpaid principal amount of the Loans then outstanding under such Note. 14.3 Notices. All notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown on Schedule 14.3 or at such other address as such party may, by written notice received by the other parties, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent; notices sent by mail shall be deemed to have been given three Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when received. 14.4 Computations. Where the character or amount of any asset or liability or item of income or expense is required to be determined, or any consolidation or other accounting computation is required to be made, for the purpose of this Agreement, such determination or calculation shall, to the extent applicable and except as otherwise specified in this Agreement, be made in accordance with GAAP, consistently applied; provided that if the Company notifies the Administrative Agent that the Company wishes to amend any covenant in Section 10 to eliminate or to take into account the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Company that the Required Lenders wish to amend Section 10 for such purpose), then the Company's compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Company and the Required Lenders. 14.5 Regulation U. Each Lender represents that it in good faith is not relying, either directly or indirectly, upon any Margin Stock as collateral security for the extension or maintenance by it of any credit provided for in this Agreement. 14.6 Costs, Expenses and Taxes. The Borrowers jointly and severally agree to pay on demand all reasonable out-of-pocket costs and expenses of the Agents (including Attorney Costs and the reasonable fees and expenses of financial advisors to the Agents) in connection with the preparation, execution, syndication, delivery and administration of this Agreement, the other Loan Documents and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith (including any amendment, supplement or waiver to any Loan Document), and all reasonable out-of-pocket costs and expenses (including Attorney Costs and the reasonable fees and expenses of financial advisors to the Agents) incurred by each Agent and each Lender if an Event of Default exists in connection with the enforcement of this Agreement, the other Loan Documents or any such other documents, including, without limitation, the reasonable fees and expenses of Mayer, Brown & Platt, Policano & Manzo and Rothschild, Inc. In addition, the Borrowers jointly and severally agree to pay, and to save the Administrative Agent and the Lenders harmless from all liability for, (a) any stamp or other similar taxes (excluding income taxes and franchise taxes based on net income or receipts) which may be payable in connection with the execution and delivery of this Agreement, the borrowings hereunder, the issuance of the Notes or the execution and delivery of any other Loan Document or any other document provided for herein or delivered or to be delivered hereunder or in connection herewith and (b) any fees of the Company's auditors in connection with any exercise by the Administrative Agent and the Lenders of their rights pursuant to Section 10.2. All obligations provided for in this Section 14.6 shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit and termination of this Agreement. 14.7 Subsidiary References. The provisions of this Agreement relating to Subsidiaries shall apply only during such times as the Company has one or more Subsidiaries. 14.8 Captions. Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement. 14.9 Assignments; Participations. 14.9.1 Assignments. Any Lender may, with the prior written consents of the Issuing Lender and the Administrative Agent (which consents shall not be unreasonably delayed or withheld and, in any event, shall not be required for an assignment by a Lender to one of its Affiliates), at any time assign and delegate to one or more Eligible Assignees (any Person to whom such an assignment and delegation is to be made being herein called an "Assignee") all or any fraction of such Lender's Loans and Commitment (which assignment and delegation shall be of a constant, and not a varying, percentage of all the assigning Lender's Loans and Commitment) in a minimum aggregate amount equal to the lesser of (i) the amount of the assigning Lender's Revolving Loan Percentage of the Revolving Commitment Amount plus the unpaid amount of such Lender's Term Loans and Special Loan and (ii) $5,000,000; provided that (a) no assignment and delegation may be made to any Person if, at the time of such assignment and delegation, the Borrowers would be obligated to pay any greater amount under Section 7.6 or Section 8 to the Assignee or the Administrative Agent than the Borrowers are then obligated to pay to the assigning Lender under such Sections (and if any assignment is made in violation of the foregoing, the Borrowers will not be required to pay the incremental amounts), (b) no assignment of all or any part of a Special Loan shall be permitted unless there shall occur simultaneously with such assignment of such Special Loan an assignment of a ratable portion of the assigning Lender's Lender Preferred to the Assignee and (c) the Borrowers and the Administrative Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned and delegated to an Assignee until the date when all of the following conditions shall have been met: (x) five Business Days (or such lesser period of time as the Administrative Agent and the assigning Lender shall agree) shall have passed after written notice of such assignment and delegation, together with payment instructions, addresses and related information with respect to such Assignee, shall have been given to the Company and the Administrative Agent by such assigning Lender and the Assignee, (y) the assigning Lender and the Assignee shall have executed and delivered to the Company and the Administrative Agent an assignment agreement substantially in the form of Exhibit E (an "Assignment Agreement"), together with any documents required to be delivered thereunder, which Assignment Agreement shall have been accepted by the Administrative Agent, and (z) except in the case of an assignment by a Lender to one of its Affiliates, the assigning Lender or the Assignee shall have paid the Administrative Agent a processing fee of $3,500. From and after the date on which the conditions described above have been met, (x) such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder and (y) the assigning Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it pursuant to such Assignment Agreement, shall be released from its obligations hereunder. Within five Business Days after effectiveness of any assignment and delegation, the Borrowers shall, upon request of the Assignee, execute and deliver to the Administrative Agent (for delivery to the Assignee) a new Note, unless the Assignee was already a holder of a Note immediately prior to such effectiveness. Each such Note shall be dated the effective date of such assignment. Accrued interest on that part of the Loans being assigned shall be paid as provided in the Assignment Agreement. Accrued interest and fees on that part of the Loans not being assigned shall be paid to the assigning Lender. Accrued interest and accrued fees shall be paid at the same time or times provided in the predecessor Note and in this Agreement. Any attempted assignment and delegation not made in accordance with this Section 14.9.1 shall be null and void. Notwithstanding the foregoing provisions of this Section 14.9.1 or any other provision of this Agreement, any Lender may at any time assign all or any portion of its Loans and its Note to a Federal Reserve Bank (but no such assignment shall release any Lender from any of its obligations hereunder). 14.9.2 Participations. Any Lender may at any time sell to one or more commercial banks or other Persons participating interests in any Loan owing to such Lender, the Note held by such Lender, the Commitment of such Lender, the direct or participation interest of such Lender in any Letter of Credit or any other interest of such Lender hereunder (any Person purchasing any such participating interest being herein called a "Participant"). In the event of a sale by a Lender of a participating interest to a Participant, (x) such Lender shall remain the holder of its Note and shall remain responsible for all its obligations as a Lender hereunder for all purposes of this Agreement, (y) the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations hereunder and (z) all amounts payable by the Borrowers shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. No Participant shall have any direct or indirect voting rights hereunder except (w) if the participating interest relates to Revolving Loans and Revolving Commitments, with respect to clauses (ii) and (xiii) of the first proviso to the third sentence of Section 14.1, (x) if the participating interest relates to Tranche A Term Loans, with respect to clauses (iii) and (xiii) of the first proviso to the third sentence of Section 14.1, (y) if the participating interest relates to Tranche B Term Loans, with respect to clauses (iv) and (xiii) of the first proviso to the third sentence of Section 14.1 and (z) if the participating interest relates to Special Loans, with respect to clauses (v) and (xiii) of the first proviso to the third sentence of Section 14.1. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement, any Note and with respect to any Letter of Credit to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or such Note; provided that such right of setoff shall be subject to the obligation of each Participant to share with the Lenders, and the Lenders agree to share with each Participant, as provided in Section 7.5. The Borrowers also agree that each Participant shall be entitled to the benefits of Section 7.6 and Section 8 as if it were a Lender (provided that no Participant shall receive any greater amount pursuant to Section 7.6 or Section 8 than would have been paid to the participating Lender if no participation had been sold). 14.10 Governing Law. This Agreement and each Note 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 entirely within such State. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All obligations of the Loan Parties and rights of the Administrative Agent and the Lenders expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law. 14.11 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement. 14.12 Successors and Assigns. This Agreement 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 Lenders and the Administrative Agent. 14.13 Indemnification by the Borrowers. In consideration of the execution and delivery of this Agreement by the Agents and the Lenders and the agreement to extend the Commitments and Loans provided hereunder, the Borrowers hereby jointly and severally agree to indemnify, exonerate and hold each Agent, each Lender and each of the officers, directors, employees, Affiliates and agents of each Agent and each Lender (each a "Lender Party") free and harmless from and against any and all actions, causes of action, suits, losses, liabilities, damages and expenses, including Attorney Costs but excluding costs and expenses specifically referred to in Section 14.6 (collectively, the "Indemnified Liabilities"), incurred by the Lender Parties or any of them as a result of, or arising out of, or relating to (i) any transaction financed or proposed to be financed in whole or in part, directly or indirectly, with the proceeds of any of the Loans, (ii) the use, handling, release, emission, discharge, transportation, storage, treatment or disposal of any hazardous substance at any property owned or leased by the Company or any Subsidiary, (iii) any violation of any Environmental Law with respect to conditions at any property owned or leased by the Company or any Subsidiary or the operations conducted thereon, (iv) the investigation, cleanup or remediation of offsite locations at which the Company or any Subsidiary or their respective predecessors are alleged to have directly or indirectly disposed of hazardous substances or (v) the execution, delivery, performance or enforcement of this Agreement or any other Loan Document by any of the Lender Parties, except that the Borrowers shall not be obligated to indemnify any Lender Party to the extent such Indemnified Liabilities are finally judicially determined to have directly and primarily resulted from such Lender Party's gross negligence or willful misconduct. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrowers hereby agree to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All obligations provided for in this Section 14.13 shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit, any foreclosure under, or any modification, release or discharge of, any or all of the Collateral Documents and termination of this Agreement. 14.14 Nonliability of Lenders. The relationship between the Borrowers on the one hand and the Lenders and the Agents on the other hand shall be solely that of borrower and lender. Neither the Agents nor any Lender shall have any fiduciary responsibility to any Borrower. Neither Agent nor any Lender undertakes any responsibility to any Borrower to review or inform such Borrower of any matter in connection with any phase of such Borrower's business or operations. The Borrowers agree that neither the Agents nor any Lender shall have liability to the Borrowers (whether sounding in tort, contract or otherwise) for losses suffered by any Borrower in connection with, arising out of, or in any way related to the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Agents nor any Lender shall have any liability with respect to, and each Borrower hereby waives, releases and agrees not to sue for, any special, indirect or consequential damages suffered by any Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. 14.15 Confidentiality. Each Lender agrees to hold any confidential information which it may receive from the Company or any Subsidiary pursuant to this Agreement in confidence, except for disclosure (i) to other Lenders and their respective affiliates, (ii) to legal counsel, accountants and other professional advisors to that Lender, (iii) to regulatory officials, (iv) as requested pursuant to or as required by law, regulation or legal process, (v) in connection with any legal proceeding to which that Lender is a party and (vi) permitted by the next sentence. The Borrowers authorize each Lender to disclose to any Participant or Assignee or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Lender's possession concerning the creditworthiness of the Company and its Subsidiaries; provided that each Transferee and prospective Transferee agrees to be bound by this Section 14.15. The restrictions in this Section 14.15 shall not apply to any information which is or becomes generally available to the public other than as a result of disclosure by a Lender or a Lender's representatives. 14.16 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF THE AGENTS, THE LENDERS OR THE BORROWERS (OR ANY OF THEM) SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR OUTSIDE OF THE STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 14.17 Waiver of Jury Trial. THE AGENTS, THE LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF THE AGENTS, THE LENDERS OR THE BORROWERS. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT. 14.18 Power of Attorney. Each Borrower appoints the Administrative Agent, or any Person whom the Administrative Agent may from time to time designate, as such Borrower's attorney and agent-in-fact with power (which appointment and power, being coupled with an interest, is irrevocable until all Loans and other obligations hereunder are paid and performed in full and this Agreement is terminated), without notice to any Borrower, to: (a) At such time or times while an Event of Default exists, as the Administrative Agent or said agent, in its discretion, may determine in the name of such Borrower or the Administrative Agent (i) endorse such Borrower's name on any checks, notes, drafts or any other items of payment relating to and/or proceeds of the Collateral which come into the possession of the Administrative Agent or any Lender or under the Administrative Agent's or any Lender's control and apply such payment or proceeds to the Loans and other obligations hereunder, (ii) endorse such Borrower's name on any chattel paper, document, instrument, invoice, freight bill, bill of lading or similar document or agreement in the Administrative Agent's or any Lender's possession relating to Accounts Receivable, Inventory or any other Collateral, (iii) use the information recorded on or contained in any data processing equipment and computer hardware and software to which such Borrower has access relating to Accounts Receivable, Inventory or other Collateral, (iv) use such Borrower's stationery and sign the name of such Borrower to verifications of Accounts Receivable and notices thereof to Account Debtors and (v) if not done by such Borrower, do all acts and things determined by the Administrative Agent or the Required Lenders to be necessary to fulfill such Borrower's obligations under this Agreement; and (b) At such time or times while an Event of Default exists, as the Administrative Agent or said agent, in its discretion, may determine, in the name of such Borrower or the Administrative Agent (i) demand payment of the Accounts Receivable, (ii) enforce payment of the Accounts Receivable, by legal proceedings or otherwise, (iii) exercise all of such Borrower's rights and remedies with respect to the collection of the Accounts Receivable and other Collateral, (iv) settle, adjust, compromise, extend or renew the Accounts Receivable, (v) settle, adjust or compromise any legal proceeding brought to collect the Accounts Receivable, (vi) if permitted by applicable law, sell or assign the Accounts Receivable or other Collateral upon such terms for such amounts and at such time or times as the Administrative Agent may deem advisable, (vii) discharge and release the Accounts Receivable or other Collateral, (viii) prepare, file and sign such Borrower's name on any proof of claim in bankruptcy or similar document against any Account Debtor, (ix) prepare, file and sign such Borrower's name on any notice of lien, assignment or satisfaction of lien or similar document in connection with the Accounts Receivable or other Collateral and (x) do all acts and things necessary, in the Administrative Agent's discretion, to obtain repayment of the Loans and other obligations hereunder. 14.19 Addition and Termination of Subsidiaries as Borrowers. The Company may at any time or from time to time, with the consent of the Administrative Agent and the Required Revolving Lenders, add as a party to this Agreement any Domestic Subsidiary to be a "Borrower" hereunder by (a) the execution and delivery to the Administrative Agent of a duly completed Assumption Letter by such Subsidiary, with the written consent of the Company at the foot thereof and (b) the execution and delivery to the Administrative Agent of such other guaranty and security documents as may be reasonably required by the Administrative Agent. Upon such execution, delivery and consent such Subsidiary shall for all purposes be a party hereto as a Borrower as fully as if it had executed and delivered this Agreement. So long as the principal of and interest on any Loans made to any Borrower that is a Subsidiary under this Agreement shall have been repaid or paid in full and all other obligations of such Borrower under this Agreement shall have been fully performed, the Company may, by not less than five Business Days' prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), terminate such Subsidiary's status as a "Borrower". 14.20 Treatment of Pre-Petition ESOP Loans. The Company hereby assumes liability for all obligations requiring the payment of money by the Trust with the Bank of New York for Retirement Savings Plan for Employees of Tokheim Corporation and Subsidiaries (the "Trust") under (i) the Loan and Guarantee Agreement dated as of July 10, 1989, as amended, among the Company, The Trust with Fort Wayne National Bank (successor to Norwest Bank Fort Wayne, N.A. f/k/a Lincoln National Bank and Trust Company) for Retirement Savings Plan for Employees of Tokheim Corporation and Subsidiaries and NBD Bank, N.A., as agent for the lenders party thereto (as amended, the "Lincoln ESOP Loan Agreement") and (ii) the Loan and Guarantee Agreement dated as of July 10, 1989, as amended, among the Company, The Trust with Fort Wayne National Bank (successor to Summit Bank) for Retirement Savings Plan for Employees of Tokheim Corporation and Subsidiaries and NBD Bank, N.A., as agent for the lenders party thereto (as amended, the "Summit ESOP Loan Agreement" and, collectively with the Lincoln ESOP Loan Agreement, the "ESOP Loan Agreements") and hereby agrees to pay and perform all obligations of the Trust under the ESOP Loan Agreements, provided that the Trust shall not be relieved of its obligations under the ESOP Loan Agreements but shall owe its obligations thereunder to the Company, as the successor lender, rather than NBD Bank, N.A. The Company's obligations under this Section are included in the Existing Secured Lender Claims, but as primary obligations of the Company and not as matured claims with respect to the Company's guaranty obligations of the Trust under the ESOP Loan Agreements. Because these obligations are included in the Existing Secured Lender Claims, they are subject to the treatment set forth in Sections 2.1.2, 2.1.3 and 2.1.4 and shall be converted into Loans on Plan Effectiveness. The Company agrees that the ESOP Loan Agreements shall be revised with the Trust as aforesaid on Plan Effectiveness and the Lenders party to the ESOP Loan Agreements agree that the Trust shall upon Plan Effectiveness be released from any further obligation to the Lenders thereunder and that its sole obligations thereunder shall be to the Company. The Company represents and warrants that such revision (i) shall not cause any "Leveraged Shares" (as defined in the ESOP) to be released from any "Company Suspense Account" (as defined in the ESOP) and (ii) does not violate any applicable law (including ERISA). 14.21 Treatment of Certain Borrowing Subsidiaries under the Pre-Petition Credit Agreement. For purposes of greater certainty, it is hereby acknowledged and agreed that the status of Tokheim UK Limited, Tokheim Services France, S.A., Tokheim Sofitam S.A. and Tokheim Sofitam Applications S.A. (collectively, the "Former Foreign Borrowing Subsidiaries") as "Borrowing Subsidiaries" under the Pre-Petition Credit Agreement has been terminated and that none of the Former Foreign Borrowing Subsidiaries has any remaining obligations of any kind under the Pre- Petition Credit Agreement or any other Pre-Petition Loan Document, other than indemnification obligation that by their terms survive the termination of such documents. The Administrative Agent agrees to execute and deliver such other documents as may be reasonably necessary to effect this Section. SECTION 15 GUARANTY. 15.1 The Guaranty. The Company hereby unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) to the Lenders and the Administrative Agent, and to each of them, the due and punctual payment, observance and performance of all of the Guaranteed Obligations when and as due, whether at maturity, by acceleration, mandatory prepayment or otherwise, according to the terms hereof and thereof, and the Company hereby unconditionally and irrevocably agrees to cause payment or performance of the Guaranteed Obligations to be made punctually as and when the same shall become due upon demand. This Guaranty shall be of payment and performance and not of collection merely. 15.2 Guaranty Unconditional. The obligations of the Company under this Section 15 shall be continuing, unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by: (a) any extension, renewal, settlement, compromise, waiver or release in respect of any Guaranteed Obligation, by operation of law or otherwise; (b) any modification or amendment of or supplement to any Loan Document; (c) any modification, amendment, waiver, release, non-perfection or invalidity of any direct or indirect security, or of any Suretyship Liability or other liability of any third party, for any Guaranteed Obligation; (d) any change in the corporate existence, structure or ownership of any Subsidiary that is a Borrower or any other Loan Party, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Subsidiary that is a Borrower or any other Loan Party or its assets or any resulting release or discharge of any Guaranteed Obligation; (e) the existence of any claim, setoff or other right which the Company may have at any time against any Subsidiary that is a Borrower, the Administrative Agent, any Lender or any other Person, whether or not arising in connection with the Loan Documents; (f) any invalidity or unenforceability relating to or against any Subsidiary that is a Borrower or any other Loan Party for any reason of the whole or any provision of any Loan Document, or any provision of applicable law purporting to prohibit the payment or performance by any Subsidiary that is a Borrower of the Guaranteed Obligations; or (g) any other act or omission of any kind to act or delay by any Subsidiary that is a Borrower, any other Loan Party, the Administrative Agent, any Lender or any other Person or any other circumstance whatsoever that might, but for the provisions of this Section 15.2, constitute a legal or equitable discharge of the obligations of the Company under this Section 15. 15.3 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances. The Company's obligations under this Section 15 shall remain in full force and effect until all of the Commitments shall have expired or been terminated and all of the Guaranteed Obligations shall have been paid in full in cash (other than in respect of contingent indemnification obligations with respect to which the Administrative Agent and the Lenders have not asserted a claim against the Loan Parties). If at any time all or any part of any payment previously applied to any Guaranteed Obligation is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of any Subsidiary that is a Borrower or otherwise, the obligations of the Company under this Section 15 with respect to such payment shall be reinstated at such time as though such payment had become due but not been made at such time. 15.4 Waiver. The Company irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Subsidiary that is a Borrower or any other Person or any Collateral. The Company hereby expressly waives: (a) notice of the acceptance by the Administrative Agent or any Lender of this Section 15 and (b) notice of the existence or creation or nonpayment of all or any of the Guaranteed Obligations. 15.5 Stay of Acceleration. If acceleration of the time for payment of any amount payable by any Borrower that is a Subsidiary under any Loan Document is stayed upon the insolvency, bankruptcy or reorganization of such Borrower, all such amounts otherwise subject to acceleration under the terms of the Loan Documents shall nonetheless be payable by the Company hereunder forthwith on demand by the Administrative Agent. 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____________________________ LENDERS: 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, STEARNS & CO., INC., as a Lender By______________________________ Title___________________________ BANKERS TRUST COMPANY, as a Lender By______________________________ Title___________________________ SENIOR DEBT PORTFOLIO, as a Lender By: Boston Management and Research, as Investment Advisor By ______________________________ Title____________________________ EATON VANCE SENIOR INCOME TRUST, as a Lender By: Eaton Vance Management, as Investment Advisor By______________________________ Title____________________________ OXFORD STRATEGIC INCOME FUND, as a Lender By: Eaton Vance Management, as Investment Advisor By______________________________ Title___________________________ EATON VANCE INSTITUTIONAL SENIOR LOAN FUND, as a Lender By: Eaton Vance Management, as Investment Advisor By______________________________ Title___________________________ [RESERVED - NO SIGNATURE ON THIS PAGE] CREDIT INDUSTRIEL ET COMMERCIAL, as a Lender By______________________________ Title___________________________ By______________________________ Title____________________________ FINOVA CAPITAL CORPORATION, as a Lender By______________________________ Title____________________________ 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 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___________________________ EX-4 5 0005.txt EXHIBIT 4.27 - SERIES A WARRANT AGREEMENT Exhibit 4.27 SERIES A WARRANT AGREEMENT SERIES A WARRANT AGREEMENT, dated as of October 20, 2000 (this "Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation (the "Company"), and the holders (the "Holders") of Series A Warrant Certificates (together with any certificates issued in replacement or substitution therefor, the "Warrant Certificates") referred to below. WHEREAS, in connection with the New Credit Agreement, dated as of October 20, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "New Credit Agreement"), by and among the Company, various subsidiaries of the Company as borrowers, various financial institutions (the "Lenders"), AmSouth Bank as documentation agent and ABN AMRO Bank N.V. as administrative agent, the Company has agreed to issue certain warrants (the "Warrants") evidenced by the Warrant Certificates in the form of Exhibit A hereto to purchase shares of the Company's Common Stock, no par value (the "Common Stock"), at the exercise price of $0.01 per share (the "Exercise Price") from the Original Issuance Date until October 20, 2005 (the "Exercise Period"), pursuant to the terms of such Warrants; WHEREAS, the Company and the Holders desire to set forth certain agreements relating to the Warrants and the Common Stock issuable upon exercise thereof. NOW, THEREFORE, in consideration of the foregoing and the covenants of the parties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the terms and conditions set forth herein, the parties hereby agree as follows: Section 1. Registration. The Company shall register each Warrant upon records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company may deem and treat the registered Holder of each Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes. Section 2. Transfers and Exchanges of Warrants and Warrant Shares. (a) Registration of Transfers and Exchanges. The Company shall register the transfer of any Warrants upon records to be maintained by the Company for that purpose upon surrender of a Warrant Certificate, with the Form of Assignment attached thereto appropriately completed and duly signed, to the Company at the office specified in or pursuant to Section 3(c). Upon any such registration of transfer, a new Warrant Certificate, in substantially the form of Exhibit A hereto, evidencing the Warrants so transferred shall be issued to the transferee and a new Warrant Certificate, in similar form, evidencing the remaining Warrants not so transferred, if any, shall be issued to the then registered Holder thereof. (b) Warrants Exchangeable for Different Denominations. Each Warrant Certificate is exchangeable, upon the surrender thereof by the Holder thereof at the office of the Company specified in or pursuant to Section 3(c), for new Warrant Certificates, in substantially the form of Exhibit A hereto, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased thereunder, each of such new Warrant Certificates to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by said Holder thereof at the time of such surrender. Section 3. Duration and Exercise of Warrants. (a) Exercise. Each Warrant shall be exercisable by the registered Holder thereof on any business day during the Exercise Period. (b) Ratio. Subject to the provisions of the Warrant Certificates and this Agreement, including adjustments to the number of Warrant Shares issuable on the exercise of each Warrant and to the Exercise Price pursuant to Section 7, the Holder of each Warrant during the Exercise Period shall have the right to purchase from the Company (and the Company shall be obligated to issue and sell to such holder of a Warrant) at the Exercise Price one fully paid Warrant Share which is non-assessable. (c) Payment of Exercise Price. Subject to Sections 4, 8 and 10, upon surrender of each Warrant Certificate, with the Form of Election to Purchase attached thereto duly filled in and signed, to the Company at its office at 10501 Corporate Drive, Fort Wayne, Indiana 46845, Attention: Chief Financial Officer, or at such other address as the Company may specify in advance in writing to the then registered holder of the Warrants, and upon either (i) payment of the Exercise Price multiplied by the number of Warrant Shares then issuable upon exercise of the Warrants being exercised in lawful money of the United States of America or (ii) notice by the registered Holder of the Warrant Certificate of its election to exercise the Warrants evidenced by such Warrant Certificate on a cashless basis in the manner described in subsection (d) of this Section 3, all as specified by the Holder of the Warrant Certificate in the Form of Election to Purchase, the Company shall promptly issue and cause to be delivered to or upon the written order of the registered Holder of such Warrants, and in such name or names as such registered Holder may designate, one or more certificates for the Warrant Shares issued upon such exercise of such Warrants. Any Person so designated to be named therein shall be deemed to have become Holder of record of such Warrant Shares as of the Date of Exercise of such Warrants. The "Date of Exercise" of any Warrant means the date on which the Company shall have received (i) the Warrant Certificate representing such Warrants, with the Form of Election to Purchase attached thereto appropriately completed and duly signed, and (ii) unless the Holder of such Warrant Certificate makes the election described in subsection (d) of this Section 3, payment of the Exercise Price for such Warrant in cash (by check or by wire transfer). (d) Cashless Exercise. In lieu of paying the Exercise Price upon exercise of the Warrants, the Holder of any Warrant Certificate may elect to receive a number of Warrant Shares whose aggregate Market Price as of the Date of Exercise is equal to the fair value