EXHIBIT 10.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of December 31, 2001, between CHART
INDUSTRIES, INC., a Delaware corporation duly organized and validly existing
under the laws of the State of Delaware (the "Borrower"); each of the
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Subsidiaries of the Borrower identified under the caption "SUBSIDIARY BORROWERS"
on the signature pages hereto (individually, a "Subsidiary Borrower" and,
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collectively, the "Subsidiary Borrowers"); each of the Subsidiaries of the
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Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto (individually, a "Subsidiary Guarantor" and, collectively, the
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"Subsidiary Guarantors" and, together with the Borrower and the Subsidiary
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Borrowers, the "Obligors"); each of the lenders that is a signatory hereto
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(individually, a "Lender" and, collectively, the "Lenders"); JPMORGAN CHASE BANK
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(as successor to The Chase Manhattan Bank), as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"Administrative Agent"); and NATIONAL CITY BANK, as Documentation Agent.
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The Borrower, the Subsidiary Borrowers, the Subsidiary Guarantors,
each of the lenders that is a signatory thereto and the Administrative Agent are
parties to a Credit Agreement dated as of April 12, 1999 (as heretofore modified
and supplemented and in effect on the date hereof, the "Credit Agreement"),
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providing, subject to the terms and conditions thereof, for loans and other
extensions of credit to be made by said lenders to the Borrower in an aggregate
principal or face amount as specified therein. The Borrower, the Subsidiary
Borrowers, the Subsidiary Guarantors, the Lenders and the Administrative Agent
wish to amend the Credit Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
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Amendment No. 4, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
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precedent specified in Section 5, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references to the
Credit Agreement as amended hereby) to "this Agreement" (and indirect references
such as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Credit Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions (to the extent not already included in said
Section 1.01) and inserting the same in the appropriate alphabetical locations
and by amending in their entirety the following definitions (to the extent
already included in said Section 1.01), as follows:
"Amendment No. 4 Effective Date" means the date on which Amendment No.
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4 dated as of December 31, 2001 to this Agreement shall become effective.
"Applicable Margin" means, for any day, with respect to any ABR Loan
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(including any Swingline Loan) or Eurodollar Loan, as the case may be, of
any Class the applicable rate per annum set forth below under the caption
"ABR Spread" or "Eurodollar Spread" with respect to such Class,
respectively, based upon the Leverage Ratio as of the most recent
determination date:
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Eurodollar
Spread for
Leverage Ratio: ABR Spread for Revolving
--------------- Revolving Credit Credit Loans Eurodollar
Loans and Term and Term ABR Spread for Spread for Term
Loan A Loan A Term Loan B Loan B
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Category 1
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3.00% 4.00% 3.50% 4.50%
Greater than 6.00 to 1
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Category 2
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2.75% 3.75% 3.25% 4.25%
Less than or equal to
6.00 to 1 and greater
than 5.50 to 1
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Category 3
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2.50% 3.50% 3.00% 4.00%
Less than or equal to
5.50 to 1 and greater
than 4.00 to 1
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Category 4
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2.25% 3.25% 3.00% 4.00%
Less than or equal to
4.00 to 1 and greater
than 3.50 to 1
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Category 5
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2.00% 3.00% 3.00% 4.00%
Less than or equal to
3.50 to 1 and greater
than 3.00 to 1
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Category 6
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1.75% 2.75% 3.00% 4.00%
Less than or equal to
3.00
======================================================================================================
For purposes of the foregoing, (a) the Leverage Ratio shall be determined
as of the end of each fiscal quarter of the Borrower's fiscal year based
upon the Borrower's consolidated financial statements delivered pursuant to
Section 6.01(a) or (b) and (b) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date three Business Days after
delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the
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Leverage Ratio shall be deemed to be in Category 1 above (i) at any time
from January 1, 2002 through and including Xxxxx 00, 0000, (xx) at any time
that an Event of Default has occurred and is continuing (and has not been
waived in accordance with the terms of this Agreement) and (iii) if the
Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 6.01(a) or (b) and/or the related
compliance certificate, during the period from
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the expiration of the time for delivery thereof until such consolidated
financial statements and compliance certificate are so delivered.
Notwithstanding the foregoing, the Applicable Margin with respect to
Incremental Revolving Credit Loans of any Series, shall be 3.25% for ABR
Loans and 4.25% for Eurodollar Loans.
"Interest Payment Date" means (a) with respect to any Syndicated ABR
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Loan, the last Business Day of each calendar month, (b) with respect to any
Eurodollar Loan, the last day of each Interest Period therefor and, in the
case of any Interest Period that is more than one month long, each day
prior to the last day of such Interest Period that occurs at intervals of
one month after the first day of such Interest Period and (c) with respect
to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means (a) for any Borrowing (other than an ABR
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Borrowing), the Interest Period of the Loan or Loans constituting such
Borrowing; and (b) for any Eurodollar Loan, the period commencing on the
date of such Loan and (I) for any Interest Period which commenced prior to
the Amendment No. 4 Effective Date, ending on the numerically corresponding
day in the calendar month that