of such Warrant Certificate (or the portion hereof evidencing the number of Warrants then being exercised) on such date, in which event the Company shall issue to the Holder of such Warrant Certificate, upon receipt of notice of such election, a number of Warrant Shares equal to (i) the number of Warrant Shares that would otherwise be issuable upon payment of the Exercise Price of the Warrants then being exercised minus (ii) the number of shares of Common Stock having an aggregate Market Price equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares otherwise issuable upon payment of the Exercise Price of the Warrants then being exercised. (e) Partial Exercise. The Warrants evidenced by each Warrant Certificate shall be exercisable, either as an entirety or, from time to time, for only part of the number of Warrants evidenced by such Warrant Certificate. If less than all of the Warrants evidenced by any Warrant Certificate are exercised at any time, the Company shall promptly issue, at its expense, to the relevant Holder, a new Warrant Certificate, in substantially the form of the surrendered Warrant Certificate, for the remaining number of Warrants evidenced by such Warrant Certificate. Section 4. Payment of Taxes. The Company will pay all transfer and stock issuance taxes attributable to the issuance of the Warrants and the Warrant Shares; provided, however, that the Company shall not be required to pay any tax in respect of the transfer of Warrants, or the issuance or delivery of certificates for Warrant Shares or other securities in respect of the Warrant Shares upon the exercise of Warrants, to a Person other than a then existing registered Holder of Warrants or an Affiliate of such registered Holder. Section 5. Mutilated or Missing Warrant Certificate. If a Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company will, upon request by the registered Holder of such Warrant Certificate, promptly issue to such Holder, in exchange for and upon cancellation of the mutilated Warrant Certificate, or in substitution for the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in substantially the form of the replaced Warrant Certificate, of like tenor and representing the equivalent number of Warrants, but, in the case of loss, theft or destruction, only upon receipt of an affidavit of loss or other evidence reasonably satisfactory to the Company of such loss, theft or destruction of the Warrant Certificate and, if requested by the Company, a written agreement of indemnity from the Holder reasonably satisfactory to the Company. Section 6. Reservation, Listing and Issuance of Warrant Shares. (a) Available Warrant Shares. The Company will at all times have authorized, and reserve and keep available, free from preemptive rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants, the number of Warrant Shares issuable upon exercise of the Warrants. (b) Adjustments Below Par. Before taking any action which could cause an adjustment pursuant to Section 7 reducing the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action which may be necessary in order that the Company may validly and legally issue at the Exercise Price as so adjusted Warrant Shares that are fully paid and non-assessable. (c) Warrant Shares Duly Authorized. The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Agreement, be (i) duly authorized, validly issued, fully paid and non-assessable, and (ii) free from all taxes with respect to the issuance thereof and from all adverse claims, liens, pledges, encumbrances, charges and security interests created by the Company. Section 7. Adjustments of Price and Number of Warrant Shares. (a) Adjustment of Number of Warrant Shares Issuable. Upon each adjustment of the Exercise Price pursuant to this Section 7, the Holder of a Warrant shall be entitled to purchase, at the Exercise Price in effect after such adjustment, a number of Warrant Shares equal to the amount obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. (b) Adjustment of Price upon Issuance of Common Stock. If and whenever after the date hereof, the Company shall issue or sell any shares of Common Stock for a consideration per share less than 100% of the Market Price (as hereinafter defined) at the time of such issue or sale, then forthwith upon such issue or sale, the Exercise Price shall be reduced to the price determined as follows: by multiplying the then existing Exercise Price by a fraction (A) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered would purchase at the current Market Price and (B) the denominator of which shall be the number of shares of Common Stock Deemed Outstanding plus the number of shares of Common Stock to be offered for issue or sale. (c) Additional Adjustments. For the purposes of subsection (b) of this Section, the following clauses shall also be applicable: (i) Issuance of Rights or Options. If at any time the Company shall grant (whether directly or by assumption in a merger in which the Company is the surviving Company or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities") whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such rights or options or upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of the granting of such rights or options, then the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such rights or options shall (as of the date of granting of such rights or options) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 7(b). Except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock or of such Convertible Securities upon exercise of such rights or options or upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities. For the purposes of this clause (i), the price per share for which Common Stock is issuable upon the exercise of any such rights or options or upon conversion or exchange of any such Convertible Securities shall be determined by dividing (A) the total amount, if any, received or receivable by the Company as consideration for the granting of such rights or options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such rights or options, plus, in the case of such rights or options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options. (ii) Issuance of Convertible Securities. If the Company shall issue (whether directly or by assumption in a merger in which the Company is the surviving corporation or otherwise) or sell any Convertible Security, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall (as of the date of the issue or sale of such Convertible Securities) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 7(b), provided that (A) except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities, and (B) if any such issue or sale of such Convertible Securities is made upon exercise of any rights to subscribe for or to purchase or any option to purchase any such Convertible Securities for which adjustments of any Exercise Price have been or are to be made pursuant to other provisions of this subsection (c), no further adjustment of any Exercise Price shall be made by reason of such issue or sale. For the purposes of this clause (ii), the price per share for which Common Stock is issuable upon conversion or exchange of Convertible Securities shall be determined by dividing (C) the total amount, if any, received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (D) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. (iii) Readjustments. If the purchase price provided for in any rights or options referred to in clause (i) above, or the additional consideration, if any, payable upon the conversion or exchange of Convertible Securities referred to in clause (i) or (ii) above, or the rate at which any Convertible Securities referred to in clause (i) or (ii) above are convertible into or exchangeable for Common Stock, shall be reduced, then the Exercise Price in effect at the time of such event shall forthwith be readjusted to the Exercise Price which would have been in effect at such time had such rights, options or Convertible Securities then outstanding provided for such reduced purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold. On the expiration of any such option or right or the termination of any such right to convert or exchange such Convertible Securities, the Exercise Price and number of Warrant Shares issuable pursuant hereto then in effect shall be readjusted to the Exercise Price and number of Warrant Shares which would have been in effect at the time of such expiration or termination had such warrant, right, option or Convertible Security never been issued, and the shares of Common Stock issuable thereunder shall no longer be Common Stock Deemed Outstanding. (iv) Consideration for Stock. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor, without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined reasonably and in good faith by the board of directors of the Company, without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If the Company shall declare or pay a dividend or make any other distribution upon any stock of the Company payable in Common Stock, Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration. If any shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the board of directors of the Company or such portion of the assets and business of the non-surviving corporation as such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the case may be. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Exercise Price in accordance with Section 7(b), the determination of the number of shares of Common Stock issuable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of Section 7(e), shall be made after giving effect to such adjustment of the Exercise Price. (v) Record Date. If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock or in Convertible Securities or (B) to rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right, as the case may be. (vi) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock for the purposes of this Section 7. (d) Subdivision or Combination of Stock; Other Distributions. If the Company shall at any time subdivide (whether by stock split, stock dividend, recapitalization or otherwise) the outstanding shares of any equity securities into a greater number of shares or pay a dividend or make a distribution to holders of any equity securities in the form of Common Stock, the Exercise Price in effect immediately prior to such subdivision, payment or distribution shall be proportionately reduced; conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares (whether by reverse stock split or otherwise), the Exercise Price in effect immediately prior to such combination shall be proportionately increased. (e) Adjustments for Consolidation, Merger, Sale of Assets, Reorganization, etc. If the Company (i) consolidates with or merges into any other entity and is not the continuing or surviving corporation of such consolidation or merger, or (ii) permits any other entity to consolidate with or merge into the Company and the Company is the continuing or surviving corporation but, in connection with such consolidation or merger, the Common Stock is changed into or exchanged for stock or other securities of any other corporation or cash or any other assets, or (iii) transfers all or substantially all of its properties and assets to any other entity, or (iv) effects a recapitalization, capital reorganization or reclassification of the capital stock of the Company in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Stock (each of the transactions referred to in the foregoing clauses (i) through (iv) being an "Organic Change"), then, and in each such case, proper provision shall be made in form and substance reasonably satisfactory to the Holders so that, upon the basis and upon the terms and in the manner provided in this subsection (f), the holder of this Warrant Certificate, upon the exercise of each Warrant at any time after the consummation of such Organic Change, shall be entitled to receive (at the aggregate Exercise Price in effect for all Warrant Shares issuable upon such exercise immediately prior to such consummation as adjusted to the time of such transaction), in lieu of shares of Common Stock issuable upon such exercise prior to such consummation, the stock and other securities, cash and assets to which such holder would have been entitled upon such consummation if such holder had so exercised such Warrant immediately prior thereto (subject to adjustments subsequent to such corporate action as nearly equivalent as possible to the adjustments provided for in this Section 7). (f) Notice of Adjustment. Upon any adjustment of any Exercise Price, then and in each such case the Company shall promptly deliver a notice to the registered holder of the Warrants, which notice shall state the Market Price, if any adjustment depends upon a determination of Market Price, and the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of each Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. (g) Other Notices. In case at any time: (i) the Company shall declare any cash dividend on its Common Stock; (ii) the Company shall pay any dividend payable in stock upon its Common Stock or make any distribution (other than regular cash dividends) to the holders of its Common Stock; (iii) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or other rights; (iv) the Company shall authorize to all holders of its Common Stock the distribution of evidence of its indebtedness or assets (other than cash dividends or cash distributions payable out of earnings or earned surplus or dividends payable in Common Stock); (v) there shall be any Organic Change; (vi) there shall be a voluntary or involuntary dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, or winding up of the Company; or (vii) the Company proposes to take any other action or an event occurs which would require an adjustment of the Exercise Price pursuant to subsection (j) of this Section 7; then, in any one or more of said cases, the Company shall give written notice, addressed to the holder of each Warrant Certificate at the address of such holder as shown on the books of the Company, of (1) the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights, or (2) the date (or, if not then known, a reasonable approximation thereof by the Company) on which such Organic Change or other action or event, as the case may be, shall take place (or, in the case of clause (vi) above, the date on which the relevant action or event took place). Such notice shall also specify (or, if not then known, reasonably approximate) the date as of which the holders of Common Stock of record shall participate in such dividends, distribution or subscription rights, or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Organic Change, dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or other action or event, as the case may be. Such written notice shall be given at least twenty days prior to the action in question and not less than twenty days prior to the record date or the date on which the Company's transfer books are closed in respect thereto; provided, that no advance notice need be given of any event or action specified in clause (vi) above, but the Company shall give notice of such event as promptly thereafter as practicable. (h) Certain Events. If any event occurs of the type contemplated by the provisions of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company shall appoint, at its sole cost and expense, a firm of independent certified public accountants (which may be the regular auditors of the Company) of recognized national standing, which shall give their opinion upon the adjustment, if any, on a basis consistent with the basic intent and principles established in the other provisions of this Section 7, necessary to preserve, without dilution, the exercise rights of the registered holders of the Warrant Certificates. Upon receipt of such opinion, the Company shall forthwith make the adjustments described therein. (i) Certain Exceptions to Antidilution Protection. Notwithstanding anything to the contrary in this Section 7, there shall be no adjustment to the Exercise Price or to the number of Warrant Shares issuable upon exercise of the Warrants: (i) in connection with the sale or issuance of the warrant certificates for an initial aggregate of 678,334 shares of Common Stock issued to the Lenders (or their Affiliates) under the New Credit Agreement on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable pursuant thereto in accordance with the terms of any thereof; (ii) upon any exercise of the Other Warrants in accordance with the terms thereof in effect on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable under the Other Warrants pursuant to the terms thereof as in effect on the Original Issuance Date; (iii) upon exercise of any Convertible Security outstanding on the Original Issuance Date; (iv) upon exercise of any options under the Management Option Plan; or (iv) upon the issuance of any other securities as contemplated by the Plan, including the new Series A Senior Preferred Stock or the new Common Stock (each as described therein). (j) Other Securities. If at any time, as a result of an adjustment made pursuant to this Section 7, any holder of Warrants shall become entitled to purchase any securities of the Company other than shares of Common Stock, the number or amount of such other securities so purchasable and the consideration for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 7 hereof. Section 8. No Stock Rights. No holder of any Warrant Certificate, as such, shall be entitled to vote or be deemed the holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise thereof, nor shall anything contained herein be construed to confer upon the Holder of any Warrant Certificate, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders (except as provided herein), or to receive dividends (except as provided herein) or subscription rights or otherwise, until the Date of Exercise of the Warrants shall have occurred. Section 9. Fractional Shares. The Company shall not be required to issue fractions of Warrant Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Warrant Shares. As to any fractional share of Common Stock which the Holder would otherwise be entitled to subscribe for from the Company upon such exercise, the Company shall purchase from the Holder such unissued fractional share at a price equal to an amount calculated by multiplying such fractional share (calculated to the nearest 1/100th of a share) by the then-Market Price determined in accordance with the terms of this Agreement. Payment of such amount shall be made in cash or by check payable to the order of the Holder at the time of delivery of any certificate or certificates arising upon such exercise. Section 10.No Registration under Securities Act. Neither the Warrants nor the Warrant Shares have been registered under the Securities Act, but they have been issued pursuant to a valid exemption from the Securities Act pursuant to Section 1145 of the Bankruptcy Code. The Holder of each Warrant Certificate, by acceptance thereof, represents that it is acquiring the Warrants to be issued to it for its own account and not with a view to the distribution thereof, and agrees not to sell, transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a registration statement is effective for such Warrants or Warrant Shares under the Securities Act or in the opinion of such holder's counsel (a copy of which opinion shall be delivered to the Company) such transaction is exempt from the registration requirements of the Securities Act; provided that Warrants and Warrant Shares issued to such Holder may be transferred to any Affiliate of such Holder, without any such registration (to the extent permitted by law) or opinion, subject to the foregoing restriction on any further sale, transfer, pledge or hypothecation by such Affiliate. Section 11. Certain Definitions. The following terms have the meanings set forth below: "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. "Common Stock" is defined in the second paragraph hereof. "Common Stock Deemed Outstanding" means, at any given time, (x) the number of shares of Common Stock actually outstanding at such time, plus (y) the number of shares of Common Stock issuable pursuant to any outstanding Convertible Securities, or rights or options to purchase Common Stock or Convertible Securities but only to the extent such Convertible Securities, rights or options are In the Money at such time. "Company" is defined in the first paragraph hereof. "Convertible Securities" is defined in Section 7(c)(i). "Date of Exercise" is defined in Section 3(c). "Exercise Period" is defined in the second paragraph hereof. "Exercise Price" is defined in the second paragraph hereof. "Holder" is defined in the first paragraph hereof. "In the Money" means, as to any Convertible Securities or rights or options to purchase Common Stock or Convertible Securities at any time, that such Convertible Securities, rights or options have a conversion price, exercise price or similar price per share of Common Stock that is less than the Market Price as of the date of determination. "Lenders" are defined in the second paragraph hereof. "Management Option Plan" shall mean that certain management option plan to be entered into on the Original Issuance Date. "Market Price" shall mean the average of the daily closing prices per share of the Common Stock for the ten consecutive trading days immediately preceding the day as of which "Market Price" is being determined (exclusive of "ex-dividend" and similar dates) provided, however, that (i) Market Price shall be the closing price per share of the Common Stock of the Company on the date of issuance with respect to the issuance of options to purchase Common Stock of the Company issued to directors, officers or employees of the Company and (ii) Market Price shall be the closing price per share of the Common Stock of the Company on the date the underwriting agreement is executed with respect to any bona fide underwritten public offering of the Common Stock of the Company involving net cash proceeds to the Company of at least $1,000,000. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the principal national securities exchange on which the shares are listed or admitted to trading, or if the shares are not so listed or admitted to trading, on the National Market System of NASDAQ or, if prices for the shares are not quoted on such National Market System, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through NASDAQ or through a similar organization if NASDAQ is no longer reporting such information. If shares of the Common Stock are not listed or admitted to trading on any exchange or quoted through NASDAQ or any similar organization, the "Market Price" shall be deemed to be the higher of (x) the book value of a share of the Common Stock as determined by any firm of independent certified public accountants of recognized national standing, selected by the board of directors of the Company, as at the last day of any month ending within sixty days preceding the date as of which the determination is to be made and (y) the fair value thereof determined in good faith by a nationally recognized independent investment banking firm selected by the Company and reasonably acceptable to the holders of a majority of the Warrants as of a date which is within 30 days of the date as of which the determination is to be made (the fees and expenses of such independent certified public accountants and independent investment banking firm to be paid by the Company); provided, however, that in the case of any determination of Market Price pursuant to this sentence, the Market Price shall not be less than the amount of the consideration per share received by the Company in respect of the most recent sale, transfer or other issuance of Common Stock by the Company (other than as a result of the exercise of any option or warrant or the conversion of any Convertible Security) in an arms' length transaction to an unaffiliated third party within the 90-day period immediately preceding the date as to which the determination is to be made. Anything herein to the contrary notwithstanding, if the Company shall issue any shares of Common Stock or Convertible Securities or rights or options to purchase Common Stock or Convertible Securities in connection with the acquisition by the Company of the stock or assets of any other corporation or the merger of any other corporation into the Company, the Market Price shall be determined in the manner described in this definition as of the date the number of shares of Common Stock, Convertible Securities (or in the case of Convertible Securities other than stock, the aggregate principal amount of Convertible Securities), rights or options was determined (as set forth in a written agreement between the Company and the other party to the transaction) rather than on the date of issuance of such shares of Common Stock, Convertible Securities, rights or options. "New Credit Agreement" is defined in the second paragraph hereof. "Organic Change" is defined in Section 7(e). "Original Issuance Date" means October 20, 2000. "Other Warrants" shall mean (i) the 5 year Warrants to purchase 555,556 shares at an exercise price of $30.00 per share, and (ii) the 6 year Warrants to purchase and aggregate amount of 549,451 shares at an exercise price of $2.14 per 0.0432685 shares, in each case as contemplated by the Plan. "Person" means an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Plan" shall mean the Joint Prepackaged Plan of Reorganization of Tokheim Corporation and its subsidiary debtors as filed with and approved by the United States Bankruptcy Court for the District of Delaware. "Securities Act" means the Securities Act of 1933, as amended. "Warrant" is defined in the second paragraph hereof. "Warrant Certificate" is defined in the first paragraph hereof. "Warrant Share" means the Common Stock issuable upon the exercise of the Warrants. Section 12. Miscellaneous. (a) Governing Law. This Agreement shall be governed in all respects by the internal laws of the State of Indiana. (b) Entire Agreement. This Agreement, together with the Warrant Certificates, constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. (c) Amendment. No supplement, modification, waiver or termination of this Agreement (including without limitation any amendment or modification of any defined term used herein which is defined in any other agreement or instrument referred to herein) shall be binding against any Person unless executed in writing by such Person or a predecessor-in-interest of such Person. (d) Notices, etc. Each notice, demand, request, request for approval, consent, approval, disapproval, designation or other communication (each of the foregoing being referred to herein as a notice) required or desired to be given or made under this Agreement shall be in writing (except as otherwise provided in this Agreement), and shall be effective and deemed to have been received when delivered in person, when sent by fax with receipt acknowledged, five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or the next business day after having been sent by a nationally recognized overnight mail or courier service, receipt requested. Notices shall be addressed as follows: (x) if to any Holder, at such address or fax number as such Holder shall have furnished the Company in writing (or, if such Holder is a Lender, at such Holder's address set forth in the New Credit Agreement), or (y) if to the Company, at the address or fax number of its principal executive offices set forth below its signature hereon or at such other address or fax number as the Company shall have furnished to the Holders. Any notice or other communication required to be given hereunder to a Holder in connection with a registration may instead be given to the designated representative of such Holder. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which may be executed by fewer than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. (g) Captions. Captions are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. (h) Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. Whether or not any express assignment has been made in this Agreement, the provisions of this Agreement that are for the Lenders as Holders of Warrant Certificates are also for the benefit of, and shall be enforceable by, all subsequent holders of Warrant Certificates. (i) Remedies. The Company and the Holders acknowledge that there would be no adequate remedy at law if any Person fails to perform any of its obligations hereunder, and accordingly agree that the Company and each Holder, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of another party under this Agreement in accordance with the terms and conditions of this Agreement in any court of the United States or any State thereof having jurisdiction. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. TOKHEIM CORPORATION By: ------------------------------------- Name: Title: 10501 Corporate Drive Fort Wayne, Indiana 46845 Attention: Chief Financial Officer Facsimile: (219) 484-1110 BANK ONE, INDIANA, NATIONAL ASSOCIATION By: ------------------------------------- Name: Title: CREDIT LYONNAIS NEW YORK BRANCH By: ------------------------------------- Name: Title: BANKERS TRUST COMPANY By: ------------------------------------- Name: Title: ABN AMRO BANK N.V. By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: CREDIT AGRICOLE INDOSUEZ By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: CREDIT INDUSTRIEL ET COMMERCIAL By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: EATON VANCE INSTITUTIONAL SENIOR LOAN FUND By: Eaton Vance Management, as Investment Advisor By: ------------------------------------- Name: Title: OAKTREE CAPITAL MANAGEMENT, LLC By: ------------------------------------- Name: Title: OXFORD STRATEGIC INCOME FUND By: Eaton Vance Management, as Investment Advisor By: ------------------------------------- Name: Title: OAKTREE CAPITAL MANAGEMENT, LLC, as general partner and/or investment manager of certain funds and accounts it manages By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: OCTAGON LOAN TRUST By: Octagon Credit Investors, as Manager By: ------------------------------------- Name: Title: OCTAGON INVESTMENT PARTNERS II, LLC By: ------------------------------------- Name: Title: FINOVA CAPITAL CORPORATION By: ------------------------------------- Name: Title: BANK POLSKA KASA OPIEKI S.A. - PEKAO S.A. GROUP, NEW YORK BRANCH By: ------------------------------------- Name: Title: SENIOR DEBT PORTFOLIO By: Boston Management and Research, as Investment Advisor By: ------------------------------------- Name: Title: EATON VANCE SENIOR INCOME TRUST By: Eaton Vance Management, as Investment Advisor By: ------------------------------------- Name: Title: AMSOUTH BANK By: ------------------------------------- Name: Title: ARES LEVERAGED INVESTMENT FUND II, L.P. By: ARES Management II, L.P. its General Partner By: ------------------------------------- Name: Title: BEAR, STEARNS & CO. INC. By: ------------------------------------- Name: Title: WHIPPOORWILL/TOKHEIM OBLIGATIONS TRUST- 2000 By: Whippoorwill Associates, Incorporated, as its Investment Representative and Advisor By: ------------------------------------- Name: Title: BARCLAYS BANK PLC By: ------------------------------------- Name: Title: EXHIBIT A [FORM OF FACE OF WARRANT CERTIFICATE] WARRANT NO. _____ NUMBER OF WARRANT(S): _____ TOKHEIM CORPORATION SERIES A WARRANT CERTIFICATE Dated as of October [o], 2000 Series A Warrants to Purchase Common Stock This certifies that ____________ or registered assigns (the "Holder"), is the registered owner of the number of warrants set forth above (the "Warrants"), each of which represents the right, at any time after ________________ (the "Original Issuance Date") and on or before 5:00 p.m., Chicago, Illinois time, on ______________ (the "Exercise Period"), to purchase from Tokheim Corporation, an Indiana corporation (the "Company"), at the price per share of $_____ (the "Exercise Price") or by the cashless exercise provisions of section 3(d) of the Warrant Agreement (as defined below), one share of Common Stock, no par value, of the Company as such stock was constituted as of the Original Issuance Date, subject to adjustment as provided in the Warrant Agreement hereinafter referred to, upon surrender hereof, with the subscription form on the reverse hereof duly executed, by hand or by mail to the Company, and simultaneous payment in full (by certified or official bank or bank cashier's check payable to the order of the Company, or by wire transfer of immediately available funds to an account designated by the Company) of the Exercise Price in respect of each Warrant represented by this Warrant Certificate that is so exercised, all subject to the terms and conditions hereof and of the Warrant Agreement. Upon any partial exercise of the Warrants represented by this Warrant Certificate, there shall be issued to the holder hereof a new Warrant Certificate representing the Warrants that were not exercised. No fractional shares may be issued upon the exercise of rights to purchase hereunder, and as to any fraction of a share otherwise issuable, the Company will make a cash payment in lieu of such issuance, as provided in the Warrant Agreement. This Warrant Certificate is issued under and in accordance with a Warrant Agreement, dated as of October [o], 2000 (the "Warrant Agreement"), between the Company and the Purchasers signatory thereto, and is subject to the terms and provisions contained therein. The Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the registered holders of the Warrants. The Holder of this Warrant Certificate consents to all terms and provisions of the Warrant Agreement by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Company and may be obtained by writing to the Company as described below. All notices, requests, demands and other communications relating to this Warrant Certificate shall be in writing, including by facsimile, addressed (a) if to the registered owner hereof, to it at the address furnished by the registered owner to the Company, and (b) if to the Company, to it at 10501 Corporate Drive, Fort Wayne, Indiana 46845, facsimile no.: (219) 484-1110, Attention: Chief Financial Officer, or to such other address as any party shall notify the other party in writing, and shall be effective, in the case of written notice by mail, three days after placement into the mails (first class, postage prepaid), and in the case of notice by facsimile, on the same day as receipt is confirmed. This Warrant Certificate shall be binding upon and inure to the sole and exclusive benefit of the Company, its successors and assigns, the registered Holder or Holders from time to time of the Warrants and the Warrant Shares. This Warrant Certificate shall be construed in accordance with and governed by the internal laws of the State of Indiana. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Dated: __________, 2000 TOKHEIM CORPORATION By: ------------------------------------- Name: Title: [FORM OF REVERSE OF WARRANT CERTIFICATE] TOKHEIM CORPORATION The transfer of this Warrant Certificate and all rights hereunder is registrable by the registered holder hereof, in whole or in part, on the register of the Company upon surrender of this Warrant Certificate at the office or agency of the Company, duly endorsed or accompanied by a written instrument of transfer duly executed and in form satisfactory to the Company by the registered holder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer or registration thereof. Upon any partial transfer the Company will cause to be delivered to such holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. This Warrant Certificate may be exchanged at the office or agency of the Company for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the Holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the Holder of this Warrant Certificate, as such, shall not be entitled to any rights of a stockholder of the Company, including, but not limited to, the right to vote, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders, and shall not be entitled to receive notice of any proceedings of the Company except as provided in the Warrant Agreement. Nothing contained herein shall be construed as imposing any liabilities upon the Holder of this Warrant Certificate to purchase any securities or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors or stockholders of the Company or otherwise. This Warrant Certificate shall be void and all rights represented hereby shall cease unless exercised before the close of business on -----------------. Witness the facsimile seal of the Company and the signature of its duly authorized officer. FORM OF ELECTION TO PURCHASE (To be executed by the holder of Warrants if such holder desires to exercise Warrants evidenced by the foregoing Warrant Certificate) To Tokheim Corporation: The undersigned hereby irrevocably elects to exercise ____________ Warrants evidenced by the foregoing Warrant Certificate for, and to [purchase thereunder, _______________ shares of Common Stock issuable upon exercise of said Warrants and delivery of $___________ (in cash as provided for in the foregoing Warrant Certificate) and any applicable taxes payable by the undersigned pursuant to such Warrant Certificate.][receive, in accordance with Section 3(d) of the Warrant Agreement, ______ shares of Common Stock issuable upon exercise of said Warrants and delivery of any applicable taxes payable by the undersigned pursuant to such Warrant Agreement]. The undersigned requests that certificates for such shares be issued in the name of _______________________________. PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER - ---------------------------------- - ---------------------------------- - ---------------------------------- (Please print name and address) If said number of Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so exercised be issued in the name of and delivered to - ---------------------------------- - ---------------------------------- - ---------------------------------- (Please print name and address) Dated: , Name of holder of Warrant -------------- ----- (Print:) ------------------------------- (By:) ------------------------------- (Title:) ------------------------------- FORM OF ASSIGNMENT FOR VALUE RECEIVED, _________________________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned in and to the number of Warrants (as defined in and evidenced by the foregoing Warrant Certificate) set opposite the name of such assignee below and in and to the foregoing Warrant Certificate with respect to said Warrants and the shares of Common Stock issuable upon exercise of said Warrants: Name of Assignee Address Number of Warrants - ---------------- ------- ------------------ If the total of said Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so assigned be issued in the name of and delivered to the undersigned. Name of holder of Warrant (Print:) --------------------------------- EX-4 6 0006.txt EXHIBIT 4.28 - SERIES B WARRANT AGREEMENT Exhibit 4.28 SERIES B WARRANT AGREEMENT SERIES B WARRANT AGREEMENT, dated as of October 20, 2000 (this "Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation (the "Company"), and Computershare Investor Services, LLC, a Delaware limited liability company, as Warrant Agent (the "Warrant Agent"). WHEREAS, in connection with the Plan, the Company has agreed to issue certain warrants (the "Warrants") evidenced by the Warrant Certificates substantially in the form of Exhibit A hereto to purchase shares of the Company's Common Stock, no par value (the "Common Stock"), at the exercise price of $30.00 per share (the "Exercise Price") from the Original Issuance Date until October 20, 2005 (the "Exercise Period"), pursuant to the terms of such Warrants; WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance of Series B Warrant Certificates (together with any certificates issued in replacement or substitution therefor, the "Warrant Certificates") to the registered holders (the "Holders") and other matters as provided herein; NOW, THEREFORE, in consideration of the foregoing and the covenants of the parties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the terms and conditions set forth herein, the parties hereby agree as follows: Section 1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. Section 2. Registration. The Company shall register each Warrant upon records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of each Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes. Section 3. Transfers and Exchanges of Warrants and Warrant Shares. (a) Registration of Transfers and Exchanges. The Company and the Warrant Agent shall register the transfer of any Warrants upon records to be maintained by the Company for that purpose upon surrender of a Warrant Certificate, with the Form of Assignment attached thereto appropriately completed and duly signed, to the Company or the Warrant Agent at the office specified in or pursuant to Section 4(c). Upon any such registration of transfer, a new Warrant Certificate, in substantially the form of Exhibit A hereto, evidencing the Warrants so transferred shall be issued to the transferee and a new Warrant Certificate, in similar form, evidencing the remaining Warrants not so transferred, if any, shall be issued to the then registered Holder thereof. (b) Warrants Exchangeable for Different Denominations. Each Warrant Certificate is exchangeable, upon the surrender thereof by the Holder thereof at the office of the Company or the Warrant Agent specified in or pursuant to Section 4(c), for new Warrant Certificates, in substantially the form of Exhibit A hereto, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased thereunder, each of such new Warrant Certificates to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by said Holder thereof at the time of such surrender. Section 4. Duration and Exercise of Warrants. (a) Exercise. Each Warrant shall be exercisable by the registered Holder thereof on any Business Day during the Exercise Period. (b) Ratio. Subject to the provisions of the Warrant Certificates and this Agreement, including adjustments to the number of Warrant Shares issuable on the exercise of each Warrant and to the Exercise Price pursuant to Section 8, the Holder of each Warrant during the Exercise Period shall have the right to purchase from the Company (and the Company shall be obligated to issue and sell to such holder of a Warrant) at the Exercise Price one fully paid Warrant Share which is non-assessable. (c) Payment of Exercise Price. Subject to Sections 5, 9 and 11, upon surrender of each Warrant Certificate, with the Form of Election to Purchase attached thereto duly filled in and signed, to the Company at its office at 10501 Corporate Drive, Fort Wayne, Indiana 46845, Attention: Chief Financial Officer, to the Warrant Agent at its office at Two North LaSalle St., Chicago, Illinois 60602, or at such other address as the Company or the Warrant Agent may specify in writing to the then registered holder of the Warrants, and upon either (i) payment of the Exercise Price multiplied by the number of Warrant Shares then issuable upon exercise of the Warrants being exercised in lawful money of the United States of America or (ii) notice by the registered Holder of the Warrant Certificate of its election to exercise the Warrants evidenced by such Warrant Certificate on a cashless basis in the manner described in subsection (d) of this Section 4, all as specified by the Holder of the Warrant Certificate in the Form of Election to Purchase, the Company or the Warrant Agent shall promptly issue and cause to be delivered to or upon the written order of the registered Holder of such Warrants, and in such name or names as such registered Holder may designate, one or more certificates for the Warrant Shares issued upon such exercise of such Warrants. Any Person so designated to be named therein shall be deemed to have become Holder of record of such Warrant Shares as of the Date of Exercise of such Warrants. The "Date of Exercise" of any Warrant means the date on which the Company or the Warrant Agent shall have received (i) the Warrant Certificate representing such Warrants, with the Form of Election to Purchase attached thereto appropriately completed and duly signed, and (ii) unless the Holder of such Warrant Certificate makes the election described in subsection (d) of this Section 4, payment of the Exercise Price for such Warrant. (d) Cashless Exercise. In lieu of paying the Exercise Price upon exercise of the Warrants, the Holder of any Warrant Certificate may elect to receive a number of Warrant Shares whose aggregate Market Price as of the Date of Exercise is equal to the fair value of such Warrant Certificate (or the portion hereof evidencing the number of Warrants then being exercised) on such date, in which event the Company shall issue to the Holder of such Warrant Certificate, upon receipt of notice of such election, a number of Warrant Shares equal to (i) the number of Warrant Shares that would otherwise be issuable upon payment of the Exercise Price of the Warrants then being exercised minus (ii) the number of shares of Common Stock having an aggregate Market Price equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares otherwise issuable upon payment of the Exercise Price of the Warrants then being exercised. (e) Partial Exercise. The Warrants evidenced by each Warrant Certificate shall be exercisable, either as an entirety or, from time to time, for part only of the number of Warrants evidenced by such Warrant Certificate. If less than all of the Warrants evidenced by any Warrant Certificate are exercised at any time, the Company or the Warrant Agent shall issue, at its expense, to the relevant Holder, a new Warrant Certificate, in substantially the form of the surrendered Warrant Certificate, for the remaining number of Warrants evidenced by such Warrant Certificate. Section 5. Payment of Taxes. The Company will pay all transfer and stock issuance taxes attributable to the issuance of the Warrants and the Warrant Shares; provided, however, that the Company shall not be required to pay any tax in respect of the transfer of Warrants, or the issuance or delivery of certificates for Warrant Shares or other securities in respect of the Warrant Shares upon the exercise of Warrants, to a Person other than a then existing registered Holder of Warrants or an Affiliate of such registered Holder. Section 6. Mutilated or Missing Warrant Certificate. If a Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company or the Warrant Agent will, upon request by the registered Holder of such Warrant Certificate, issue to such Holder, in exchange for and upon cancellation of the mutilated Warrant Certificate, or in substitution for the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in substantially the form of the replaced Warrant Certificate, of like tenor and representing the equivalent number of Warrants, but, in the case of loss, theft or destruction, only upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of the Warrant Certificate and, if requested by the Company or the Warrant Agent, a written agreement of indemnity and/or a surety bond from the Holder satisfactory to the Company. Section 7. Reservation, Listing and Issuance of Warrant Shares. (a) Available Warrant Shares. The Company will at all times have authorized, and reserve and keep available, free from preemptive rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants, the number of Warrant Shares issuable upon exercise of the Warrants. (b) Adjustments Below Par. Before taking any action which could cause an adjustment pursuant to Section 8 reducing the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action which may be necessary in order that the Company may validly and legally issue at the Exercise Price as so adjusted Warrant Shares that are fully paid and non-assessable. (c) Warrant Shares Duly Authorized. The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Agreement, be (i) duly authorized, validly issued, fully paid and non-assessable, and (ii) free from all taxes with respect to the issuance thereof and from all adverse claims, liens, pledges, encumbrances, charges and security interests created by the Company. Section 8. Adjustments of Price and Number of Warrant Shares. (a) Adjustment of Number of Warrant Shares Issuable. Upon each adjustment of the Exercise Price pursuant to this Section 8, the Holder of a Warrant shall be entitled to purchase, at the Exercise Price in effect after such adjustment, a number of Warrant Shares equal to the amount obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. (b) Adjustment of Price upon Issuance of Common Stock. If and whenever after the date hereof, the Company shall issue or sell any shares of Common Stock for a consideration per share less than 100% of the Market Price (as hereinafter defined) at the time of such issue or sale, then forthwith upon such issue or sale, the Exercise Price shall be reduced to the price determined as follows: by multiplying the then existing Exercise Price by a fraction (A) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered would purchase at the current Market Price and (b) the denominator of which shall be the number of shares of Common Stock Deemed Outstanding plus the number of additional shares of Common Stock to be offered for issue or sale. (c) Additional Adjustments. For the purposes of subsection (b) of this Section, the following clauses shall also be applicable: (i) Issuance of Rights or Options. If at any time the Company shall grant (whether directly or by assumption in a merger in which the Company is the surviving Company or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities") whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such rights or options or upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of the granting of such rights or options, then the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such rights or options shall (as of the date of granting of such rights or options) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 8(b). Except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock or of such Convertible Securities upon exercise of such rights or options or upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities. For the purposes of this clause (i), the price per share for which Common Stock is issuable upon the exercise of any such rights or options or upon conversion or exchange of any such Convertible Securities shall be determined by dividing (A) the total amount, if any, received or receivable by the Company as consideration for the granting of such rights or options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such rights or options, plus, in the case of such rights or options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options. (ii) Issuance of Convertible Securities. If the Company shall issue (whether directly or by assumption in a merger in which the Company is the surviving corporation or otherwise) or sell any Convertible Security, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall (as of the date of the issue or sale of such Convertible Securities) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 8(b), provided that (A) except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities, and (B) if any such issue or sale of such Convertible Securities is made upon exercise of any rights to subscribe for or to purchase or any option to purchase any such Convertible Securities for which adjustments of any Exercise Price have been or are to be made pursuant to other provisions of this subsection (c), no further adjustment of any Exercise Price shall be made by reason of such issue or sale. For the purposes of this clause (ii), the price per share for which Common Stock is issuable upon conversion or exchange of Convertible Securities shall be determined by dividing (C) the total amount, if any, received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (D) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. (iii) Readjustments. If the purchase price provided for in any rights or options referred to in clause (i) above, or the additional consideration, if any, payable upon the conversion or exchange of Convertible Securities referred to in clause (i) or (ii) above, or the rate at which any Convertible Securities referred to in clause (i) or (ii) above are convertible into or exchangeable for Common Stock, shall be reduced, then the Exercise Price in effect at the time of such event shall forthwith be readjusted to the Exercise Price which would have been in effect at such time had such rights, options or Convertible Securities then outstanding provided for such reduced purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold. On the expiration of any such option or right or the termination of any such right to convert or exchange such Convertible Securities, the Exercise Price and number of Warrant Shares issuable pursuant hereto then in effect shall be readjusted to the Exercise Price and number of Warrant Shares which would have been in effect at the time of such expiration or termination had such warrant, right, option or Convertible Security never been issued, and the shares of Common Stock issuable thereunder shall no longer be Common Stock Deemed Outstanding. (iv) Consideration for Stock. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor, without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined reasonably and in good faith by the board of directors of the Company, without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If the Company shall declare or pay a dividend or make any other distribution upon any stock of the Company payable in Common Stock, Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration. If any shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the board of directors of the Company or such portion of the assets and business of the non- surviving corporation as such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the case may be. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Exercise Price in accordance with Section 8(b), the determination of the number of shares of Common Stock issuable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of Section 8(e), shall be made after giving effect to such adjustment of the Exercise Price. (v) Record Date. If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock or in Convertible Securities or (B) to rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right, as the case may be. (vi) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock for the purposes of this Section 8. (d) Subdivision or Combination of Stock. If the Company shall at any time subdivide (whether by stock split, stock dividend, recapitalization or otherwise) the outstanding shares of Common Stock into a greater number of shares or pay a dividend or make a distribution to holders of Common Stock in the form of Common Stock, the Exercise Price in effect immediately prior to such subdivision, payment or distribution shall be proportionately reduced; conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares (whether by reverse stock split or otherwise), the Exercise Price in effect immediately prior to such combination shall be proportionately increased. (e) Adjustments for Consolidation, Merger, Sale of Assets, Reorganization, etc. If the Company (i) consolidates with or merges into any other entity and is not the continuing or surviving corporation of such consolidation or merger, or (ii) permits any other entity to consolidate with or merge into the Company and the Company is the continuing or surviving corporation but, in connection with such consolidation or merger, the Common Stock is changed into or exchanged for stock or other securities of any other corporation or cash or any other assets, or (iii) transfers all or substantially all of its properties and assets to any other entity, or (iv) effects a recapitalization, capital reorganization or reclassification of the capital stock of the Company in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Stock (each of the transactions referred to in the foregoing clauses (i) through (iv) being an "Organic Change"), then, and in each such case, proper provision shall be made in form and substance reasonably satisfactory to the Holders so that, upon the basis and upon the terms and in the manner provided in this subsection (f), the holder of this Warrant Certificate, upon the exercise of each Warrant at any time after the consummation of such Organic Change, shall be entitled to receive (at the aggregate Exercise Price in effect for all Warrant Shares issuable upon such exercise immediately prior to such consummation as adjusted to the time of such transaction), in lieu of shares of Common Stock issuable upon such exercise prior to such consummation, the stock and other securities, cash and assets to which such holder would have been entitled upon such consummation if such holder had so exercised such Warrant immediately prior thereto (subject to adjustments subsequent to such corporate action as nearly equivalent as possible to the adjustments provided for in this Section 8). (f) Notice of Adjustment. Upon any adjustment of any Exercise Price, then and in each such case the Company or the Warrant Agent (at the expense of the Company), shall promptly deliver a notice to the registered holder of the Warrants, which notice shall state the Market Price, if any adjustment depends upon a determination of Market Price, and the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of each Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. (g) Other Notices. In case at any time: (i) the Company shall declare any cash dividend on its Common Stock; (ii) the Company shall pay any dividend payable in stock upon its Common Stock or make any distribution (other than regular cash dividends) to the holders of its Common Stock; (iii) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or other rights; (iv) the Company shall authorize to all holders of its Common Stock the distribution of evidence of its indebtedness or assets (other than cash dividends or cash distributions payable out of earnings or earned surplus or dividends payable in Common Stock); (v) there shall be any Organic Change; (vi) there shall be a voluntary or involuntary dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, or winding up of the Company; or (vii) the Company proposes to take any other action or an event occurs which would require an adjustment of the Exercise Price pursuant to subsection (j) of this Section 8; then, in any one or more of said cases, the Company or the Warrant Agent (upon receiving written notice from the Company) shall give written notice, addressed to the holder of each Warrant Certificate at the address of such holder as shown on the books of the Company, of (1) the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights, or (2) the date (or, if not then known, a reasonable approximation thereof by the Company) on which such Organic Change or other action or event, as the case may be, shall take place (or, in the case of clause (vi) above, the date on which the relevant action or event took place). Such notice shall also specify (or, if not then known, reasonably approximate) the date as of which the holders of Common Stock of record shall participate in such dividends, distribution or subscription rights, or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Organic Change, dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or other action or event, as the case may be. Such written notice shall be given at least twenty days prior to the action in question and not less than twenty days prior to the record date or the date on which the Company's transfer books are closed in respect thereto; provided, that no advance notice need be given of any event or action specified in clause (vi) above, but the Company or the Warrant Agent shall give notice of such event as promptly thereafter as practicable. The Company shall be solely responsible for the payment of all costs and expenses associated with the provision of any notices referenced herein. (h) Certain Events. If any event occurs of the type contemplated by the provisions of this Section 8 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company shall appoint a firm of independent certified public accountants (which may be the regular auditors of the Company) of recognized national standing, which shall give their opinion upon the adjustment, if any, on a basis consistent with the basic intent and principles established in the other provisions of this Section 8, necessary to preserve, without dilution, the exercise rights of the registered holders of the Warrant Certificates. Upon receipt of such opinion, the Company shall forthwith make the adjustments described therein. (i) Certain Exceptions to Antidilution Protection. Notwithstanding anything to the contrary in this Section 8, there shall be no adjustment to the Exercise Price or to the number of Warrant Shares issuable upon exercise of the Warrants: (i) in connection with the sale or issuance of the Warrant Certificates and Warrant Shares hereunder; (ii) upon any issuance or exercise of the Other Warrants in accordance with the terms thereof in effect on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable under the Other Warrants pursuant to the terms thereof as in effect on the Original Issuance Date; (iii) upon exercise of any Convertible Security outstanding on the Original Issuance Date; (iv) upon exercise of any options under the Management Option Plan; or (v) upon the issuance of any other securities as contemplated by the Plan, including the new Series A Senior Preferred Stock or the new Common Stock (each as described therein). (j) Other Securities. If at any time, as a result of an adjustment made pursuant to this Section 8, any holder of Warrants shall become entitled to purchase any securities of the Company other than shares of Common Stock, the number or amount of such other securities so purchasable and the consideration for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 8 hereof. Section 9. No Stock Rights. No holder of any Warrant Certificate, as such, shall be entitled to vote or be deemed the holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise thereof, nor shall anything contained herein be construed to confer upon the Holder of any Warrant Certificate, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders (except as provided herein), or to receive dividends (except as provided herein) or subscription rights or otherwise, until the Date of Exercise of the Warrants shall have occurred. Section 10. Fractional Shares. The Company shall not be required to issue fractions of Warrant Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Warrant Shares. As to any fractional share of Common Stock which the Holder would otherwise be entitled to subscribe for from the Company upon such exercise, the Company shall purchase from the Holder such unissued fractional share at a price equal to an amount calculated by multiplying such fractional share (calculated to the nearest 1/100th of a share) by the then-Market Price determined in accordance with the terms of this Agreement. Payment of such amount shall be made in cash or by check payable to the order of the Holder at the time of delivery of any certificate or certificates arising upon such exercise. Section 11. No Registration under Securities Act. Neither the Warrants nor the Warrant Shares have been registered under the Securities Act, but they have been issued pursuant to a valid exemption from the Securities Act pursuant to Section 1145 of the Bankruptcy Code. The Holder of each Warrant Certificate, by acceptance thereof, represents that it is acquiring the Warrants to be issued to it for its own account and not with a view to the distribution thereof, and agrees not to sell, transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a registration statement is effective for such Warrants or Warrant Shares under the Securities Act or in the opinion of such holder's counsel (a copy of which opinion shall be delivered to the Company) such transaction is exempt from the registration requirements of the Securities Act; provided that Warrants and Warrant Shares issued to such Holder may be transferred to any Affiliate of such Holder, without any such registration (to the extent permitted by law) or opinion, subject to the foregoing restriction on any further sale, transfer, pledge or hypothecation by such Affiliate. Section 12. Payment for Services. The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and counsel fees and disbursements and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties hereunder. Section 13. Indemnification. Except as set forth in the following paragraph, the Warrant Agent and its affiliates, members, officers, directors, employees, agents, attorneys, successors and assigns (each, an "Indemnified Party") shall be indemnified and held harmless by the Company for and against any and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' and consultants' fees and expenses) suffered or incurred by them, arising out of or resulting from any of the services provided under this Agreement. The obligations of the Company under this section shall survive any termination of this Agreement and the resignation or removal of the Warrant Agent. Section 14. Limitation of Liability. The Warrant Agent shall be obligated only for the performance of such duties as are specifically set forth herein. The Warrant Agent shall have no liability or obligation under this Agreement except for the Warrant Agent's gross negligence or willful misconduct. The Warrant Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Warrant Agent may rely upon any instrument, whether bearing original, conformed or facsimile signatures, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein which the Warrant Agent shall in good faith believe to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event shall the Warrant Agent be liable for incidental, indirect, special, consequential or punitive damages. Section 15. Certain Definitions. The following terms have the meanings set forth below: "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. "Business Day" means any day, other than a Saturday, Sunday or any other day on which banks are required or authorized to close in the State of Illinois or the State of Indiana. "Common Stock" is defined in the second paragraph hereof. "Common Stock Deemed Outstanding" means, at any given time, (x) the number of shares of Common Stock actually outstanding at such time, plus (y) the number of shares of Common Stock issuable pursuant to any outstanding Convertible Securities, or rights or options to purchase Common Stock or Convertible Securities but only to the extent such Convertible Securities, rights or options are In the Money at such time. "Company" is defined in the first paragraph hereof. "Convertible Securities" is defined in Section 8(c)(i). "Date of Exercise" is defined in Section 4(c). "Exercise Period" is defined in the second paragraph hereof. "Exercise Price" is defined in the second paragraph hereof. "Holder" is defined in the third paragraph hereof. "In the Money" means, as to any Convertible Securities or rights or options to purchase Common Stock or Convertible Securities at any time, that such Convertible Securities, rights or options have a conversion price, exercise price or similar price per share of Common Stock that is less than the Market Price as of the date of determination. "Management Option Plan" shall mean that certain management option plan to be entered into on the Original Issuance Date. "Market Price" shall mean the average of the daily closing prices per share of the Common Stock for the ten consecutive trading days immediately preceding the day as of which "Market Price" is being determined (exclusive of "ex-dividend" and similar dates) provided, however, that (i) Market Price shall be the closing price per share of the Common Stock of the Company on the date of issuance with respect to the issuance of options to purchase Common Stock of the Company issued to directors, officers or employees of the Company and (ii) Market Price shall be the closing price per share of the Common Stock of the Company on the date the underwriting agreement is executed with respect to any bona fide underwritten public offering of the Common Stock of the Company involving net cash proceeds to the Company of at least $1,000,000. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the principal national securities exchange on which the shares are listed or admitted to trading, or if the shares are not so listed or admitted to trading, on the National Market System of NASDAQ or, if prices for the shares are not quoted on such National Market System, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through NASDAQ or through a similar organization if NASDAQ is no longer reporting such information. If shares of the Common Stock are not listed or admitted to trading on any exchange or quoted through NASDAQ or any similar organization, the "Market Price" shall be deemed to be the higher of (x) the book value of a share of the Common Stock as determined by any firm of independent certified public accountants of recognized national standing, selected by the board of directors of the Company, as at the last day of any month ending within sixty days preceding the date as of which the determination is to be made and (y) the fair value thereof determined in good faith by a nationally recognized independent investment banking firm selected by the Company and reasonably acceptable to the holders of a majority of the Warrants as of a date which is within 30 days of the date as of which the determination is to be made (the fees and expenses of such independent certified public accountants and independent investment banking firm to be paid by the Company); provided, however, that in the case of any determination of Market Price pursuant to this sentence, the Market Price shall not be less than the amount of the consideration per share received by the Company in respect of the most recent sale, transfer or other issuance of Common Stock by the Company (other than as a result of the exercise of any option or warrant or the conversion of any Convertible Security) in an arms' length transaction to an unaffiliated third party within the 90-day period immediately preceding the date as to which the determination is to be made. Anything herein to the contrary notwithstanding, if the Company shall issue any shares of Common Stock or Convertible Securities or rights or options to purchase Common Stock or Convertible Securities in connection with the acquisition by the Company of the stock or assets of any other corporation or the merger of any other corporation into the Company, the Market Price shall be determined in the manner described in this definition as of the date the number of shares of Common Stock, Convertible Securities (or in the case of Convertible Securities other than stock, the aggregate principal amount of Convertible Securities), rights or options was determined (as set forth in a written agreement between the Company and the other party to the transaction) rather than on the date of issuance of such shares of Common Stock, Convertible Securities, rights or options. "Organic Change" is defined in Section 8(e). "Original Issuance Date" means October 20, 2000. "Other Warrants" shall mean (i) the 5 year Warrants to purchase 678,334 shares at an exercise price of $0.01 per share, and (ii) the 6 year Warrants to purchase 549,451 shares at an exercise price of $2.14 per 0.04326865 share, in each case as contemplated by the Plan. "Person" means an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Plan" shall mean the Joint Prepackaged Plan of Reorganization of Tokheim Corporation and its subsidiary debtors as filed with and approved by the United States Bankruptcy Court for the District of Delaware. "Securities Act" means the Securities Act of 1933, as amended. "Warrant" is defined in the second paragraph hereof. "Warrant Agent" is defined in the first paragraph hereof. "Warrant Certificate" is defined in the third paragraph hereof. "Warrant Share" means the Common Stock issuable upon the exercise of the Warrants. Section 16. Miscellaneous. (a) Governing Law. This Agreement shall be governed in all respects by the internal laws of the State of Indiana. (b) Entire Agreement. This Agreement, together with the Warrant Certificates, constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. (c) Amendment. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates. No other changes may be made to this Agreement without the consent of the Holder. (d) Notices, etc. Each notice, demand, request, request for approval, consent, approval, disapproval, designation or other communication (each of the foregoing being referred to herein as a notice) required or desired to be given or made under this Agreement shall be in writing (except as otherwise provided in this Agreement), and shall be effective and deemed to have been received when delivered in person, when sent by fax with receipt acknowledged, five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or the next Business Day after having been sent by a nationally recognized overnight mail or courier service, receipt requested. Notices shall be addressed as follows: (x) if to any Holder, at such address or fax number as such Holder shall have furnished the Company in writing, or (y) if to the Company, at the address or fax number of its principal executive offices set forth below its signature hereon or at such other address or fax number as the Company shall have furnished to the Holders. Any notice or other communication required to be given hereunder to a Holder in connection with a registration may instead be given to the designated representative of such Holder. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which may be executed by fewer than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. (g) Captions. Captions are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. (h) Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. Whether or not any express assignment has been made in this Agreement, the provisions of this Agreement that are for the Holders of Warrant Certificates are also for the benefit of, and shall be enforceable by, all subsequent holders of Warrant Certificates. The acceptance of the Warrant Certificate by the Holder shall be deemed an acceptance of the terms and conditions of the Warrant Agreement. (i) Remedies. The Company and the Holders acknowledge that there would be no adequate remedy at law if any Person fails to perform any of its obligations hereunder, and accordingly agree that the Company and each Holder, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of another party under this Agreement in accordance with the terms and conditions of this Agreement in any court of the United States or any State thereof having jurisdiction. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. TOKHEIM CORPORATION By:____________________________________ Name: Title: 10501 Corporate Drive Fort Wayne, Indiana 46845 Attention: Chief Financial Officer Facsimile: (219) 484-1110 COMPUTERSHARE INVESTOR SERVICES, LLC By:_______________________________________ Name: Title: Two North LaSalle Street Chicago, IL 60602 Attention: __________________________ Facsimile: __________________________ EXHIBIT A [FORM OF FACE OF WARRANT CERTIFICATE] WARRANT NO. _____ NUMBER OF WARRANT(S): _____ TOKHEIM CORPORATION SERIES B WARRANT CERTIFICATE Dated as of October [o], 2000 Series B Warrants to Purchase Common Stock This certifies that ____________ or registered assigns (the "Holder"), is the registered owner of the number of warrants set forth above (the "Warrants"), each of which represents the right, at any time after ________________ (the "Original Issuance Date") and on or before 5:00 p.m., Chicago, Illinois time, on ______________ (the "Exercise Period"), to purchase from Tokheim Corporation, an Indiana corporation (the "Company"), at the price per share of $_____ (the "Exercise Price") or by the cashless exercise provisions of Section 4(d) of the Warrant Agreement (as defined below), one share of Common Stock, no par value, of the Company as such stock was constituted as of the Original Issuance Date, subject to adjustment as provided in the Warrant Agreement hereinafter referred to, upon surrender hereof, with the subscription form on the reverse hereof duly executed, by hand or by mail to the Company, and simultaneous payment in full (by certified or official bank or bank cashier's check payable to the order of the Company, or by wire transfer of immediately available funds to an account designated by the Company) of the Exercise Price in respect of each Warrant represented by this Warrant Certificate that is so exercised, all subject to the terms and conditions hereof and of the Warrant Agreement. Upon any partial exercise of the Warrants represented by this Warrant Certificate, there shall be issued to the holder hereof a new Warrant Certificate representing the Warrants that were not exercised. No fractional shares may be issued upon the exercise of rights to purchase hereunder, and as to any fraction of a share otherwise issuable, the Company will make a cash payment in lieu of such issuance, as provided in the Warrant Agreement. This Warrant Certificate is issued under and in accordance with a Warrant Agreement, dated as of October [o], 2000 (the "Warrant Agreement"), between the Company and [o], as Warrant Agent, and is subject to the terms and provisions contained therein. The Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the registered holders of the Warrants. The Holder of this Warrant Certificate consents to all terms and provisions of the Warrant Agreement by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Company and may be obtained by writing to the Company as described below. All notices, requests, demands and other communications relating to this Warrant Certificate shall be in writing, including by facsimile, addressed (a) if to the registered owner hereof, to it at the address furnished by the registered owner to the Company, (b) if to the Company, to it at 10501 Corporate Drive, Fort Wayne, Indiana 46845, facsimile no.: (219) 484-1110, Attention: Chief Financial Officer, or (c) if to the Warrant Agent, to it at [o], facsimile no.: [o], Attention: [o]; or to such other address as any party shall notify the other party in writing, and shall be effective, in the case of written notice by mail, three days after placement into the mails (first class, postage prepaid), and in the case of notice by facsimile, on the same day as receipt is confirmed. This Warrant Certificate shall be binding upon and inure to the sole and exclusive benefit of the Company, its successors and assigns, the registered Holder or Holders from time to time of the Warrants and the Warrant Shares. This Warrant Certificate shall be construed in accordance with and governed by the internal laws of the State of Indiana. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Dated: __________, 2000 TOKHEIM CORPORATION By: Name: Title: WARRANT AGENT By: Name: Title: [FORM OF REVERSE OF WARRANT CERTIFICATE] TOKHEIM CORPORATION The transfer of this Warrant Certificate and all rights hereunder is registrable by the registered holder hereof, in whole or in part, on the register of the Company upon surrender of this Warrant Certificate at the office or agency of the Company, duly endorsed or accompanied by a written instrument of transfer duly executed and in form satisfactory to the Company by the registered holder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer or registration thereof. Upon any partial transfer the Company will cause to be delivered to such holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. This Warrant Certificate may be exchanged at the office or agency of the Company for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the Holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the Holder of this Warrant Certificate, as such, shall not be entitled to any rights of a stockholder of the Company, including, but not limited to, the right to vote, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders, and shall not be entitled to receive notice of any proceedings of the Company except as provided in the Warrant Agreement. Nothing contained herein shall be construed as imposing any liabilities upon the Holder of this Warrant Certificate to purchase any securities or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors or stockholders of the Company or otherwise. This Warrant Certificate shall be void and all rights represented hereby shall cease unless exercised before the close of business on _________________. Witness the facsimile seal of the Company and the signature of its duly authorized officer. FORM OF ELECTION TO PURCHASE (To be executed by the holder of Warrants if such holder desires to exercise Warrants evidenced by the foregoing Warrant Certificate) To Tokheim Corporation: The undersigned hereby irrevocably elects to exercise ____________ Warrants evidenced by the foregoing Warrant Certificate for, and to [purchase thereunder, _______________ shares of Common Stock issuable upon exercise of said Warrants and delivery of $___________ (in cash as provided for in the foregoing Warrant Certificate) and any applicable taxes payable by the undersigned pursuant to such Warrant Certificate.][receive, in accordance with Section 4(d) of the Warrant Agreement, ______ shares of Common Stock issuable upon exercise of said Warrants and delivery of any applicable taxes payable by the undersigned pursuant to such Warrant Agreement]. The undersigned requests that certificates for such shares be issued in the name of _______________________________. PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER __________________________________ __________________________________ __________________________________ (Please print name and address) If said number of Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so exercised be issued in the name of and delivered to __________________________________ __________________________________ __________________________________ (Please print name and address) Dated: ______________, _____ Name of holder of Warrant (Print:) __________________________ (By:) __________________________ (Title:) __________________________ FORM OF ASSIGNMENT FOR VALUE RECEIVED, _________________________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned in and to the number of Warrants (as defined in and evidenced by the foregoing Warrant Certificate) set opposite the name of such assignee below and in and to the foregoing Warrant Certificate with respect to said Warrants and the shares of Common Stock issuable upon exercise of said Warrants: Name of Assignee Address Number of Warrants If the total of said Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so assigned be issued in the name of and delivered to the undersigned. Name of holder of Warrant (Print:) ______________________________ EX-4 7 0007.txt EXHIBIT 4.29 - SERIES C WARRANT AGREEMENT Exhibit 4.29 SERIES C WARRANT AGREEMENT SERIES C WARRANT AGREEMENT, dated as of October 20, 2000 (this "Agreement"), is by and among TOKHEIM CORPORATION, an Indiana corporation (the "Company"), and Computershare Investor Services, LLC, a Delaware limited liability company, as Warrant Agent (the "Warrant Agent"). WHEREAS, in connection with the Plan, the Company has agreed to issue certain warrants (the "Warrants") evidenced by the Warrant Certificates substantially in the form of Exhibit A hereto to purchase shares of the Company's Common Stock, no par value (the "Common Stock"), at the exercise price of $2.14 per 0.04326865 share (the "Exercise Price") from the Original Issuance Date until October 20, 2006 (the "Exercise Period"), pursuant to the terms of such Warrants; WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance of Series C Warrant Certificates (together with any certificates issued in replacement or substitution therefor, the "Warrant Certificates") to the registered holders (the "Holders") and other matters as provided herein; NOW, THEREFORE, in consideration of the foregoing and the covenants of the parties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the terms and conditions set forth herein, the parties hereby agree as follows: Section 1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. Section 2. Registration. The Company shall register each Warrant upon records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of each Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes. Section 3. Transfers and Exchanges of Warrants and Warrant Shares. (a) Registration of Transfers and Exchanges. The Company and the Warrant Agent shall register the transfer of any Warrants upon records to be maintained by the Company for that purpose upon surrender of a Warrant Certificate, with the Form of Assignment attached thereto appropriately completed and duly signed, to the Company or the Warrant Agent at the office specified in or pursuant to Section 4(c). Upon any such registration of transfer, a new Warrant Certificate, in substantially the form of Exhibit A hereto, evidencing the Warrants so transferred shall be issued to the transferee and a new Warrant Certificate, in similar form, evidencing the remaining Warrants not so transferred, if any, shall be issued to the then registered Holder thereof. (b) Warrants Exchangeable for Different Denominations. Each Warrant Certificate is exchangeable, upon the surrender thereof by the Holder thereof at the office of the Company or the Warrant Agent specified in or pursuant to Section 4(c), for new Warrant Certificates, in substantially the form of Exhibit A hereto, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased thereunder, each of such new Warrant Certificates to be dated the date of such exchange and to represent the right to purchase such number of Warrant Shares as shall be designated by said Holder thereof at the time of such surrender. Section 4. Duration and Exercise of Warrants. (a) Exercise. Each Warrant shall be exercisable by the registered Holder thereof on any Business Day during the Exercise Period. (b) Ratio. Subject to the provisions of the Warrant Certificates and this Agreement, including adjustments to the number of Warrant Shares issuable on the exercise of each Warrant and to the Exercise Price pursuant to Section 8, the Holder of each Warrant during the Exercise Period shall have the right to purchase from the Company (and the Company shall be obligated to issue and sell to such holder of a Warrant) at the Exercise Price 0.04326865 fully paid Warrant Shares per Warrant which is non-assessable. (c) Payment of Exercise Price. Subject to Sections 5, 9 and 11, upon surrender of each Warrant Certificate, with the Form of Election to Purchase attached thereto duly filled in and signed, to the Company at its office at 10501 Corporate Drive, Fort Wayne, Indiana 46845, Attention: Chief Financial Officer, to the Warrant Agent at its office at Two North LaSalle St., Chicago, Illinois 60602, or at such other address as the Company or the Warrant Agent may specify in writing to the then registered holder of the Warrants, and upon either (i) payment of the Exercise Price multiplied by the number of Warrant Shares then issuable upon exercise of the Warrants being exercised in lawful money of the United States of America or (ii) notice by the registered Holder of the Warrant Certificate of its election to exercise the Warrants evidenced by such Warrant Certificate on a cashless basis in the manner described in subsection (d) of this Section 4, all as specified by the Holder of the Warrant Certificate in the Form of Election to Purchase, the Company or the Warrant Agent shall promptly issue and cause to be delivered to or upon the written order of the registered Holder of such Warrants, and in such name or names as such registered Holder may designate, one or more certificates for the Warrant Shares issued upon such exercise of such Warrants. Any Person so designated to be named therein shall be deemed to have become Holder of record of such Warrant Shares as of the Date of Exercise of such Warrants. The "Date of Exercise" of any Warrant means the date on which the Company or the Warrant Agent shall have received (i) the Warrant Certificate representing such Warrants, with the Form of Election to Purchase attached thereto appropriately completed and duly signed, and (ii) unless the Holder of such Warrant Certificate makes the election described in subsection (d) of this Section 4, payment of the Exercise Price for such Warrant. (d) Cashless Exercise. In lieu of paying the Exercise Price upon exercise of the Warrants, the Holder of any Warrant Certificate may elect to receive a number of Warrant Shares whose aggregate Market Price as of the Date of Exercise is equal to the fair value of such Warrant Certificate (or the portion hereof evidencing the number of Warrants then being exercised) on such date, in which event the Company shall issue to the Holder of such Warrant Certificate, upon receipt of notice of such election, a number of Warrant Shares equal to (i) the number of Warrant Shares that would otherwise be issuable upon payment of the Exercise Price of the Warrants then being exercised minus (ii) the number of shares of Common Stock having an aggregate Market Price equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares otherwise issuable upon payment of the Exercise Price of the Warrants then being exercised. (e) Partial Exercise. The Warrants evidenced by each Warrant Certificate shall be exercisable, either as an entirety or, from time to time, for part only of the number of Warrants evidenced by such Warrant Certificate. If less than all of the Warrants evidenced by any Warrant Certificate are exercised at any time, the Company or the Warrant Agent shall issue, at its expense, to the relevant Holder, a new Warrant Certificate, in substantially the form of the surrendered Warrant Certificate, for the remaining number of Warrants evidenced by such Warrant Certificate. Section 5. Payment of Taxes. The Company will pay all transfer and stock issuance taxes attributable to the issuance of the Warrants and the Warrant Shares; provided, however, that the Company shall not be required to pay any tax in respect of the transfer of Warrants, or the issuance or delivery of certificates for Warrant Shares or other securities in respect of the Warrant Shares upon the exercise of Warrants, to a Person other than a then existing registered Holder of Warrants or an Affiliate of such registered Holder. Section 6. Mutilated or Missing Warrant Certificate. If a Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company or the Warrant Agent will, upon request by the registered Holder of such Warrant Certificate, issue to such Holder, in exchange for and upon cancellation of the mutilated Warrant Certificate, or in substitution for the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in substantially the form of the replaced Warrant Certificate, of like tenor and representing the equivalent number of Warrants, but, in the case of loss, theft or destruction, only upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of the Warrant Certificate and, if requested by the Company or the Warrant Agent, a written agreement of indemnity and/or a surety bond from the Holder satisfactory to the Company. Section 7. Reservation, Listing and Issuance of Warrant Shares. (a) Available Warrant Shares. The Company will at all times have authorized, and reserve and keep available, free from preemptive rights, for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon the exercise of the Warrants, the number of Warrant Shares issuable upon exercise of the Warrants. (b) Adjustments Below Par. Before taking any action which could cause an adjustment pursuant to Section 8 reducing the Exercise Price below the then par value (if any) of the Warrant Shares, the Company will take any corporate action which may be necessary in order that the Company may validly and legally issue at the Exercise Price as so adjusted Warrant Shares that are fully paid and non-assessable. (c) Warrant Shares Duly Authorized. The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Agreement, be (i) duly authorized, validly issued, fully paid and non-assessable, and (ii) free from all taxes with respect to the issuance thereof and from all adverse claims, liens, pledges, encumbrances, charges and security interests created by the Company. Section 8. Adjustments of Price and Number of Warrant Shares. (a) Adjustment of Number of Warrant Shares Issuable. Upon each adjustment of the Exercise Price pursuant to this Section 8, the Holder of a Warrant shall be entitled to purchase, at the Exercise Price in effect after such adjustment, a number of Warrant Shares equal to the amount obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of such Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. (b) Adjustment of Price upon Issuance of Common Stock. If and whenever after the date hereof, the Company shall issue or sell any shares of Common Stock for a consideration per share less than 100% of the Market Price (as hereinafter defined) at the time of such issue or sale, then forthwith upon such issue or sale, the Exercise Price shall be reduced to the price determined as follows: by multiplying the then existing Exercise Price by a fraction (A) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered would purchase at the current Market Price and (b) the denominator of which shall be the number of shares of Common Stock Deemed Outstanding plus the number of additional shares of Common Stock to be offered for issue or sale. (c) Additional Adjustments. For the purposes of subsection (b) of this Section, the following clauses shall also be applicable: (i) Issuance of Rights or Options. If at any time the Company shall grant (whether directly or by assumption in a merger in which the Company is the surviving Company or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities") whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, and the price per share for which Common Stock is issuable upon the exercise of such rights or options or upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of the granting of such rights or options, then the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such rights or options shall (as of the date of granting of such rights or options) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 8(b). Except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock or of such Convertible Securities upon exercise of such rights or options or upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities. For the purposes of this clause (i), the price per share for which Common Stock is issuable upon the exercise of any such rights or options or upon conversion or exchange of any such Convertible Securities shall be determined by dividing (A) the total amount, if any, received or receivable by the Company as consideration for the granting of such rights or options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such rights or options, plus, in the case of such rights or options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of such Convertible Securities and upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such rights or options or upon conversion or exchange of all such Convertible Securities issuable upon the exercise of such rights or options. (ii) Issuance of Convertible Securities. If the Company shall issue (whether directly or by assumption in a merger in which the Company is the surviving corporation or otherwise) or sell any Convertible Security, whether or not the rights to exchange or convert thereunder are immediately exercisable, and the price per share for which Common Stock is issuable upon conversion or exchange of such Convertible Securities (determined as provided below) shall be less than the Market Price in effect immediately prior to the time of such issue or sale, then the total maximum number of shares of Common Stock issuable upon conversion or exchange of all such Convertible Securities shall (as of the date of the issue or sale of such Convertible Securities) be deemed to have been issued for such price per share, and the Exercise Price shall be adjusted in accordance with Section 8(b), provided that (A) except as provided in clause (iii) of this subsection, no further adjustments of any Exercise Price shall be made upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities, and (B) if any such issue or sale of such Convertible Securities is made upon exercise of any rights to subscribe for or to purchase or any option to purchase any such Convertible Securities for which adjustments of any Exercise Price have been or are to be made pursuant to other provisions of this subsection (c), no further adjustment of any Exercise Price shall be made by reason of such issue or sale. For the purposes of this clause (ii), the price per share for which Common Stock is issuable upon conversion or exchange of Convertible Securities shall be determined by dividing (C) the total amount, if any, received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (D) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. (iii) Readjustments. If the purchase price provided for in any rights or options referred to in clause (i) above, or the additional consideration, if any, payable upon the conversion or exchange of Convertible Securities referred to in clause (i) or (ii) above, or the rate at which any Convertible Securities referred to in clause (i) or (ii) above are convertible into or exchangeable for Common Stock, shall be reduced, then the Exercise Price in effect at the time of such event shall forthwith be readjusted to the Exercise Price which would have been in effect at such time had such rights, options or Convertible Securities then outstanding provided for such reduced purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold. On the expiration of any such option or right or the termination of any such right to convert or exchange such Convertible Securities, the Exercise Price and number of Warrant Shares issuable pursuant hereto then in effect shall be readjusted to the Exercise Price and number of Warrant Shares which would have been in effect at the time of such expiration or termination had such warrant, right, option or Convertible Security never been issued, and the shares of Common Stock issuable thereunder shall no longer be Common Stock Deemed Outstanding. (iv) Consideration for Stock. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Company therefor, without deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If any shares of Common Stock or Convertible Securities or any rights or options to purchase any such Common Stock or Convertible Securities shall be issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company shall be deemed to be the fair value of such consideration as determined reasonably and in good faith by the board of directors of the Company, without deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. If the Company shall declare or pay a dividend or make any other distribution upon any stock of the Company payable in Common Stock, Convertible Securities or options, warrants or rights to purchase Common Stock or Convertible Securities, the securities issuable in payment of such dividend or distribution shall be deemed to have been issued or sold without consideration. If any shares of Common Stock or Convertible Securities or any rights or options to purchase such shares of Common Stock or Convertible Securities shall be issued in connection with any merger or consolidation in which the Company is the surviving corporation (other than any consolidation or merger in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another corporation), the amount of consideration therefor shall be deemed to be the fair value as determined reasonably and in good faith by the board of directors of the Company or such portion of the assets and business of the non-surviving corporation as such board may reasonably and in good faith determine to be attributable to such shares of Common Stock, Convertible Securities, rights or options, as the case may be. In the event of any consolidation or merger of the Company in which the Company is not the surviving corporation or in which the previously outstanding shares of Common Stock of the Company shall be changed into or exchanged for the stock or other securities of another entity or in the event of any sale of all or substantially all of the assets of the Company for stock or other securities of any entity, the Company shall be deemed to have issued a number of shares of its Common Stock for stock or securities or other property of such entity computed on the basis of the actual exchange ratio on which the transaction was predicated and for a consideration equal to the fair market value on the date of such transaction of all such stock or securities or other property of such entity, and if any such calculation results in adjustment of the Exercise Price in accordance with Section 8(b), the determination of the number of shares of Common Stock issuable upon exercise of the Warrants immediately prior to such merger, consolidation or sale, for purposes of Section 8(e), shall be made after giving effect to such adjustment of the Exercise Price. (v) Record Date. If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock or in Convertible Securities or (B) to rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right, as the case may be. (vi) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock for the purposes of this Section 8. (d) Subdivision or Combination of Stock. If the Company shall at any time subdivide (whether by stock split, stock dividend, recapitalization or otherwise) the outstanding shares of Common Stock into a greater number of shares or pay a dividend or make a distribution to holders of Common Stock in the form of Common Stock, the Exercise Price in effect immediately prior to such subdivision, payment or distribution shall be proportionately reduced; conversely, if the outstanding shares of Common Stock shall be combined into a smaller number of shares (whether by reverse stock split or otherwise), the Exercise Price in effect immediately prior to such combination shall be proportionately increased. (e) Adjustments for Consolidation, Merger, Sale of Assets, Reorganization, etc. If the Company (i) consolidates with or merges into any other entity and is not the continuing or surviving corporation of such consolidation or merger, or (ii) permits any other entity to consolidate with or merge into the Company and the Company is the continuing or surviving corporation but, in connection with such consolidation or merger, the Common Stock is changed into or exchanged for stock or other securities of any other corporation or cash or any other assets, or (iii) transfers all or substantially all of its properties and assets to any other entity, or (iv) effects a recapitalization, capital reorganization or reclassification of the capital stock of the Company in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Stock (each of the transactions referred to in the foregoing clauses (i) through (iv) being an "Organic Change"), then, and in each such case, proper provision shall be made in form and substance reasonably satisfactory to the Holders so that, upon the basis and upon the terms and in the manner provided in this subsection (f), the holder of this Warrant Certificate, upon the exercise of each Warrant at any time after the consummation of such Organic Change, shall be entitled to receive (at the aggregate Exercise Price in effect for all Warrant Shares issuable upon such exercise immediately prior to such consummation as adjusted to the time of such transaction), in lieu of shares of Common Stock issuable upon such exercise prior to such consummation, the stock and other securities, cash and assets to which such holder would have been entitled upon such consummation if such holder had so exercised such Warrant immediately prior thereto (subject to adjustments subsequent to such corporate action as nearly equivalent as possible to the adjustments provided for in this Section 8). (f) Notice of Adjustment. Upon any adjustment of any Exercise Price, then and in each such case the Company or the Warrant Agent (at the expense of the Company), shall promptly deliver a notice to the registered holder of the Warrants, which notice shall state the Market Price, if any adjustment depends upon a determination of Market Price, and the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of each Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. (g) Other Notices. In case at any time: (i) the Company shall declare any cash dividend on its Common Stock; (ii) the Company shall pay any dividend payable in stock upon its Common Stock or make any distribution (other than regular cash dividends) to the holders of its Common Stock; (iii) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or other rights; (iv) the Company shall authorize to all holders of its Common Stock the distribution of evidence of its indebtedness or assets (other than cash dividends or cash distributions payable out of earnings or earned surplus or dividends payable in Common Stock); (v) there shall be any Organic Change; (vi) there shall be a voluntary or involuntary dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, or winding up of the Company; or (vii) the Company proposes to take any other action or an event occurs which would require an adjustment of the Exercise Price pursuant to subsection (j) of this Section 8; then, in any one or more of said cases, the Company or the Warrant Agent (upon receiving written notice from the Company) shall give written notice, addressed to the holder of each Warrant Certificate at the address of such holder as shown on the books of the Company, of (1) the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights, or (2) the date (or, if not then known, a reasonable approximation thereof by the Company) on which such Organic Change or other action or event, as the case may be, shall take place (or, in the case of clause (vi) above, the date on which the relevant action or event took place). Such notice shall also specify (or, if not then known, reasonably approximate) the date as of which the holders of Common Stock of record shall participate in such dividends, distribution or subscription rights, or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Organic Change, dissolution, liquidation, bankruptcy, assignment for the benefit of creditors, winding up, or other action or event, as the case may be. Such written notice shall be given at least twenty days prior to the action in question and not less than twenty days prior to the record date or the date on which the Company's transfer books are closed in respect thereto; provided, that no advance notice need be given of any event or action specified in clause (vi) above, but the Company or the Warrant Agent shall give notice of such event as promptly thereafter as practicable. The Company shall be solely responsible for the payment of all costs and expenses associated with the provision of any notices referenced herein. (h) Certain Events. If any event occurs of the type contemplated by the provisions of this Section 8 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company shall appoint a firm of independent certified public accountants (which may be the regular auditors of the Company) of recognized national standing, which shall give their opinion upon the adjustment, if any, on a basis consistent with the basic intent and principles established in the other provisions of this Section 8, necessary to preserve, without dilution, the exercise rights of the registered holders of the Warrant Certificates. Upon receipt of such opinion, the Company shall forthwith make the adjustments described therein. (i) Certain Exceptions to Antidilution Protection. Notwithstanding anything to the contrary in this Section 8, there shall be no adjustment to the Exercise Price or to the number of Warrant Shares issuable upon exercise of the Warrants: (i) in connection with the sale or issuance of the Warrant Certificates and Warrant Shares hereunder; (ii) upon any issuance or exercise of the Other Warrants in accordance with the terms thereof in effect on the Original Issuance Date and all warrants issued upon the partial exercise, transfer or division of, or in substitution for, any such warrants, or any adjustment to the number of shares issuable under the Other Warrants pursuant to the terms thereof as in effect on the Original Issuance Date; (iii) upon exercise of any Convertible Security outstanding on the Original Issuance Date; (iv) upon exercise of any options under the Management Option Plan; or (v) upon the issuance of any other securities as contemplated by the Plan, including the new Series A Senior Preferred Stock or the new Common Stock (each as described therein). (j) Other Securities. If at any time, as a result of an adjustment made pursuant to this Section 8, any holder of Warrants shall become entitled to purchase any securities of the Company other than shares of Common Stock, the number or amount of such other securities so purchasable and the consideration for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 8 hereof. Section 9. No Stock Rights. No holder of any Warrant Certificate, as such, shall be entitled to vote or be deemed the holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise thereof, nor shall anything contained herein be construed to confer upon the Holder of any Warrant Certificate, as such, the rights of a stockholder of the Company or the right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or give or withhold consent to any corporate action or to receive notice of meetings or other actions affecting stockholders (except as provided herein), or to receive dividends (except as provided herein) or subscription rights or otherwise, until the Date of Exercise of the Warrants shall have occurred. Section 10. Fractional Shares. The Company may, but shall not be required to, issue fractions of Warrant Shares upon exercise of the Warrants or distribute certificates which evidence fractional Warrant Shares. As to any fractional share of Common Stock which the Holder would otherwise be entitled to subscribe for from the Company upon such exercise, the Company may purchase from the Holder such unissued fractional share at a price equal to an amount calculated by multiplying such fractional share (calculated to the nearest 1/100th of a share) by the then-Market Price determined in accordance with the terms of this Agreement. Payment of such amount shall be made in cash or by check payable to the order of the Holder at the time of delivery of any certificate or certificates arising upon such exercise. Section 11. No Registration under Securities Act. Neither the Warrants nor the Warrant Shares have been registered under the Securities Act, but they have been issued pursuant to a valid exemption from the Securities Act pursuant to Section 1145 of the Bankruptcy Code. The Holder of each Warrant Certificate, by acceptance thereof, represents that it is acquiring the Warrants to be issued to it for its own account and not with a view to the distribution thereof, and agrees not to sell, transfer, pledge or hypothecate any Warrants or any Warrant Shares unless a registration statement is effective for such Warrants or Warrant Shares under the Securities Act or in the opinion of such holder's counsel (a copy of which opinion shall be delivered to the Company) such transaction is exempt from the registration requirements of the Securities Act; provided that Warrants and Warrant Shares issued to such Holder may be transferred to any Affiliate of such Holder, without any such registration (to the extent permitted by law) or opinion, subject to the foregoing restriction on any further sale, transfer, pledge or hypothecation by such Affiliate. Section 12. Payment for Services. The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Warrant Agent, its reasonable expenses and counsel fees and disbursements and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties hereunder. Section 13. Indemnification. Except as set forth in the following paragraph, the Warrant Agent and its affiliates, members, officers, directors, employees, agents, attorneys, successors and assigns (each, an "Indemnified Party") shall be indemnified and held harmless by the Company for and against any and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including, without limitation, reasonable attorneys' and consultants' fees and expenses) suffered or incurred by them, arising out of or resulting from any of the services provided under this Agreement. The obligations of the Company under this section shall survive any termination of this Agreement and the resignation or removal of the Warrant Agent. Section 14. Limitation of Liability. The Warrant Agent shall be obligated only for the performance of such duties as are specifically set forth herein. The Warrant Agent shall have no liability or obligation under this Agreement except for the Warrant Agent's gross negligence or willful misconduct. The Warrant Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein. The Warrant Agent may rely upon any instrument, whether bearing original, conformed or facsimile signatures, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein which the Warrant Agent shall in good faith believe to be genuine and to have been signed or presented by the person or parties purporting to sign the same. In no event shall the Warrant Agent be liable for incidental, indirect, special, consequential or punitive damages. Section 15.Certain Definitions. The following terms have the meanings set forth below: "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. "Business Day" means any day, other than a Saturday, Sunday or any other day on which banks are required or authorized to close in the State of Illinois or the State of Indiana. "Common Stock" is defined in the second paragraph hereof. "Common Stock Deemed Outstanding" means, at any given time, (x) the number of shares of Common Stock actually outstanding at such time, plus (y) the number of shares of Common Stock issuable pursuant to any outstanding Convertible Securities, or rights or options to purchase Common Stock or Convertible Securities but only to the extent such Convertible Securities, rights or options are In the Money at such time. "Company" is defined in the first paragraph hereof. "Convertible Securities" is defined in Section 8(c)(i). "Date of Exercise" is defined in Section 4(c). "Exercise Period" is defined in the second paragraph hereof. "Exercise Price" is defined in the second paragraph hereof. "Holder" is defined in the third paragraph hereof. "In the Money" means, as to any Convertible Securities or rights or options to purchase Common Stock or Convertible Securities at any time, that such Convertible Securities, rights or options have a conversion price, exercise price or similar price per share of Common Stock that is less than the Market Price as of the date of determination. "Management Option Plan" shall mean that certain management option plan to be entered into on the Original Issuance Date. "Market Price" shall mean the average of the daily closing prices per share of the Common Stock for the ten consecutive trading days immediately preceding the day as of which "Market Price" is being determined (exclusive of "ex-dividend" and similar dates) provided, however, that (i) Market Price shall be the closing price per share of the Common Stock of the Company on the date of issuance with respect to the issuance of options to purchase Common Stock of the Company issued to directors, officers or employees of the Company and (ii) Market Price shall be the closing price per share of the Common Stock of the Company on the date the underwriting agreement is executed with respect to any bona fide underwritten public offering of the Common Stock of the Company involving net cash proceeds to the Company of at least $1,000,000. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the principal national securities exchange on which the shares are listed or admitted to trading, or if the shares are not so listed or admitted to trading, on the National Market System of NASDAQ or, if prices for the shares are not quoted on such National Market System, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through NASDAQ or through a similar organization if NASDAQ is no longer reporting such information. If shares of the Common Stock are not listed or admitted to trading on any exchange or quoted through NASDAQ or any similar organization, the "Market Price" shall be deemed to be the higher of (x) the book value of a share of the Common Stock as determined by any firm of independent certified public accountants of recognized national standing, selected by the board of directors of the Company, as at the last day of any month ending within sixty days preceding the date as of which the determination is to be made and (y) the fair value thereof determined in good faith by a nationally recognized independent investment banking firm selected by the Company and reasonably acceptable to the holders of a majority of the Warrants as of a date which is within 30 days of the date as of which the determination is to be made (the fees and expenses of such independent certified public accountants and independent investment banking firm to be paid by the Company); provided, however, that in the case of any determination of Market Price pursuant to this sentence, the Market Price shall not be less than the amount of the consideration per share received by the Company in respect of the most recent sale, transfer or other issuance of Common Stock by the Company (other than as a result of the exercise of any option or warrant or the conversion of any Convertible Security) in an arms' length transaction to an unaffiliated third party within the 90-day period immediately preceding the date as to which the determination is to be made. Anything herein to the contrary notwithstanding, if the Company shall issue any shares of Common Stock or Convertible Securities or rights or options to purchase Common Stock or Convertible Securities in connection with the acquisition by the Company of the stock or assets of any other corporation or the merger of any other corporation into the Company, the Market Price shall be determined in the manner described in this definition as of the date the number of shares of Common Stock, Convertible Securities (or in the case of Convertible Securities other than stock, the aggregate principal amount of Convertible Securities), rights or options was determined (as set forth in a written agreement between the Company and the other party to the transaction) rather than on the date of issuance of such shares of Common Stock, Convertible Securities, rights or options. "Organic Change" is defined in Section 8(e). "Original Issuance Date" means October 20, 2000. "Other Warrants" shall mean (i) the 5 year Warrants to purchase 678,334 shares at an exercise price of $0.01 per share, and (ii) the 5 year Warrants to purchase 555,556 shares at an exercise price of $30.00 per share, in each case as contemplated by the Plan. "Person" means an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Plan" shall mean the Joint Prepackaged Plan of Reorganization of Tokheim Corporation and its subsidiary debtors as filed with and approved by the United States Bankruptcy Court for the District of Delaware. "Securities Act" means the Securities Act of 1933, as amended. "Warrant" is defined in the second paragraph hereof. "Warrant Agent" is defined in the first paragraph hereof. "Warrant Certificate" is defined in the third paragraph hereof. "Warrant Share" means the Common Stock issuable upon the exercise of the Warrants. Section 16.Miscellaneous. (a) Governing Law. This Agreement shall be governed in all respects by the internal laws of the State of Indiana. (b) Entire Agreement. This Agreement, together with the Warrant Certificates, constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. (c) Amendment. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates. No other changes may be made to this Agreement without the consent of the Holder. (d) Notices, etc. Each notice, demand, request, request for approval, consent, approval, disapproval, designation or other communication (each of the foregoing being referred to herein as a notice) required or desired to be given or made under this Agreement shall be in writing (except as otherwise provided in this Agreement), and shall be effective and deemed to have been received when delivered in person, when sent by fax with receipt acknowledged, five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or the next Business Day after having been sent by a nationally recognized overnight mail or courier service, receipt requested. Notices shall be addressed as follows: (x) if to any Holder, at such address or fax number as such Holder shall have furnished the Company in writing, or (y) if to the Company, at the address or fax number of its principal executive offices set forth below its signature hereon or at such other address or fax number as the Company shall have furnished to the Holders. Any notice or other communication required to be given hereunder to a Holder in connection with a registration may instead be given to the designated representative of such Holder. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which may be executed by fewer than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. (g) Captions. Captions are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. (h) Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. Whether or not any express assignment has been made in this Agreement, the provisions of this Agreement that are for the Holders of Warrant Certificates are also for the benefit of, and shall be enforceable by, all subsequent holders of Warrant Certificates. The acceptance of the Warrant Certificate by the Holder shall be deemed an acceptance of the terms and conditions of the Warrant Agreement. (i) Remedies. The Company and the Holders acknowledge that there would be no adequate remedy at law if any Person fails to perform any of its obligations hereunder, and accordingly agree that the Company and each Holder, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of another party under this Agreement in accordance with the terms and conditions of this Agreement in any court of the United States or any State thereof having jurisdiction. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. TOKHEIM CORPORATION By: ------------------------------------- Name: Title: 10501 Corporate Drive Fort Wayne, Indiana 46845 Attention: Chief Financial Officer Facsimile: (219) 484-1110 COMPUTERSHARE INVESTOR SERVICES, LLC By: ------------------------------------- Name: Title: Two North LaSalle Street Chicago, IL 60602 Attention: ------------------------------ Facsimile: ------------------------------ EXHIBIT A [FORM OF FACE OF WARRANT CERTIFICATE] WARRANT NO. _____ NUMBER OF WARRANT(S): _____ TOKHEIM CORPORATION SERIES C WARRANT CERTIFICATE Dated as of October [o], 2000 Series C Warrants to Purchase Common Stock This certifies that ____________ or registered assigns (the "Holder"), is the registered owner of the number of warrants set forth above (the "Warrants"), each of which represents the right, at any time after ________________ (the "Original Issuance Date") and on or before 5:00 p.m., Chicago, Illinois time, on ______________ (the "Exercise Period"), to purchase from Tokheim Corporation, an Indiana corporation (the "Company"), at the price per share of $_____ (the "Exercise Price") or by the cashless exercise provisions of Section 4(d) of the Warrant Agreement (as defined below), 0.04326865 share of Common Stock, no par value, of the Company as such stock was constituted as of the Original Issuance Date, subject to adjustment as provided in the Warrant Agreement hereinafter referred to, upon surrender hereof, with the subscription form on the reverse hereof duly executed, by hand or by mail to the Company, and simultaneous payment in full (by certified or official bank or bank cashier's check payable to the order of the Company, or by wire transfer of immediately available funds to an account designated by the Company) of the Exercise Price in respect of each Warrant represented by this Warrant Certificate that is so exercised, all subject to the terms and conditions hereof and of the Warrant Agreement. Upon any partial exercise of the Warrants represented by this Warrant Certificate, there shall be issued to the holder hereof a new Warrant Certificate representing the Warrants that were not exercised. No fractional shares are required to be issued upon the exercise of rights to purchase hereunder, and as to any fraction of a share otherwise issuable, the Company may make a cash payment in lieu of such issuance, as provided in the Warrant Agreement. This Warrant Certificate is issued under and in accordance with a Warrant Agreement, dated as of October [o], 2000 (the "Warrant Agreement"), between the Company and [o], as Warrant Agent, and is subject to the terms and provisions contained therein. The Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Company and the registered holders of the Warrants. The Holder of this Warrant Certificate consents to all terms and provisions of the Warrant Agreement by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Company and may be obtained by writing to the Company as described below. All notices, requests, demands and other communications relating to this Warrant Certificate shall be in writing, including by facsimile, addressed (a) if to the registered owner hereof, to it at the address furnished by the registered owner to the Company, (b) if to the Company, to it at 10501 Corporate Drive, Fort Wayne, Indiana 46845, facsimile no.: (219) 484-1110, Attention: Chief Financial Officer, or (c) if to the Warrant Agent, to it at [o], facsimile no.: [o], Attention: [o]; or to such other address as any party shall notify the other party in writing, and shall be effective, in the case of written notice by mail, three days after placement into the mails (first class, postage prepaid), and in the case of notice by facsimile, on the same day as receipt is confirmed. This Warrant Certificate shall be binding upon and inure to the sole and exclusive benefit of the Company, its successors and assigns, the registered Holder or Holders from time to time of the Warrants and the Warrant Shares. This Warrant Certificate shall be construed in accordance with and governed by the internal laws of the State of Indiana. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Dated: __________, 2000 TOKHEIM CORPORATION By: ------------------------------------- Name: Title: WARRANT AGENT By: ------------------------------------- Name: Title: [FORM OF REVERSE OF WARRANT CERTIFICATE] TOKHEIM CORPORATION The transfer of this Warrant Certificate and all rights hereunder is registrable by the registered holder hereof, in whole or in part, on the register of the Company upon surrender of this Warrant Certificate at the office or agency of the Company, duly endorsed or accompanied by a written instrument of transfer duly executed and in form satisfactory to the Company by the registered holder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer or registration thereof. Upon any partial transfer the Company will cause to be delivered to such holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. This Warrant Certificate may be exchanged at the office or agency of the Company for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the Holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the Holder of this Warrant Certificate, as such, shall not be entitled to any rights of a stockholder of the Company, including, but not limited to, the right to vote, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders, and shall not be entitled to receive notice of any proceedings of the Company except as provided in the Warrant Agreement. Nothing contained herein shall be construed as imposing any liabilities upon the Holder of this Warrant Certificate to purchase any securities or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors or stockholders of the Company or otherwise. This Warrant Certificate shall be void and all rights represented hereby shall cease unless exercised before the close of business on -----------------. Witness the facsimile seal of the Company and the signature of its duly authorized officer. FORM OF ELECTION TO PURCHASE (To be executed by the holder of Warrants if such holder desires to exercise Warrants evidenced by the foregoing Warrant Certificate) To Tokheim Corporation: The undersigned hereby irrevocably elects to exercise ____________ Warrants evidenced by the foregoing Warrant Certificate for, and to [purchase thereunder, _______________ shares of Common Stock issuable upon exercise of said Warrants and delivery of $___________ (in cash as provided for in the foregoing Warrant Certificate) and any applicable taxes payable by the undersigned pursuant to such Warrant Certificate.][receive, in accordance with Section 4(d) of the Warrant Agreement, ______ shares of Common Stock issuable upon exercise of said Warrants and delivery of any applicable taxes payable by the undersigned pursuant to such Warrant Agreement]. The undersigned requests that certificates for such shares be issued in the name of _______________________________. PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER - ---------------------------------- - ---------------------------------- - ---------------------------------- (Please print name and address) If said number of Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so exercised be issued in the name of and delivered to - ---------------------------------- - ---------------------------------- - ---------------------------------- (Please print name and address) Dated: , Name of holder of Warrant -------------- ----- (Print:) ----------------------------- (By:) ----------------------------- (Title:) ----------------------------- FORM OF ASSIGNMENT FOR VALUE RECEIVED, _________________________________ hereby sells, assigns and transfers to each assignee set forth below all of the rights of the undersigned in and to the number of Warrants (as defined in and evidenced by the foregoing Warrant Certificate) set opposite the name of such assignee below and in and to the foregoing Warrant Certificate with respect to said Warrants and the shares of Common Stock issuable upon exercise of said Warrants: Name of Assignee Address Number of Warrants - ---------------- ------- ------------------ If the total of said Warrants shall not be all the Warrants evidenced by the foregoing Warrant Certificate, the undersigned requests that a new Warrant Certificate evidencing the Warrants not so assigned be issued in the name of and delivered to the undersigned. Name of holder of Warrant (Print:) ------------------------ EX-4 8 0008.txt EXHIBIT 4.30 - REGISTRATION RIGHTS AGREEMENT Exhibit 4.30 REGISTRATION RIGHTS AGREEMENT among Tokheim Corporation and The Holders of Stock to Be Listed on Schedule 1 Dated: October 20, 2000 REGISTRATION RIGHTS AGREEMENT Registration Rights Agreement (the "Agreement") made and entered into as of October 20, 2000, among Tokheim Corporation, an Indiana corporation (the "Company") and the Affiliates set forth on Schedule 1 hereto (the "Holders"). This Agreement is made pursuant to the Joint Prepackaged Plan of Reorganization of the Company and its subsidiary debtors as filed with and approved by the United States Bankruptcy Court for the District of Delaware dated as of August 16, 2000 (the "Plan"). In connection with the Plan, the Company has agreed to register for sale by the Holders, the shares of Common Stock to be received by the Holders upon exercise of the Warrants. NOW THEREFORE, in consideration of the foregoing and to implement the terms of the Plan, the parties hereby agree as follows: SECTION 1. DEFINITIONS Except as otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Plan. The following terms, as used herein, have the following meanings (all terms defined herein in the singular to have the correlative meanings when used in the plural and vice versa): "Affiliate" means (i) when used with reference to any partnership, any Person that, directly or indirectly through one or more intermediaries, owns or controls 10% or more of either the capital or profit interests of such partnership or is a general partner of such partnership or is a Person in which such partnership has a 10% or greater direct or indirect equity interest and (ii) when used with reference to any corporation, any Person that, directly or indirectly owns or controls 10% or more of the outstanding voting securities of such corporation or is a Person in which such corporation has a 10% or greater direct or indirect equity interest. In addition, the term Affiliate, when used with reference to any Person, also means any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such Person. As used in the preceding sentence, (A) the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the entity referred to, whether through ownership of voting securities, by contract or otherwise, and (B) the terms "controlling" and "controls" shall have meanings correlative to the foregoing. "Agreement" means this Registration Rights Agreement, as the same may be amended, modified or supplemented from time to time. "Business Day" means any day other than (a) a Saturday or Sunday, (b) any day on which banking institutions located in Fort Wayne, Indiana are required or authorized by law or by local proclamation to close or (c) any day on which the New York Stock Exchange is closed. "Commercially Reasonable Efforts" when used with respect to any obligation to be performed or term or provision to be observed hereunder, means such efforts as a prudent Person seeking the benefits of such performance or action would make, use, apply or exercise to preserve, protect or advance its rights or interests, provided that such efforts do not require such Person to incur a material financial cost or a substantial risk of material liability unless such cost or liability (i) would customarily be incurred in the course of performance or observance of the relevant obligation, term or provision, (ii) is caused by or results from the wrongful act or negligence of the Person whose performance or observance is required hereunder or (iii) is not excessive or unreasonable in view of the rights or interests to be preserved, protected or advanced. Such efforts may include, without limitation, the expenditure of such funds and retention by such Person of such accountants, attorneys or other experts or advisors as may be necessary or appropriate to effect the relevant action; the undertaking of any special audit or internal investigation that may be necessary or appropriate to effect the relevant action; and the commencement, termination or settlement of any action, suit or proceeding involving such Person to the extent necessary or appropriate to effect the relevant action. "Common Stock" means the Common Stock of the Company, no par value per share. "Company" has the meaning ascribed to such term in the first paragraph. "Demand Registration" means any registration of Registrable Securities under the Securities Act effected in accordance with Section 2.1 hereof. "Effective Date" means the effective date of the Plan as provided for therein. "Holder" has the meaning ascribed to such term in the first paragraph. "Indemnified Party" has the meaning ascribed to such term in Section 2.6(a) hereof. "Loss" has the meaning ascribed to such term in Section 2.6(a) hereof. "Material Adverse Change" means (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States of America, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States of America, (iii) the commencement of a war, armed hostilities or other international or national calamity involving the United States of America, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which materially affects the extension of credit by banks or other financial institutions, (v) any material adverse change in the Company's business, condition (financial or otherwise) or prospects or (vi) a 15% or more decline in the Dow Jones Industrial Average or the Standard and Poor's Index of 500 Industrial Companies, in each case from the date a Notice of Demand is made. "Notice of Demand" means a request by Holders pursuant to Section 2.1 hereof that the Company effect the registration under the Securities Act of the Registrable Securities which specifies: (i) the intended method or methods and plan of disposition of the Registrable Securities and (ii) whether or not such requested registration is to be an underwritten offering. "Participating Holders" means, with respect to the Registration of Registrable Securities by the Company pursuant to this Agreement, the Requesting Holders and any other Holders that are entitled to participate in, and are participating in or seeking to participate in, such registration. "Person" means a natural person, a corporation, a partnership, a trust, a joint venture, any regulatory authority or any other entity or organization. "Piggyback Registration"means any registration of Registrable Securities under the Securities Act effected in accordance with Section 2.2 hereof. "Plan" has the meaning ascribed to such term in the second paragraph. "Registered Address" has the meaning set forth in Section 2.1(c) hereof. "Registrable Securities" means the Common Stock acquired by the Holders pursuant to the Plan or held by any Holder or any of the respective Successors or the permitted assigns of any Holder, including, without limitation, (a) any share of Common Stock issued or issuable on or after the Effective Date pursuant to the Plan, including the Common Stock to be issued pursuant to the exercise of the Series A Warrants, and (b) any securities issued or issuable with respect to Registrable Securities, whether by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise provided that, with respect to any permitted transferee of such securities, only such securities held by permitted transferees that have complied with the assignment requirements of Section 11 shall be deemed to be Registrable Securities. As to any particular Registrable Securities, once issued such securities will cease to be Registrable Securities when a registration statement with respect to the resale of such securities has become effective under the Securities Act and such securities shall have been disposed of in accordance with the plan of distribution set forth in such registration statement. "Registration Expenses" means all expenses incident to, and incurred in connection with, the Company's performance of or compliance with this Agreement, including, without limitation, (a) all registration, filing, securities exchange listing, rating agency and National Association of Securities Dealers, Inc. fees, (b) all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws of all jurisdictions in which the securities are to be registered and any legal fees and expenses reasonably incurred in connection with the blue sky qualifications of the Registrable Securities and the determination of their eligibility for investment under the laws of all such jurisdictions, (c) all word processing, duplicating, printing, messenger and delivery expenses, (d) the fees and disbursements of counsel for the Company and of its independent public accountants, including, without limitation, the expenses of any special audits or cold comfort letters required by or incident to such performance and compliance, (e) the reasonable fees and disbursements incurred by the Holders of the Registrable Securities being registered for one counsel or firm of counsel selected by the Requisite Holders of such Registrable Securities, (f) premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities being registered to the extent the Company elects to obtain such insurance, (g) any fees and disbursements of Securities Underwriters customarily paid by issuers or sellers of securities (but excluding underwriting discounts and commissions and transfer taxes, if any, relating to the Registrable Securities being registered) and (h) fees and expenses of other Persons retained or employed by the Company. "Registration Statement" means a registration statement filed under the Securities Act pursuant to Section 2.1 hereof in accordance with Section 2.3(a) hereof, including, at the request of a majority of the Requesting Holders, a Shelf Registration Statement, provided that such Requesting Holders may not request a Shelf Registration Statement to be filed prior to 90 days after the Effective Date. "Requesting Holder" means each party providing a Notice of Demand to the Company pursuant to Section 2.1(a). "Requisite Holders" means any Holder or Holders of a majority in interest of the Registrable Securities included or to be included in a registration or other relevant action, as the case may be. "Rule 144" means Rule 144 promulgated by the SEC under the Securities Act, and any successor provision thereto. "SEC" means the United States Securities and Exchange Commission, or any successor governmental agency or authority thereto. "Securities Act" means the Securities Act of 1933, as amended. "Securities Underwriter" means a nationally recognized investment banking institution that provides investment banking services of the type typically used in a registration. "Shelf Period" has the meaning ascribed to such term in Section 2.1(d) hereof. "Shelf Registration Statement" means a Registration Statement filed under Rule 415 under the Securities Act. "Successor" means, with respect to any Person, a successor to such Person by merger, consolidation, liquidation or other similar transaction. "Suspension Notice" has the meaning ascribed to such term in Section 2.3(e) hereof. "Suspension Period" has the meaning ascribed to it such term Section 2.3(e) hereof. "Underwriter" has the meaning ascribed to such term in Section 2 of the Securities Act. "Warrants" means, the Warrants issued by the Company in connection with the Plan, evidenced by the Warrant Agreements and the related Warrant Certificates to purchase shares of the Common Stock. "Warrant Agreements" means the Series A Warrant Agreements, the Series B Warrant Agreements and the Series C Warrant Agreements entered into by the Company in connection with the Plan. "Warrant Certificates" means the certificates evidencing issue of the Warrants, in the form of Exhibit A to the Warrant Agreements. SECTION 2. REGISTRATION UNDER THE SECURITIES ACT 2.1 DEMAND REGISTRATION (A) DEMAND FOR REGISTRATION. As soon as practicable following the Company's receipt of a Notice of Demand from two or more Holders holding at least 33% of the Registrable Securities (subject to appropriate adjustments in the case of stock splits, stock dividends and similar events), the Company shall prepare and file a Registration Statement covering the Registrable Securities that the Company has been requested to register (whether pursuant to the Notice of Demand or pursuant to notice provided under Section 2.1(c) hereof) and shall use Commercially Reasonable Efforts to cause the Registration Statement to become effective within one hundred eighty (180) days of its receipt of such Notice of Demand and to effect appropriate qualifications under applicable blue sky and other state securities laws and appropriate compliance with regulations under the Securities Act. The Holders are entitled to a maximum of two Demand Registrations under this Section 2.1 during the term of this Agreement; provided, however, that the Holders may not make a second demand for registration until twelve (12) months after the date on which the Registration Statement filed pursuant to the first demand for registration shall have been declared effective. (B) LIMITATIONS ON DEMAND REGISTRATION. In the event that the Requesting Holders determine for any reason (other than at the request or recommendation of the Company or the Securities Underwriter or after to the occurrence of a Material Adverse Change) not to proceed with a registration of Common Stock requested pursuant to this Section 2.1 at any time before the Registration Statement has been declared effective by the SEC, and such Registration Statement, if theretofore filed with the SEC, is withdrawn with respect to the Common Stock covered thereby, and such Holders reimburse the Company for all fees, costs and expenses in connection therewith, then the Holders shall not be deemed to have exercised their right to a Demand Registration pursuant to this Section 2.1 with respect to such withdrawn Registration Statement. If the Holders determine not to proceed with such a registration upon the request or recommendation of the Company or the Securities Underwriter or after the occurrence of a Material Adverse Change, the Holders will not be required to reimburse the Company for its fees, costs and expenses and the Holders shall not be deemed to have exercised their right to a Demand Registration pursuant to this Section 2.1 with respect to such registration. (C) NOTICE TO HOLDERS. Upon receipt of any Notice of Demand, the Company will give prompt notice (but in any event within fifteen (15) days after such receipt) to each Holder of Registrable Securities at the address provided to the Company in Schedule 1 or as otherwise furnished in writing to the Company for purposes of this Agreement (the "Registered Address") of the Notice of Demand and of the Holders' rights under this Section 2.1. Upon the written request of any such Holder made within twenty (20) days after the receipt by that Holder of the notice (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method or methods of disposition thereof) the Company shall use Commercially Reasonable Efforts to effect the registration under the Securities Act and any applicable state securities laws of all Registrable Securities which the Company has been so requested to register by the Holders thereof, to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of the Registrable Securities so to be registered. (D) CONTINUOUS EFFECTIVENESS OF REGISTRATION STATEMENTS. Once a Registration Statement is effective pursuant to Section 2.1(a) hereof, the Company shall use Commercially Reasonable Efforts to cause such Registration Statement to remain continuously effective (i) in the case of a Registration Statement other than a Shelf Registration Statement, until the earlier of (x) the two (2) month anniversary of the date such Registration Statement is declared effective by the SEC and (y) the date on which all of the Registrable Securities covered by such Registration Statement have been sold; and (ii) in the case of a Shelf Registration Statement, until the earlier of (x) one (1) year following the date such Shelf Registration Statement is declared effective by the SEC, (y) the date on which all of the Registrable Securities covered by such Shelf Registration Statement have been sold, and (z) the date on which in the reasonable written opinion of counsel to the Company on which the Participating Holders can rely, all of the Registrable Securities covered by the Shelf Registration Statement may be sold in accordance with Rule 144(k), but in no event (in either case) prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder (such period being defined as the "Effective Period" with respect to any such Registration Statement other than a Shelf Registration Statement and as the "Shelf Period" with respect to any such Shelf Registration Statement); provided, however, that (x) with respect to any Registration Statement the Company may suspend use of such Registration Statement at any time, for a period of not more than 120 days during any twelve (12) month period, if the continued effectiveness thereof would require the Company to disclose a material financing, acquisition or other corporate transaction, which disclosure the Company shall have determined in good faith is not in the best interests of the Company and its stockholders (provided the Effective Period or Shelf Period, as the case may be, shall be extended by the number of days of any such suspension) and (y) with respect to any Registration Statement the Company may suspend use of any such Registration Statement during any period if each of the Company and the Requisite Holders of the Registrable Securities covered by such Registration Statement consents in writing to such suspension for such period. (E) PRIORITY IN DEMAND REGISTRATIONS. If a registration pursuant to this Section 2.1 involves an underwritten offering and the managing Securities Underwriter of such underwritten offering advises the Company in writing (with a copy to each Participating Holder) of its belief that the amount of securities requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering within an acceptable price range to the Requesting Holders, then the amount of securities to be sold in such offering shall be reduced in accordance with the advice of such managing Securities Underwriter. In the case of any such reduction, then the Company shall include in such Demand Registration that amount of Registrable Securities that the Company is so advised can be sold in (or during the time of) the offering, as follows: first, such Registrable Securities requested to be included in such Registration Statement by any Participating Holder, pro rata on the basis of the amount of such securities held by such Participating Holder; and second, all other securities of the Company duly requested to be included in such Registration Statement. 2.2 PIGGYBACK REGISTRATION (A) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at any time proposes to register any of its equity securities under the Securities Act (other than by a registration on Form S-4 or Form S-8 or any successor or similar form then in effect and other than pursuant to Section 2.1 hereof) in a form and in a manner that would permit registration of the Registrable Securities, whether or not for sale for its own account, it will give prompt (but in no event less than 30 days prior to the proposed date of filing the registration statement relating to such registration) notice to all Holders of Registrable Securities of the Company's intention to do so and of such Holders' rights under this Section 2.2. Upon the written request of any such Holder made within twenty (20) days after the receipt by that Holder of the notice (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method or methods of disposition thereof), the Company shall use Commercially Reasonable Efforts to effect the registration under the Securities Act and any applicable state securities laws of all Registrable Securities which the Company has been so requested to register by the Holders thereof, to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any equity securities and prior to the effective date of the registration statement filed in connection with such registration, the Company determines for any reason not to register or to delay registration of the equity securities, the Company may, at its election, give notice of that determination to each such Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay all Registration Expenses in connection therewith as provided in Section 2.3(b) hereof), without prejudice, however, to the right of the Holders to request that such registration be effected as a Demand Registration in accordance with Section 2.1 hereof, and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other equity securities. No registration effected under this Section 2.2 will be deemed to have been effected pursuant to Section 2.1 hereof (except for any right to a Demand Registration which may be exercised pursuant to the last clause of subsection (i) of the preceding sentence) or will relieve the Company of its obligation to effect a Demand Registration in accordance with Section 2.1. hereof. (B) PRIORITY IN PIGGYBACK REGISTRATIONS. If a registration pursuant to this Section 2.2 involves an underwritten offering and the managing Securities Underwriter of such underwritten offering advises the Company in writing (with a copy to each Participating Holder) of its belief that the amount of securities requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering within an acceptable price range, then the Company will include in such registration that amount of securities which the Company is so advised can be sold in (or during the time of) the offering as follows: first, all securities proposed by the Company to be sold for its own account; second, such Registrable Securities requested to be included in such registration statement by any Participating Holder, pro rata on the basis of the amount of such securities held by such Participating Holder; and third, all other securities of the Company duly requested to be included in such registration statement. 2.3 REGISTRATION TERMS AND PROCEDURES (A) REGISTRATION STATEMENT FORM. Registrations under Section 2.1 hereof shall be on Form S-1 or Form S-3 (if use of such a form is then available to cover resales of the Registrable Securities) or such other appropriate form of the SEC as shall permit the sale, resale or other disposition of such Registrable Securities in accordance with the intended method or methods of disposition. (B) REGISTRATION EXPENSES. Subject to Section 2.3(f) hereof, the Company will pay all Registration Expenses incurred in connection with a registration to be effected (whether or not effected or deemed effected pursuant to subsection (c) below) pursuant to Sections 2.1 hereof or 2.2 hereof. (C) EFFECTIVENESS OF CERTAIN DEMAND REGISTRATIONS. A Demand Registration will not be deemed to have been effected under Section 2.1 hereof unless the Registration Statement with respect thereto has been declared effective by the SEC and, subject to Section 2.3(g)(ii) hereof, (i) in the case of a Registration Statement other than a Shelf Registration Statement, such Registration Statement remains effective until the earlier of (x) sixty (60) days of the date such Registration Statement is declared effective by the SEC and (y) the date on which all of the Registrable Securities covered by such Registration Statement have been sold; and (ii) in the case of a Shelf Registration Statement, such Shelf Registration Statement remains effective until the earlier of (x) one (1) year from its effective date (subject to extension as contemplated by Section 2.1(d) and the last sentence of Section 2.3(e)(ii) hereof), (y) the date on which all of the Registrable Securities covered by such Shelf Registration Statement have been sold, or (z) the date on which, in the reasonable opinion of counsel to the Company, all of the Registrable Securities covered by the Shelf Registration Statement may be sold in accordance with Rule 144(k) ; provided, however, in either case, that if (x) after such registration statement has been declared effective, the marketing of Registrable Securities offered pursuant to such registration statement is materially disrupted or adversely affected as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (for reasons other than a misrepresentation or omission by any Requesting Holder or any Participating Holder) or (y) the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration have not been satisfied (for reasons other than a wrongful or bad faith act, omission or misrepresentation by any Requesting Holder or any Participating Holder), such registration statement will be deemed not to have become effective. If a registration pursuant to Section 2.1 hereof is deemed not to have been effected hereunder, then the Company shall continue to be obligated to effect the remaining number of unused Demand Registrations in accordance with Section 2.1 hereof. (D) SELECTION OF UNDERWRITER. If, in connection with a registration effected pursuant to Section 2.1 hereof, the Requisite Holders so elect, the offering of Registrable Securities pursuant to Section 2.1 hereof shall be in the form of an underwritten offering. If the Requisite Holders so elect, they shall select one or more nationally recognized firms of investment bankers to act as the book-running managing Securities Underwriter or Underwriters in connection with such offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. (E) AGREEMENTS OF CERTAIN HOLDERS (i) Each Participating Holder shall furnish to the Company, in writing, such information regarding such Holder, the Registrable Securities held by such Holder and the intended plan of distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration. (ii) Each Participating Holder agrees, by acquisition of such Registrable Securities, that upon receipt of any notice (a "Suspension Notice") from the Company of the suspension of the use of a Shelf Registration Statement as contemplated by Section 2.1(d) or of the happening of any event of the kind described in clause (vi) of Section 2.3(g) hereof, such Holder will forthwith discontinue such Holder's disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by clause (vi) of Section 2.3(g) hereof or of a notice that such Holder may resume dispositions of Registrable Securities pursuant to the registration statement (the period from the date on which such Holder receives a Suspension Notice to the date on which such Holder receives copies of the supplemental or amended prospectus being herein called the "Suspension Period"). The Company shall take such actions as are necessary to end the Suspension Period as promptly as practicable, but in no event shall the Suspension Period be longer than 120 days. The applicable time period for effectiveness in Section 2.3(c) shall be extended by the number of days of a Suspension Period. (F) WITHDRAWAL. Any Holder participating in a registration pursuant to this Agreement shall be permitted to withdraw all or part of its Registrable Securities from such registration at any time prior to the effective date of the registration statement covering such securities; provided that, in the event of a withdrawal from a registration effected pursuant to Section 2.1 hereof, such registration shall be deemed to have been effected for purposes of the first sentence of Section 2.1(b) hereof except as otherwise provided in Section 2.1(b) hereof. (G) REGISTRATION PROCEDURES. In connection with the Company's obligations to register Registrable Securities pursuant to this Agreement, the Company will use Commercially Reasonable Efforts to effect such registration so as to permit the sale, resale or other disposition of any Registrable Securities included in such registration in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible: (i) prepare and (as soon thereafter as practicable) file with the SEC the requisite registration statement containing all information required thereby to effect such registration and thereafter use Commercially Reasonable Efforts to cause such registration statement to become and remain effective in accordance with the terms of this Agreement, provided that as far in advance as practicable before filing such registration statement or any amendment, supplement or exhibit thereto (but, with respect to the filing of such registration statement, in no event later than seven (7) days prior to such filing), the Company will furnish to the Participating Holders or their counsel copies of reasonably complete drafts of all such documents proposed to be filed (excluding exhibits, which shall be made available upon request by any Participating Holder), and any such Holder shall have the opportunity to object to any information contained therein and the Company will make the corrections reasonably requested by such Holder, in writing, with respect to information relating to such Holder or the plan of distribution of the Registrable Securities prior to filing any such registration statement, amendment, supplement or exhibit; (ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith (A) as reasonably requested by any Participating Holder, in writing, to which such registration statement relates (but only to the extent such request relates to information with respect to such Holder) and (B) as may be necessary to keep such registration statement effective (x) during the Effective Period in the case of a Registration Statement other than a Shelf Registration Statement and (y) during the Shelf Period in the case of a Shelf Registration Statement, and comply with the provisions of the Securities Act with respect to the sale, resale or other disposition of all securities covered by such registration statement during such period in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement; (iii) furnish to each Holder covered by, and each Securities Underwriter or agent participating in the disposition of securities under, such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case excluding all exhibits and documents incorporated by reference, which exhibits and documents shall be furnished to any such Person upon request), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act relating to such Holder's Registrable Securities, in conformity with the requirements of the Securities Act, and such other documents as such Holder, Securities Underwriter or agent may reasonably request to facilitate the disposition of such Registrable Securities; (iv) use Commercially Reasonable Efforts to register or qualify all Registrable Securities and other securities covered by such registration statement under all applicable blue sky and other securities laws, and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action which may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the securities owned by such Holder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any jurisdiction; (v) use Commercially Reasonable Efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities applicable to the Company as may be reasonably necessary to enable the seller or sellers thereof (or Securities Underwriter or agent, if any) to consummate the disposition of such Registrable Securities in accordance with the plan of distribution set forth in such registration statement; (vi) promptly notify each Participating Holder at its Registered Address and any Securities Underwriter or agent participating in the disposition of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event known to the Company as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and promptly prepare and furnish to such Holder (or Securities Underwriter or agent, if any) a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made; (vii) otherwise use Commercially Reasonable Efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable (but not more than fifteen (15) months) after the effective date of the registration statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder, and furnish to each Holder covered by such registration statement or any participating Securities Underwriter or agent a copy of any amendment or supplement to such registration statement or prospectus five (5) calendar days (or such shorter period as may be practicable under the circumstances) prior to the filing thereof with the SEC; (viii)provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement; (ix) use Commercially Reasonable Efforts to, on or prior to the effective date of such registration statement, list the Registrable Securities covered by such registration statement on any securities exchange on which the Registrable Securities are then listed; (x) cooperate with each Participating Holder and each Securities Underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.; (xi) use Commercially Reasonable Efforts to prevent the issuance by the SEC or any other governmental agency or court of a stop order, injunction or other order suspending the effectiveness of such registration statement and, if such an order is issued, use Commercially Reasonable Efforts to cause such order to be lifted as promptly as practicable; (xii) take such other actions as the Requisite Holders of such Registrable Securities shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities; (xiii)promptly notify each Participating Holder and each Securities Underwriter or agent, if any: (A) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective; (B) of any written comments from the SEC with respect to any filing referred to in clause (A) and of any written request by the SEC for amendments or supplements to such registration statement or prospectus; (C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to, or of the issuance by the SEC of, any stop order suspending the effectiveness of such registration statement; and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale, resale or other disposition under the applicable securities or blue sky laws of any jurisdiction; (xiv) cooperate with each Participating Holder and each Securities Underwriter or agent participating in the distribution of such Registrable Securities to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends, other than as required by applicable law) representing securities sold under a registration statement hereunder, and enable such securities to be in such denominations and registered in such names as such seller, Securities Underwriter or agent may request and keep available and make available to the Company's transfer agent, prior to the effectiveness of such registration statement, an adequate supply of such certificates; (xv) not later than the effective date of such registration statement, provide a CUSIP number for all Registrable Securities covered by a registration statement hereunder; (xvi) incorporate in the registration statement or any amendment, supplement or post-effective amendment thereto such information as each Participating Holder, each Securities Underwriter or agent (if any) or their respective counsel may reasonably request, in writing, to be included therein with respect to any Registrable Securities being sold by such Holder to such Securities Underwriter or agent, the purchase price being paid therefor by such Securities Underwriter or agent and any other terms of the offering of such Registrable Securities; (xvii)during any period when a prospectus is required to be delivered under the Securities Act, make timely periodic filings with the SEC pursuant to and containing the information required by the Exchange Act (whether or not the Company is required to make such filings pursuant to such Act); and (xviii) in connection with an underwritten offering, participate, to the extent reasonably requested by the Requisite Holders of the securities included in the offering or the managing Securities Underwriter for the offering, in customary efforts to sell the securities under the offering. 2.4 UNDERWRITTEN OFFERINGS (A) UNDERWRITTEN OFFERINGS IN CONNECTION WITH A DEMAND REGISTRATION. If requested by the Securities Underwriters for any underwritten offering in connection with a registration pursuant to Section 2.1 hereof, the Company will enter into an underwriting agreement with such Securities Underwriters for such offering, such agreement (i) to be satisfactory in substance and form to the Company and to the Requisite Holders, and (ii) to contain such representations and warranties by the Company and the Participating Holders and such other terms as are generally prevailing in agreements of such type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.6 hereof. Each Holder (so long as it or any of its Affiliates holds Registrable Securities to be included in such registration) shall be a party to such underwriting agreement and may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Securities Underwriters, also be made to and for its benefit and that any or all of the conditions precedent to the obligations of such Securities Underwriters under such underwriting agreement be conditions precedent to its obligations thereunder. (B) UNDERWRITTEN OFFERINGS IN CONNECTION WITH PIGGYBACK REGISTRATIONS. If the Company at any time proposes to register any of its equity securities under the Securities Act as contemplated by Section 2.2 hereof and such securities are to be distributed by or through one or more Securities Underwriters, the Company will, if requested by any Participating Holder and subject to Section 2.2(b) hereof, arrange for such Securities Underwriters to include Registrable Securities to be offered and sold by such Holder or Holders among the securities to be distributed by such Securities Underwriters. The Participating Holders shall be parties to the underwriting agreement between the Company and such Securities Underwriters, such agreement (i) to be satisfactory in substance and form to the Company and to the Requisite Holders, and (ii) to contain such representations and warranties by the Company and the Participating Holders and such other terms as are generally prevailing in agreements of such type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.6 hereof. Each Holder of the Registrable Securities included in such offering may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Securities Underwriters, also be made to and for its benefit and that any or all of the conditions precedent to the obligations of such Securities Underwriters under such underwriting agreement be conditions precedent to its obligations thereunder. 2.5 PREPARATION; REASONABLE INVESTIGATION. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give Participating Holders, their Securities Underwriters or agents, if any, and their respective counsel and accountants, reasonable access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such Holders' and such Securities Underwriters' or agents' respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. 2.6 INDEMNIFICATION (A) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and hold harmless, to the full extent permitted by law, each Participating Holder, its directors, members, officers, shareholders, general or limited partners, employees, investment advisers, agents and Affiliates, either direct or indirect (and each such Affiliate's directors, members, officers, shareholders, general or limited partners, employees, investment advisers and agents), and each other Person, if any, who controls such Persons within the meaning of the Securities Act (each such Person, an "Indemnified Party"), from and against any losses, claims, damages, liabilities or expenses, joint or several (each a "Loss" and collectively, "Losses"), to which such Indemnified Party may become subject under the Securities Act or otherwise, to the extent that such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act (including all documents incorporated therein by reference), any preliminary prospectus, final prospectus or summary prospectus contained therein, any offering circular or other documents, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such Indemnified Party for any legal or any other expenses reasonably incurred by it in connection with investigating or defending against any such Loss, action or proceeding; provided that in any such case the Company shall not be liable to any particular Indemnified Party to the extent that such Loss (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, any offering circular or other document, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Indemnified Party specifically for inclusion therein; and provided, further, that the Company shall not be liable in any such case to the extent it is finally determined by a court of competent jurisdiction that any such Loss (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made: (i) in any such preliminary prospectus, if (A) it was the responsibility of such Indemnified Party, as an underwriter, to provide the Person asserting such Loss with a current copy of the final prospectus or summary prospectus contained therein and such Indemnified Party failed to deliver or cause to be delivered a copy of the final prospectus or summary prospectus contained therein to such Person after the Company had furnished such Indemnified Party with a sufficient number of copies of the same prior to the sale of Registrable Securities to the Person asserting such Loss and (B) the final prospectus or summary prospectus contained therein corrected such untrue statement or omission; or (ii) in such final prospectus or summary prospectus contained therein, if such untrue statement or omission is corrected in an amendment or supplement to such final prospectus or summary prospectus contained therein and such amendment or supplement has been delivered to the Indemnified Party prior to the sale of Registrable Securities to the Person asserting such Loss and the Indemnified Party, as an underwriter, thereafter fails to deliver the final prospectus or summary prospectus contained therein as so amended or supplemented prior to or concurrently with such sale after the Company had furnished such Indemnified Party (in accordance with the notice provisions contained in Section 10 for Persons who are parties to this Agreement) with a sufficient number of copies of the same for delivery to purchasers of securities. Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of such securities by such Indemnified Party. The Company shall also indemnify each other Person who participates (including as an Securities Underwriter) in the offering or sale of Registrable Securities hereunder, their officers and directors and each other Person, if any, who controls any such participating Person within the meaning of the Securities Act to the same extent as provided above with respect to Indemnified Parties. (B) INDEMNIFICATION BY THE SELLERS. The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Sections 2.1 or 2.2 hereof and as a condition to indemnifying such sellers pursuant to this Section 2.6, that the Company shall have received an undertaking reasonably satisfactory to it from each Participating Holder included in any such offering regarding its agreement to indemnify and hold harmless and reimburse (in the same manner and to the same extent as set forth in paragraph (a) of this Section 2.6) the Company, each director, officer, employee and agent of the Company, and each other Person, if any, who controls the Company within the meaning of the Securities Act, from and against any Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement pursuant to which securities of such Holder are registered under the Securities Act (including all documents incorporated therein by reference), any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission from such registration statement, preliminary prospectus, final prospectus or summary prospectus, or any amendment or supplement thereto required to be stated therein or necessary to make the statements therein not misleading, if (but only if) such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Participating Holder specifically for inclusion and use therein; provided, however, that such Participating Holder shall not be obligated to provide such indemnity to the extent that such Losses result, directly or indirectly, from the failure of the Company to promptly amend or take action to correct or supplement or to deliver timely any such registration statement, prospectus, amendment or supplement based on corrected or supplemental information provided in writing by such Participating Holder to the Company expressly for such purpose; and provided further, that the obligation to provide indemnification pursuant to this Section 2.6(b) shall be several, and not joint and several, among such indemnifying parties. Notwithstanding anything in this Section 2.6(b) to the contrary, in no event shall the liability of any Participating Holder under such indemnity be greater in amount than the amount of the proceeds received by such Participating Holder upon the sale of its Registrable Securities in the offering to which the Losses relate. Such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer, employee, agent or participating or controlling Person and shall survive the transfer of such securities by such Participating Holder. (C) NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified Party of notice of the commencement of any action or proceeding involving a claim referred to in paragraph (a) or (b) of this Section 2.6, such Indemnified Party will, if a claim in respect thereof is to be made against an indemnifying party, give prompt written notice to the latter of the commencement of such action, provided that the failure of any Indemnified Party to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Section 2.6, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such action is brought against an Indemnified Party, the indemnifying party shall be entitled to participate in and to assume the defense thereof (such assumption to constitute its acknowledgment of its agreement to indemnify the Indemnified Party with respect to such matters), jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof, and for so long as it continues to assume the defense thereof, the indemnifying party shall not be liable to such Indemnified Party for any legal fees or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if, in such Indemnified Party's reasonable judgment, a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, such Indemnified Party shall be entitled to separate counsel reasonably satisfactory to the indemnifying party at the expense of the indemnifying party; and provided, further, that, unless there exists a conflict of interest among indemnified parties, all indemnified parties in respect of such claim shall be entitled to only one counsel or firm of counsel for all such indemnified parties. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such Indemnified Party a conflict of interest exists between such Indemnified Party and any other of such indemnified parties in respect of such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of one additional counsel or firm of counsel for such indemnified parties. No indemnifying party shall, without the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement that (i) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all Losses in respect of such claim or litigation or (ii) would impose injunctive relief on such Indemnified Party. No indemnifying party shall be subject to any Losses for any settlement made without its consent, which consent shall not be unreasonably withheld. (D) OTHER INDEMNIFICATION. The provisions of this Section 2.6 shall be in addition to any other rights to indemnification or contribution which an Indemnified Party may have pursuant to law, equity, contract or otherwise. (E) INDEMNIFICATION PAYMENTS. The indemnification required by this Section 2.6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, promptly as and when bills are received or Losses are incurred. (F) CONTRIBUTION. If for any reason the foregoing indemnity and reimbursement is unavailable or is insufficient to hold harmless an Indemnified Party under paragraph (a) or (b) of this Section 2.6, then each indemnifying party shall contribute to the amount paid or payable by such Indemnified Party as a result of any Loss (or actions or proceedings, whether commenced or threatened, in respect thereof), including, without limitation, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss, action or proceeding, in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the Indemnified Party on the other. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. Notwithstanding anything in this Section 2.6(f) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 2.6(f) to contribute any amount in excess of the amount by which the net proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the Losses of the indemnified parties relate exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of such untrue statement or omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. SECTION 3. RULE 144 (a) The Company will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC thereunder and will take such further action as any Holder may reasonably request, to the extent required from time to time to enable the Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder, the Company will deliver to that Holder a written statement as to whether it has complied with such requirements, a copy of the most recent annual or quarterly report of the Company, and such other reports or documents so filed as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder to sell any such securities without registration. (b) If at any time the Company is not required to file reports in compliance with either Section 13 or Section 15(d) of the Exchange Act, the Company at its expense will, forthwith upon the request of any Holder make available adequate current public information with respect to the Company within the meaning of paragraph (c)(2) of Rule 144. SECTION 4. TERM This Agreement shall enter into force on the date hereof and shall continue in full force and effect, subject to Section 16 hereof, until the sixth anniversary of the date hereof. SECTION 5. AMENDMENTS AND WAIVERS This Agreement may be amended, supplemented or modified only by a writing (which makes reference to this Agreement) executed by the Company and Holders holding at least fifty percent (50%) of the Registrable Securities then held by all the Holders. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same term or condition of this Agreement on any future occasion. SECTION 6. ENTIRE AGREEMENT This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof. SECTION 7. NO THIRD-PARTY BENEFICIARY The terms and provisions of this Agreement are intended solely for the benefit of each party, their respective Successors or permitted assigns and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person. SECTION 8. INVALID PROVISIONS If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. SECTION 9. NOMINEES FOR BENEFICIAL OWNERS In the event that any Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its election, be treated as the holder of such Registrable Securities for purposes of request or other action by any Holder or Holders pursuant to this Agreement or any determination of any amount of shares of Registrable Securities held by any Holder or Holders of Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable Securities so elects, the Company may require assurances reasonably satisfactory to it of such owner's beneficial ownership of such Registrable Securities. For purposes of this Agreement, beneficial ownership and beneficial owner refer to beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under the Exchange Act. SECTION 10. NOTICES All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if (a) delivered personally, (b) by facsimile transmission, (c) by Federal Express or other nationally recognized courier service or (d) mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers: (i) If to the Company, to: Tokheim Corporation 10501 Corporate Drive Fort Wayne, Indiana 46845 Attention: Chief Financial Officer Facsimile: (219) 484-1110 (ii) If to an Holder, to the Registered Address for that Holder. With respect to any other Holder of Registrable Securities entitled to receive notice, requests or other communications hereunder, such notices, requests and other communications shall be sent to the Registered Addresses and telecopy numbers provided to the Company and the other parties hereto by notice as herein provided and referencing this Agreement. All such notices, requests and other communications will (A) if delivered personally to the address as provided in this Section 10, be deemed given upon delivery, (B) if delivered by facsimile transmission to the facsimile number as provided in this Section 10, be deemed given upon receipt, and (C) if delivered by courier service or by mail in the manner described above to the address as provided in this Section 10, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 10). Any Person from time to time may change its Registered Address, facsimile number or other information for the purpose of notices to that Person by giving notice in accordance with this Section 10 specifying such change to each of the other parties executing this Agreement. SECTION 11. DEEMED ACCEPTANCE BY HOLDERS; ASSIGNMENT Each Holder shall be deemed, by accepting the shares of Common Stock acquired by such Holder pursuant to the Plan, to agree to the terms of this Agreement as it may be in effect from time to time, including any amendments, supplements or waivers duly adopted in accordance with Section 5 hereof. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective Successors and permitted assigns of Registrable Securities. Each Holder may assign any of its rights hereunder (in whole or in part) to one or more permitted transferees of Registrable Securities; provided, however, that any such permitted transferees of Registrable Securities agrees in writing, in form and substance reasonably satisfactory to the Company, to be bound by all of the terms and provisions hereof and to join this Agreement as a party hereto. Without limiting the foregoing, no such assignment shall be binding upon or obligate the Company to any such assignee unless and until (a) the Company has received notice of the assignment as herein provided, which notice (i) references this Agreement and (ii) sets forth the Registered Address of any assignee for the purpose of any notices hereunder. SECTION 12. DESCRIPTIVE HEADINGS; SECTION REFERENCES The descriptive headings of the several sections and paragraphs of this Agreement are inserted for convenience of reference only and do not define or limit the provisions hereof or otherwise affect the meaning hereof. All references in this Agreement to sections are to sections of this agreement unless otherwise stated. SECTION 13. SPECIFIC PERFORMANCE The parties agree that, to the extent permitted by law, (i) the obligations imposed on them in this Agreement are special, unique and of an extraordinary character, and that in the event of a breach by any such party damages would not be an adequate remedy; and (ii) each of the other parties shall be entitled to specific performance and injunctive and other equitable relief in addition to any other remedy to which it may be entitled at law or in equity. SECTION 14. GOVERNING LAW This agreement shall be governed by and construed in accordance with the laws of the state of Indiana without reference to the conflicts of law principles thereof to the extent such laws could cause the laws of another state to apply. SECTION 15. ATTORNEYS' FEES In any action or proceeding brought to enforce any provision of this Agreement or where any provision hereof is validly asserted as a defense, the successful party shall, to the extent permitted by applicable law, be entitled to recover reasonable attorneys' fees in addition to any other available remedy. SECTION 16. TERMINATION OF CERTAIN RIGHTS The rights and obligations hereunder of each Holder will terminate with respect to such party at such time when neither it nor any of its respective Affiliates holds Registrable Securities, provided that the provisions of Section 2.3 hereof, the rights of any party hereto with respect to the breach of any provision hereof, and any obligation accrued as of the date of termination (including any obligation accrued under Section 2.6 hereof) shall survive termination of this Agreement. SECTION 17. NO INCONSISTENT AGREEMENTS The Company will not hereafter enter into, modify, amend or waive any agreement with respect to its securities if such agreement, modification, amendment or waiver would materially conflict with the rights granted pursuant to this Agreement to the Holders of Registrable Securities. SECTION 18. REQUISITE HOLDERS Each of the parties hereto agrees that the Company may, in connection with the taking of any action permitted to be taken hereunder with the consent or approval of the Requisite Holders of the Registrable Securities, rely in good faith on a certificate from any such holder or holders stating that it holds or is acting on behalf of a majority in interest of the Registrable Securities. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized as of the date first above written. TOKHEIM CORPORATION By: ------------------------------ Name: ------------------------ Title: ------------------------ BANK ONE, INDIANA, NATIONAL ASSOCIATION By: ------------------------------ Name: ------------------------ Title: ------------------------ CREDIT LYONNAIS NEW YORK BRANCH By: ------------------------------ Name: ------------------------ Title: ------------------------ BANKERS TRUST COMPANY By: ------------------------------ Name: ------------------------ Title: ------------------------ ABN AMRO BANK N.V. By: ------------------------------ Name: ------------------------ Title: ------------------------ CREDIT AGRICOLE INDOSUEZ By: ------------------------------ Name: ------------------------ Title: ------------------------ CREDIT INDUSTRIEL ET COMMERCIAL By: ------------------------------ Name: ------------------------ Title: ------------------------ EATON VANCE INSTITUTIONAL SENIOR LOAN FUND BY: EATON VANCE MANAGEMENT, AS INVESTMENT ADVISOR By: ------------------------------ Name: ------------------------ Title: ------------------------ OAKTREE CAPITAL MANAGEMENT, LLC By: ------------------------------ Name: ------------------------ Title: ------------------------ OXFORD STRATEGIC INCOME FUND BY: EATON VANCE MANAGEMENT, AS INVESTMENT ADVISOR By: ------------------------------ Name: ------------------------ Title: ------------------------ OCTAGON LOAN TRUST BY: OCTAGON CREDIT INVESTORS, AS MANAGER By: ------------------------------ Name: ------------------------ Title: ------------------------ OCTAGON INVESTMENT PARTNERS II, LLC By: ------------------------------ Name: ------------------------ Title: ------------------------ FINOVA CAPITAL CORPORATION By: ------------------------------ Name: ------------------------ Title: ------------------------ BANK POLSKA KASA OPIEKI S.A. - PEKAO S.A. GROUP, NEW YORK BRANCH By: ------------------------------ Name: ------------------------ Title: ------------------------ SENIOR DEBT PORTFOLIO BY: BOSTON MANAGEMENT AND RESEARCH, AS INVESTMENT ADVISOR By: ------------------------------ Name: ------------------------ Title: ------------------------ EATON VANCE SENIOR INCOME TRUST BY: EATON VANCE MANAGEMENT, AS INVESTMENT ADVISOR By: ------------------------------ Name: ------------------------ Title: ------------------------ AMSOUTH BANK By: ------------------------------ Name: ------------------------ Title: ------------------------ ARES LEVERAGED INVESTMENT FUND II, L.P. BY: ARES MANAGEMENT II, L.P. ITS GENERAL PARTNER By: ------------------------------ Name: ------------------------ Title: ------------------------ BEAR, STEARNS & CO. INC. By: ------------------------------ Name: ------------------------ Title: ------------------------ WHIPPOORWILL/TOKHEIM OBLIGATIONS TRUST- 2000 BY: WHIPPOORWILL ASSOCIATES, INCORPORATED, AS ITS INVESTMENT REPRESENTATIVE AND ADVISOR By: ------------------------------ Name: ------------------------ Title: ------------------------ BARCLAYS BANK PLC By: ------------------------------ Name: ------------------------ Title: ------------------------ [ADDITIONAL PARTIES TO BE ADDED] SCHEDULE I HOLDERS BANK ONE, INDIANA, NATIONAL ASSOCIATION CREDIT LYONNAIS NEW YORK BRANCH BANKERS TRUST COMPANY ABN AMRO BANK N.V. CREDIT AGRICOLE INDOSUEZ CREDIT INDUSTRIEL ET COMMERCIAL EATON VANCE INSTITUTIONAL SENIOR LOAN FUND OAKTREE CAPITAL MANAGEMENT, LLC OXFORD STRATEGIC INCOME FUND OCTAGON INVESTMENT PARTNERS II, LLC FINOVA CAPITAL CORPORATION BANK POLSKA KASA OPIEKI S.A. - NEW YORK BRANCH SENIOR DEBT PORTFOLIO EATON VANCE SENIOR INCOME TRUST AMSOUTH BANK ARES LEVERAGED INVESTMENT FUND II, L.P. BEAR, STEARNS & CO. INC. WHIPPOORWILL/TOKHEIM OBLIGATIONS TRUST- 2000 BARCLAYS BANK PLC [OTHER ENTITIES TO BE ADDED] EX-10 9 0009.txt EXHIBIT 10.15 - MANAGEMENT OPTION PLAN Exhibit 10.15 TOKHEIM CORPORATION MANAGEMENT OPTION PLAN Section 1. PURPOSE OF OPTION PLAN The name of this plan is the Tokheim Corporation Management Option Plan (the "Option Plan"). The Option Plan was authorized and approved by the United Stated Bankruptcy Court for the District of Delaware on October 5, 2000 as part of the Plan of Reorganization (as hereinafter defined) and was adopted by the Board (as hereinafter defined) on October 20, 2000. The purpose of the Option Plan is to provide additional incentive to selected management employees of the Company and its Subsidiaries (as hereinafter defined) whose contributions are essential to the growth and success of the Company's business, in order to strengthen the commitment of such persons to the Company and its Subsidiaries, motivate such persons to faithfully and diligently perform their responsibilities and attract and retain competent and dedicated persons whose efforts will result in the long-term growth and profitability of the Company. To accomplish such purposes, the Option Plan provides that the Company may grant Incentive Stock Options and Nonqualified Stock Options (each as hereinafter defined). The Option Plan is intended, to the extent applicable, to satisfy the requirements of section 162(m) of the Code (as hereinafter defined) and shall be interpreted in a manner consistent with the requirements thereof. Section 2. DEFINITIONS. For purposes of the Option Plan, the following terms shall be defined as set forth below: (a) "Administrator" means the Board, or if and to the extent the Board does not administer the Option Plan, the Committee in accordance with Section 3 hereof. (b) "Board" means the Board of Directors of the Company. (c) "Cause" means (1) the continued failure by the Participant substantially to perform his or her duties and obligations to the Company, including without limitation repeated refusal to follow the reasonable directions of the employer, knowing violation of law in the course of performance of the duties of Participant's employment or service with the Company, repeated absences from work without a reasonable excuse, and intoxication with alcohol or illegal drugs while on the Company's premises during regular business hours (other than any such failure resulting from his or her incapacity due to physical or mental illness); (2) fraud or material dishonesty against the Company; or (3) a conviction or plea of guilty or nolo contendere for the commission of a felony or a crime involving material dishonesty. Determination of Cause shall be made by the Administrator in its sole discretion. (d) "Change in Capitalization" means any increase, reduction, or change or exchange of Shares for a different number or kind of shares or other securities or property by reason of a reclassification, recapitalization, merger, consolidation, reorganization, issuance of warrants or rights, stock dividend, stock split or reverse stock split, combination or exchange of shares, repurchase of shares, change in corporate structure or otherwise; or any other corporate action, such as declaration of a special dividend, that affects the capitalization of the Company. (e) "Change in Control" means such time as ( provided that the transactions effected by the Plan of Reorganization shall in no event constitute a Change in Control): (i) any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, but excluding any Specified Person (as defined below) shall acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than 40% of the outstanding securities (on a fully diluted basis and taking into account any securities or contract rights exercisable, exchangeable or convertible into equity securities, but excluding any Series A Preferred Stock) of the Company having voting rights in the election of directors under normal circumstances; or (ii) a majority of the members of the Board of Directors of the Company shall cease to be Continuing Members. (iii) For purposes of the foregoing, (A) "Continuing Member" means a member of the Board of Directors who either (i) was a member of the Company's Board of Directors on the date of the New Credit Agreement and has been such continuously thereafter, (ii) became a member of such Board of Directors after the Closing Date (as defined in the New Credit Agreement) and whose election or nomination for election was approved by a vote of the majority of the Continuing Members then members of the Company's Board of Directors, or (iii) was designated by the holders of the Series A Preferred Stock; (B) "Specified Person" means any beneficial holder of Senior Subordinate Note Claims (under and as defined in the Plan of Reorganization) immediately prior to the time the Plan of Reorganization becomes effective. (f) "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto. (g) "Committee" means any committee or subcommittee the Board may appoint to administer the Option Plan. If at any time or to any extent the Board shall not administer the Option Plan, then the functions of the Administrator specified in the Option Plan shall be exercised by the Committee. The composition of the Committee shall at all times consist solely of persons who are (i) "Nonemployee Directors" as defined in Rule 16b-3 issued under the Exchange Act, and (ii) unless otherwise determined by the Board, "outside directors" as defined in section 162(m) of the Code. (h) "Common Stock" means the common stock, no par value per share, of the Company. (i) "Company" means Tokheim Corporation, an Indiana corporation (or any successor corporation). (j) "Disability" means (1) any physical or mental condition that would qualify a Participant for a disability benefit under any long- term disability plan maintained by the Company; or (2) such other condition as may be determined in the sole discretion of the Administrator to constitute Disability. (k) "Effective Date" means the business day that the Plan of Reorganization becomes effective. (l) "Eligible Recipient" means a management employee of the Company or any of its Subsidiaries who has been selected as an eligible participant by the Board. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. (n) "Exercise Price" means the per share price at which a holder of an Option may purchase the Shares issuable upon exercise of the Option. (o) "Fair Market Value" as of a particular date shall mean the fair market value of a share of Common Stock as determined by the Administrator in its sole discretion; provided that (i) if the Common Stock is admitted to trading on a national securities exchange, fair market value of a share of Common Stock on any date shall be the closing sale price reported for such share on such exchange on the last day preceding such date on which a sale was reported, (ii) if the Common Stock is admitted to quotation on the National Association of Securities Dealers Automated Quotation ("Nasdaq") System or other comparable quotation system and has been designated as a National Market System ("NMS") security, fair market value of a share of Common Stock on any date shall be the closing sale price reported for such share on such system on the last date preceding such date on which a sale was reported, or (iii) if the Common Stock is admitted to quotation on the Nasdaq System but has not been designated as an NMS security, fair market value of a share of Common Stock on any date shall be the average of the highest bid and lowest asked prices of such share on such system on the last date preceding such date on which both bid and ask prices were reported. (p) "Immediate Family" means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships of the Participant; trusts for the benefit of such immediate family members; or partnerships in which such immediate family members are the only partners. (q) "Incentive Stock Option" shall mean an Option that is an "incentive stock option" within the meaning of section 422 of the Code, or any successor provision, and that is designated by the Committee as an Incentive Stock Option. (r) "New Credit Agreement" means that certain Post- Confirmation Credit Agreement dated as of October 20, 2000, among the Corporation, various subsidiaries thereof as borrowers, various financial institutions, AmSouth Bank, as documentation agent, and ABN AMRO Bank N.V, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time. (s) "Nonqualified Stock Option" means any Option that is not an Incentive Stock Option, including any Option that provides (as of the time such Option is granted) that it will not be treated as an Incentive Stock Option. (t) "Option" means an Incentive Stock Option, a Nonqualified Stock Option, or either of them, as the context requires. (u) "Option Agreement" means, with respect to each Option, the written agreement between the Company and the Participant setting forth the terms and conditions of the Option. (v) "Participant" means any Eligible Recipient selected by the Administrator, pursuant to the Administrator's authority in Section 3 hereof, to receive grants of Options. A Participant who receives the grant of an Option is sometimes referred to herein as "Optionee." (w) "Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. (x) "Plan of Reorganization" means the Company's chapter 11 plan of reorganization, including all supplements, appendices and schedules thereto, as filed with the United States Bankruptcy Court on August 16, 2000. (y) "Qualifying Termination" means a termination of a Participant's employment or service by the Company other than for Cause. (z) "Series A Preferred Stock" means the Series A Senior Preferred Stock issued by the Company. (aa) "Shares" means shares of Common Stock and any successor security. (ab) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations (other than the last corporation) in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain. Section 3. ADMINISTRATION. (a) The Option Plan shall be administered by the Board or, at the Board's sole discretion, by the Committee, which shall serve at the pleasure of the Board. If the Option Plan is intended to comply with Section 162(m) of the Code, the Committee shall consist of two or more persons, each of whom is an "outside director" within the meaning of Section 162(m) of the Code. Pursuant to the terms of the Option Plan, the Administrator shall have the power and authority, without limitation: (i) to select those Eligible Recipients who shall be Participants; (ii) to determine whether and to what extent Options are to be granted hereunder to Participants; (iii) to determine the number of Shares to be covered by each Option granted hereunder; (iv) to determine the terms and conditions, not inconsistent with the terms of the Option Plan, of each Option granted hereunder; (v) to determine the terms and conditions, not inconsistent with the terms of the Option Plan, which shall govern all written instruments evidencing Options granted hereunder; (vi) to adopt, alter and repeal such administrative rules, guidelines and practices governing the Option Plan as it shall from time to time deem advisable; and (vii) to interpret the terms and provisions of the Option Plan and any Option issued under the Option Plan (and any Option Agreement relating thereto), and to otherwise supervise the administration of the Option Plan. (b) All decisions made by the Administrator pursuant to the provisions of the Option Plan shall be final, conclusive and binding on all persons, including the Company and the Participants. No member of the Board or the Committee, nor any officer or employee of the Company acting on behalf of the Board or the Committee, shall be personally liable for any action, determination, or interpretation taken or made in good faith with respect to the Option Plan, and all members of the Board or the Committee and each and any officer or employee of the Company acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, determination or interpretation. Section 4. SHARES SUBJECT TO THE OPTION PLAN. (a) Shares Available for Issuance. The total number of shares of Common Stock reserved and available for issuance under the Option Plan shall be 500,000 Shares. Such Shares may consist, in whole or in part, of authorized and unissued Shares or treasury shares. (b) Reuse of Shares. To the extent that an Option expires or is otherwise canceled or terminated without being exercised, such Shares shall again be available for issuance in connection with future Options granted under the Option Plan. (c) Individual Limitation. To the extent required by Section 162(m) of the Code, the total number of Shares that may be subject to an Option granted to any Eligible Recipient shall not exceed [150,000] Shares in any calendar year (subject to adjustment as provided by Section 5 hereof). Section 5. EQUITABLE ADJUSTMENTS (a) In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and/or kind of shares of common stock reserved for issuance under the Option Plan, and (ii) the kind, number and/or option price of shares of stock or other property subject to outstanding Options granted under the Option Plan, in each case as may be determined by the Administrator, in its sole discretion. Such other equitable substitutions or adjustments shall be made as may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator may provide, in its sole discretion, for the cancellation of any outstanding Option in exchange for payment in cash or other property of the Fair Market Value of the Shares covered by such Options, reduced by the exercise price thereof. Section 6. ELIGIBILITY. The Participants under the Option Plan shall be selected from time to time by the Administrator, in its sole discretion, from among Eligible Recipients. The Administrator shall have the authority to grant to any Eligible Recipient Incentive Stock Options or Nonqualified Stock Options. Section 7. OPTIONS. (a) General. The Options granted under the Plan may be of two types: (i) Incentive Stock Options and (ii) Nonqualified Stock Options. The provisions of each Option need not be the same with respect to each Participant. Participants who are granted Options shall enter into an Option Agreement with the Company, in such form as the Administrator shall determine, which Option Agreement shall set forth, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option granted thereunder. To the extent that any Option does not qualify as an Incentive Stock Option, it shall constitute a separate Nonqualified Stock Option. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Option Plan shall be subject to the terms and conditions set forth in paragraphs (b)-(k) of this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Option Plan, as the Administrator shall deem desirable. (b) Exercise Price. The per share Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant but shall not, in the case of Incentive Stock Options, be less than 100% of the Fair Market Value per Share on such date (110% of the Fair Market Value per Share on such date if, on such date, the Eligible Recipient owns (or is deemed to own under the Code) stock possessing more than ten percent (a "Ten Percent Owner") of the total combined voting power of all classes of Common Stock). (c) Option Term. The term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten years after the date such Option is granted. If the Eligible Participant is a Ten Percent Owner, an Incentive Stock Option may not be exercisable after the expiration of five years from the date such Incentive Stock Option is granted. (d) Exercisability. Options shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of preestablished corporate performance goals, as shall be determined by the Administrator in the Option Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion. (e) Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, payment in whole or in part may also be made (i) by means of any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Optionee which, (x) in the case of unrestricted Shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and (y) has a Fair Market Value on the date of surrender equal to the aggregate option price of the Shares as to which such Option shall be exercised, provided that, in the case of an Incentive Stock Option, the right to make payment in the form of already owned Shares may be authorized only at the time of grant. (f) Rights as Stockholder. An Optionee shall have no rights to dividends or any other rights of a stockholder with respect to the Shares subject to the Option until the Optionee has given written notice of exercise, has paid in full for such Shares, has satisfied the requirements of Section 10 hereof and, if requested, has given the representation described in paragraph (b) of Section 11 hereof. (g) Nontransferability of Options. The Optionee shall not be permitted to sell, transfer, pledge or assign any Option other than by will and the laws of descent and distribution and all Options shall be exercisable during the Participant's lifetime only by the Participant, in each case, except as set forth in the following two sentences. During an Optionee's lifetime, the Administrator may, in its discretion, permit the transfer of an outstanding Option if such Option is a Nonqualified Stock Option or an Incentive Stock Option that the Administrator and the Participant intend to change to a Nonqualified Stock Option. Subject to the approval of the Administrator and to any conditions that the Administrator may prescribe, an Optionee may, upon providing written notice to the Company, elect to transfer any or all Options described in the preceding sentence to members of his or her Immediate Family, provided that no such transfer by any Participant may be made in exchange for consideration. (h) Termination of Employment. If an Optionee's employment with the Company or Subsidiary terminates for any other reason than Cause, Options granted to such Participant, to the extent that they are exercisable at the time of such termination, shall remain exercisable until the date set forth in the Option Agreement, or such later date as is otherwise determined by the Administrator. Notwithstanding the foregoing, no Option shall be exercisable after the expiration of its term. If an Optionee's employment is terminated for Cause, no portion of the Option may be exercised following the Termination Date. For purposes of this Section, a Participant shall be considered to have terminated his or her employment if the Participant is employment by a Subsidiary that ceases for any reason to be a Subsidiary of the Company unless the Participant becomes employed by the Company or a continuing Subsidiary immediately following such event. (i) Other Change in Employment Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, changes from full-time to part-time employment, partial disability or other changes in the employment status of an Optionee, in the discretion of the Administrator. The Administrator shall follow the written policy of the Company (if any) as it may be in effect from time to time, with regard to such matters. (j) Acceleration Upon Change in Control. If, during the one- year period following the occurrence of a Change in Control, the employment or service of an Optionee is terminated by reason of a Qualifying Termination, each Option held by such Optionee under the Option Plan and outstanding at such time shall become fully and immediately exercisable. Section 8. AMENDMENT AND TERMINATION. The Board may amend, alter or discontinue the Option Plan, but no amendment, alteration, or discontinuation shall be made that would impair the rights of a Participant under any Option theretofore granted without such Participant's consent. Unless the Board determines otherwise, the Board shall obtain approval of the Company's stockholders for any amendment that would require such approval in order to satisfy the requirements of section 162(m) of the Code, stock exchange rules or other applicable law. The Administrator may amend the terms of any Option theretofore granted, prospectively or retroactively, but, subject to Section 4 of the Option Plan, no such amendment shall impair the rights of any Participant without his or her consent. Section 9. UNFUNDED STATUS OF OPTION PLAN. The Option Plan is intended to constitute an "unfunded" plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company. Section 10. WITHHOLDING TAXES. Whenever cash is to be paid pursuant to an Option, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. Whenever Shares are to be delivered pursuant to an Option, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any federal, state and local withholding tax requirements related thereto. With the approval of the Administrator, a Participant may satisfy the foregoing requirement by electing to have the Company withhold from delivery Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such shares shall be valued at their Fair Market Value on the date of which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. Such a election may be made with respect to all or any portion of the shares to be delivered pursuant to an Option. Section 11. GENERAL PROVISIONS. (a) Shares shall not be issued pursuant to the exercise of any Option granted hereunder unless the exercise of such Option and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act and the requirements of any stock exchange upon which the Common Stock may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance. (b) The Administrator may require each person acquiring Shares to represent to and agree with the Company in writing that such person is acquiring the Shares without a view to distribution thereof. The certificates for such Shares may include any legend that the Administrator deems appropriate to reflect any restrictions on transfer. (c) All certificates for Shares delivered under the Option Plan shall be subject to such stock-transfer orders and other restrictions as the Administrator may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock may then be listed, and any applicable federal or state securities law, and the Administrator may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions. (d) The adoption of the Option Plan shall not confer upon any Eligible Recipient any right to continued employment or service with the Company or Subsidiary, as the case may be, nor shall it interfere in any way with the right of the Company or Subsidiary to terminate the employment or service of any of its Eligible Recipients at any time. Section 12. EFFECTIVE DATE OF OPTION PLAN. The effective date of this Option Plan shall be the Effective Date. Section 13. TERM OF OPTION PLAN. No Option shall be granted pursuant to the Option Plan on or after the tenth anniversary of the Effective Date, but Options theretofore granted may extend beyond that date. EX-10 10 0010.txt EXHIBIT 10.16 - [FORM OF] INCENTIVE STOCK OPTION AGREEMENT Exhibit 10.16 [FORM OF] INCENTIVE STOCK OPTION AGREEMENT UNDER TOKHEIM CORPORATION MANAGEMENT OPTION PLAN This Incentive Stock Option Agreement (the "Option Agreement") is made and entered into as of [insert date] (the "Date of Grant"), by and between Tokheim Corporation, a Indiana corporation (the "Company"), and [optionee] (the "Optionee"). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company's Management Option Plan (the "Option Plan"). The Option is intended to be an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding the foregoing, the Option will not qualify as an Incentive Stock Option, among other events, (i) if the Optionee disposes of the Option Shares (defined below) acquired pursuant to the Option at any time during the two year period following the date of this Agreement or the one year period following the date on which the Option is exercised, or (ii) if the Optionee is not employed by the Company or a subsidiary of the Company within the meaning of Section 424 of the Code (a "Subsidiary") at all times during the period beginning on the date of this Agreement and ending on the day three months before the date of exercise of the Option, or (iii) to the extent the aggregate fair market value (determined as of the time the Option is granted) of the stock subject to Incentive Stock Options which become exercisable for the first time in any calendar year exceeds $100,000. To the extent that the Option does not qualify as an Incentive Stock Option, it shall constitute a separate Nonqualified Stock Option. 1. Number of Shares. The Company hereby grants to the Optionee an option (this "Option") to purchase [insert number] Shares (the "Option Shares") at an Exercise Price per Share of $[insert price], subject to all of the terms and conditions of this Option Agreement and the Option Plan. 2. Option Term. The term of the Option and of this Option Agreement (the "Option Term") shall commence on the Date of Grant set forth above and, unless the Option is previously terminated pursuant to Section 5 below, shall terminate upon the tenth anniversary of the Date of Grant (the "Expiration Date"). As of the Expiration Date, all rights of the Optionee hereunder shall terminate. 3. Conditions of Exercise. (a) Subject to Section 5 below, the Option shall become vested and exercisable in equal installments over a three year period on each anniversary of the Date of Grant as follows: (1) 1st anniversary: 1/3 of the Option Shares (2) 2nd anniversary: an additional 1/3 of the Option Shares (3) 3rd anniversary: an additional 1/3 of the Option Shares. (b) Prior to the Expiration Date, this Option may be exercised in whole or in part at any time as to Option Shares which have vested; provided that, in the event the Optionee terminates employment or service with the Company or Subsidiary, from and after such Termination Date (as defined in Section 5 below), this Option may be exercised only with respect to Option Shares that have vested as of the Termination Date. This Option may not be exercised for a fraction of a share. 4. Method of Exercise of Option. (a) The Option may be exercised by delivering to the Company an executed stock option exercise notice in the form approved by the Administrator from time to time (the "Exercise Notice"), which shall set forth, inter alia, (i) the Optionee's election to exercise the Option, (ii) the number of Shares being purchased and (iii) any representations, warranties and agreements regarding the Optionee's investment intent and access to information as may be required by the Company to comply with applicable securities laws, and payment in full of the aggregate Exercise Price of the shares being purchased. (b) The Option may not be exercised unless such exercise is in compliance with all applicable federal and state securities law, as they are in effect on the date of exercise. (c) Payment of the aggregate Exercise Price for Option Shares being purchased and any applicable withholding taxes may be made (i) in cash or by check, (ii) at the discretion of the Administrator, by means of a cashless exercise procedure either through a broker or through withholding of Shares otherwise issuable upon exercise of the Option, (iii) at the discretion of the Administrator, in the form of unrestricted Shares already owned by the Optionee which, (x) in the case of unrestricted Shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and (y) have an aggregate Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which such Option shall be exercised. 5. Effect of Termination of Employment or Service. Upon the termination of the Optionee's employment with the Company or Subsidiary under any circumstances, the Option shall immediately terminate as to any Option Shares that have not previously vested as of the date of such termination (the "Termination Date"). Any portion of the Option that has vested as of the Termination Date shall be exercisable in whole or in part for a period of 30 days following the Termination Date unless the termination is by the Company for Cause; provided that, in the event of termination by reason of the Optionee's death or Disability or in the event of the Optionee's death during such 30-day period, such exercise period shall extend until the date that is six months from the Termination Date; provided, further, that in no event may the Option be exercised after the Expiration Date. Upon expiration of such 30-day or six-month period, as applicable, any unexercised portion of the Option shall terminate in full. If the Optionee's employment is terminated by the Company for Cause, no portion of the Option may be exercised following the Termination Date. 6. Other Change in Employment Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, changes from full-time to part-time employment, partial disability or other changes in the employment status of an Optionee, in the discretion of the Administrator. The Administrator shall follow the written policy of the Company (if any) as it may be in effect from time to time, with regard to such matters. 7. Adjustments; Change in Control. In the event of a Change in Capitalization, a substitution or proportionate adjustment shall be made in the kind, number and/or option price of shares of stock or other property subject to outstanding Options granted under the Option Plan, as set forth in Section 5 of the Option Plan. If during the one-year period following a Change in Control, the employment or service of the Optionee is terminated by reason of a Qualifying Termination, this Option shall become fully and immediately exercisable. 8. Nontransferability of Option. Except under the laws of descent and distribution (including by instrument to an inter vivos or testamentary trust in which the Options are to be passed to beneficiaries upon the death of the Participant), the Optionee shall not be permitted to sell, transfer, pledge or assign the Option and this Option Agreement and the Option shall be exercisable, during the Optionee's lifetime, only by the Optionee. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option shall be null and void and without effect. 9. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three days after mailing or 24 hours after transmission by facsimile to the respective parties named below: If to Company: Tokheim Corporation 10501 Corporate Drive Fort Wayne, Indiana 46845 Facsimile: (219) 484-1110 Attn: Secretary If to the Optionee: [Optionee] [address] Facsimile: [o] Either party hereto may change such party's address for notices by notice duly given pursuant hereto. 10. Securities Laws Requirements. The Option shall not be exercisable to any extent, and the Company shall not be obligated to transfer any Option Shares to the Optionee upon exercise of such Option, if such exercise, in the opinion of counsel for the Company, would violate the Securities Act (or any other federal or state statutes having similar requirements as may be in effect at that time). Further, the Company may require as a condition of transfer of any Option Shares pursuant to any exercise of the Option that the Optionee furnish a written representation that he or she is purchasing or acquiring the Option Shares for investment and not with a view to resale or distribution to the public. [The Optionee hereby represents and warrants that he or she understands that the Option Shares are "restricted securities," as defined in Rule 144 under the Securities Act, and that any resale of the Option Shares must be in compliance with the registration requirements of the Securities Act, or an exemption therefrom, and with the requirements of any applicable "blue sky" laws. Each certificate representing Option Shares shall bear the legends set forth below and any other legends that may be required by the Company or by any federal or state securities laws: THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES THEREUNDER, AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIO NS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEES. SUCH TRANSFER RESTRICTIO NS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREE S OF THESE SHARES.] Further, if the Company decides, in its sole discretion, that the listing or qualification of the Option Shares under any securities or other applicable law is necessary or desirable, the Option shall not be exercisable, in whole or in part, unless and until such listing or qualification, or a consent or approval with respect thereto, shall have been effected or obtained free of any conditions not acceptable to the Company. 11. No Obligation to Register Option Shares. The Company shall be under no obligation to register the Option Shares pursuant to the Securities Act or any other federal or state securities laws. 12. Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Option Shares by any holder thereof in violation of the provisions of this Agreement or the Certificate of Incorporation or the By-Laws of the Company, will be valid, and the Company will not transfer any of said Option Shares on its books nor will any of said Option Shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions. 13. Withholding Requirements. The Company's obligations under this Option Agreement shall be subject to all applicable tax and other withholding requirements, and the Company shall, to the extent permitted by law, have the right to deduct any withholding amounts from any payment or transfer of any kind otherwise due to the Optionee. With the approval of the Administrator, the Optionee may satisfy the foregoing requirement by electing to have the Company withhold from delivery Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such Shares shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. 14. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any time any provision of this Option Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof. 15. Governing Law. This Option Agreement shall be governed by and construed according to the laws of the State of [bullet] without regard to its principles of conflict of laws. 16. Incorporation of Option Plan. The Option Plan is hereby incorporated by reference and made a part hereof, and the Option and this Option Agreement shall be subject to all terms and conditions of the Option Plan. 17. Amendments. This Option Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto. 18. Rights as a Stockholder. Neither the Optionee nor any of the Optionee's successors in interest shall have any rights as a stockholder of the Company with respect to any Shares subject to the Option until the date of issuance of a stock certificate for such Shares. 19. Agreement Not a Contract for Services. Neither the Option Plan, the granting of the Option, this Option Agreement nor any other action taken pursuant to the Option Plan shall constitute or be evidence of any agreement or understanding, express or implied, that the Optionee has a right to continue to provide services as an officer, director, employee, consultant or advisor of the Company or any Parent, Subsidiary or affiliate of the Company for any period of time or at any specific rate of compensation. 20. Authority of the Board. The Board shall have full authority to interpret and construe the terms of the Option Plan and this Option Agreement. The determination of the Board as to any such matter of interpretation or construction shall be final, binding and conclusive. 21. Acceptance. The Optionee hereby acknowledges receipt of a copy of the Option Plan and this Option Agreement. The Optionee has read and understand the terms and provision thereof, and accepts the Option subject to all the terms and conditions of the Option Plan and this Agreement. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Option Agreement on the day and year first above written. TOKHEIM CORPORATION By ----------------------------- Name ----------------------------- Title ----------------------------- ----------------------------------- Optionee EX-10 11 0011.txt EXHIBIT 10.17 - INCENTIVE STOCK OPTION AGREEMENT Exhibit 10.17 INCENTIVE STOCK OPTION AGREEMENT UNDER TOKHEIM CORPORATION MANAGEMENT OPTION PLAN This Incentive Stock Option Agreement (the "Option Agreement") is made and entered into as of October __, 2000 (the "Date of Grant"), by and between Tokheim Corporation, a Indiana corporation (the "Company"), and Douglas K. Pinner (the "Optionee"). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company's Management Option Plan (the "Option Plan"). The Option is intended to be an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding the foregoing, the Option will not qualify as an Incentive Stock Option, among other events, (i) if the Optionee disposes of the Option Shares (defined below) acquired pursuant to the Option at any time during the two year period following the date of this Agreement or the one year period following the date on which the Option is exercised, or (ii) if the Optionee is not employed by the Company or a subsidiary of the Company within the meaning of Section 424 of the Code (a "Subsidiary") at all times during the period beginning on the date of this Agreement and ending on the day three months before the date of exercise of the Option, or (iii) to the extent the aggregate fair market value (determined as of the time the Option is granted) of the stock subject to Incentive Stock Options which become exercisable for the first time in any calendar year exceeds $100,000. To the extent that the Option does not qualify as an Incentive Stock Option, it shall constitute a separate Nonqualified Stock Option. 1. Number of Shares. The Company hereby grants to the Optionee an option (this "Option") to purchase 100,000 Shares (the "Option Shares") at an Exercise Price per Share of $10.00, subject to all of the terms and conditions of this Option Agreement and the Option Plan. 2. Option Term. The term of the Option and of this Option Agreement (the "Option Term") shall commence on the Date of Grant set forth above and, unless the Option is previously terminated pursuant to Section 5 below, shall terminate upon the tenth anniversary of the Date of Grant (the "Expiration Date"). As of the Expiration Date, all rights of the Optionee hereunder shall terminate. 3. Conditions of Exercise. (a) Subject to Section 5 below, the Option shall become vested and exercisable in equal installments over a three year period on each anniversary of the Date of Grant as follows: (1) 1st anniversary: 1/3 of the Option Shares (2) 2nd anniversary: an additional 1/3 of the Option Shares (3) 3rd anniversary: an additional 1/3 of the Option Shares. (b) Prior to the Expiration Date, this Option may be exercised in whole or in part at any time as to Option Shares which have vested; provided that, in the event the Optionee terminates employment or service with the Company or Subsidiary, from and after such Termination Date (as defined in Section 5 below), this Option may be exercised only with respect to Option Shares that have vested as of the Termination Date. This Option may not be exercised for a fraction of a share. 4. Method of Exercise of Option. (a) The Option may be exercised by delivering to the Company an executed stock option exercise notice in the form approved by the Administrator from time to time (the "Exercise Notice"), which shall set forth, inter alia, (i) the Optionee's election to exercise the Option, (ii) the number of Shares being purchased and (iii) any representations, warranties and agreements regarding the Optionee's investment intent and access to information as may be required by the Company to comply with applicable securities laws, and payment in full of the aggregate Exercise Price of the shares being purchased. (b) The Option may not be exercised unless such exercise is in compliance with all applicable federal and state securities law, as they are in effect on the date of exercise. (c) Payment of the aggregate Exercise Price for Option Shares being purchased and any applicable withholding taxes may be made (i) in cash or by check, (ii) at the discretion of the Administrator, by means of a cashless exercise procedure either through a broker or through withholding of Shares otherwise issuable upon exercise of the Option, (iii) at the discretion of the Administrator, in the form of unrestricted Shares already owned by the Optionee which, (x) in the case of unrestricted Shares acquired upon exercise of an option, have been owned by the Optionee for more than six months on the date of surrender, and (y) have an aggregate Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which such Option shall be exercised. 5. Effect of Termination of Employment or Service. Upon the termination of the Optionee's employment with the Company or Subsidiary under any circumstances, the Option shall immediately terminate as to any Option Shares that have not previously vested as of the date of such termination (the "Termination Date"). Any portion of the Option that has vested as of the Termination Date shall be exercisable in whole or in part for a period of 30 days following the Termination Date unless the termination is by the Company for Cause; provided that, in the event of termination by reason of the Optionee's death or Disability or in the event of the Optionee's death during such 30-day period, such exercise period shall extend until the date that is six months from the Termination Date; provided, further, that in no event may the Option be exercised after the Expiration Date. Upon expiration of such 30-day or six-month period, as applicable, any unexercised portion of the Option shall terminate in full. If the Optionee's employment is terminated by the Company for Cause, no portion of the Option may be exercised following the Termination Date. 6. Other Change in Employment Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, changes from full-time to part-time employment, partial disability or other changes in the employment status of an Optionee, in the discretion of the Administrator. The Administrator shall follow the written policy of the Company (if any) as it may be in effect from time to time, with regard to such matters. 7. Adjustments; Change in Control. In the event of a Change in Capitalization, a substitution or proportionate adjustment shall be made in the kind, number and/or option price of shares of stock or other property subject to outstanding Options granted under the Option Plan, as set forth in Section 5 of the Option Plan. If during the one-year period following a Change in Control, the employment or service of the Optionee is terminated by reason of a Qualifying Termination, this Option shall become fully and immediately exercisable. 8. Nontransferability of Option. Except under the laws of descent and distribution (including by instrument to an inter vivos or testamentary trust in which the Options are to be passed to beneficiaries upon the death of the Participant), the Optionee shall not be permitted to sell, transfer, pledge or assign the Option and this Option Agreement and the Option shall be exercisable, during the Optionee's lifetime, only by the Optionee. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option shall be null and void and without effect. 9. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three days after mailing or 24 hours after transmission by facsimile to the respective parties named below: If to Company: Tokheim Corporation 10501 Corporate Drive Fort Wayne, Indiana 46845 Facsimile: (219) 484-1110 Attn: Secretary If to the Optionee: Douglas Pinner Tokheim Corporation 10501 Corporate Drive Fort Wayne, Indiana 46845 Facsimile: (219) 470-4887 Either party hereto may change such party's address for notices by notice duly given pursuant hereto. 10. Securities Laws Requirements. The Option shall not be exercisable to any extent, and the Company shall not be obligated to transfer any Option Shares to the Optionee upon exercise of such Option, if such exercise, in the opinion of counsel for the Company, would violate the Securities Act (or any other federal or state statutes having similar requirements as may be in effect at that time). Further, the Company may require as a condition of transfer of any Option Shares pursuant to any exercise of the Option that the Optionee furnish a written representation that he or she is purchasing or acquiring the Option Shares for investment and not with a view to resale or distribution to the public. The Optionee hereby represents and warrants that he or she understands that the Option Shares are "restricted securities," as defined in Rule 144 under the Securities Act, and that any resale of the Option Shares must be in compliance with the registration requirements of the Securities Act, or an exemption therefrom, and with the requirements of any applicable "blue sky" laws. Each certificate representing Option Shares shall bear the legends set forth below and any other legends that may be required by the Company or by any federal or state securities laws: THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES THEREUNDER, AND MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIO NS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEES. SUCH TRANSFER RESTRICTIO NS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREE S OF THESE SHARES. Further, if the Company decides, in its sole discretion, that the listing or qualification of the Option Shares under any securities or other applicable law is necessary or desirable, the Option shall not be exercisable, in whole or in part, unless and until such listing or qualification, or a consent or approval with respect thereto, shall have been effected or obtained free of any conditions not acceptable to the Company. 11. No Obligation to Register Option Shares. The Company shall be under no obligation to register the Option Shares pursuant to the Securities Act or any other federal or state securities laws. 12. Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Option Shares by any holder thereof in violation of the provisions of this Agreement or the Certificate of Incorporation or the By-Laws of the Company, will be valid, and the Company will not transfer any of said Option Shares on its books nor will any of said Option Shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions. 13. Withholding Requirements. The Company's obligations under this Option Agreement shall be subject to all applicable tax and other withholding requirements, and the Company shall, to the extent permitted by law, have the right to deduct any withholding amounts from any payment or transfer of any kind otherwise due to the Optionee. With the approval of the Administrator, the Optionee may satisfy the foregoing requirement by electing to have the Company withhold from delivery Shares or by delivering already owned unrestricted Shares, in each case, having a value equal to the minimum amount of tax required to be withheld. Such Shares shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. 14. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any time any provision of this Option Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof. 15. Governing Law. This Option Agreement shall be governed by and construed according to the laws of the State of Indiana without regard to its principles of conflict of laws. 16. Incorporation of Option Plan. The Option Plan is hereby incorporated by reference and made a part hereof, and the Option and this Option Agreement shall be subject to all terms and conditions of the Option Plan. 17. Amendments. This Option Agreement may be amended or modified at any time only by an instrument in writing signed by each of the parties hereto. 18. Rights as a Stockholder. Neither the Optionee nor any of the Optionee's successors in interest shall have any rights as a stockholder of the Company with respect to any Shares subject to the Option until the date of issuance of a stock certificate for such Shares. 19. Agreement Not a Contract for Services. Neither the Option Plan, the granting of the Option, this Option Agreement nor any other action taken pursuant to the Option Plan shall constitute or be evidence of any agreement or understanding, express or implied, that the Optionee has a right to continue to provide services as an officer, director, employee, consultant or advisor of the Company or any Parent, Subsidiary or affiliate of the Company for any period of time or at any specific rate of compensation. 20. Authority of the Board. The Board shall have full authority to interpret and construe the terms of the Option Plan and this Option Agreement. The determination of the Board as to any such matter of interpretation or construction shall be final, binding and conclusive. 21. Acceptance. The Optionee hereby acknowledges receipt of a copy of the Option Plan and this Option Agreement. The Optionee has read and understand the terms and provision thereof, and accepts the Option subject to all the terms and conditions of the Option Plan and this Agreement. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Option Agreement on the day and year first above written. TOKHEIM CORPORATION By ----------------------------- Name ----------------------------- Title ----------------------------- -------------------------------- Optionee EX-27 12 0012.txt EXHIBIT 27.1 - FINANCIAL DATA SCHEDULE
5 This schedule contains summary financial information extracted from the Form 10-Q and is qualified in its entirety by reference to such financial statements. 0000098559 TOKHEIM CORPORATION 1,000 9-MOS NOV-30-2000 AUG-31-2000 14,989 0 104,282 5,366 79,165 211,889 154,481 89,740 574,589 413,326 0 16,737 0 116,562 (219,951) 574,589 389,917 389,917 306,147 306,147 107,050 0 44,625 (69,414) (1,362) (68,052) 0 0 0 (69,202) (5.46) (5.46)
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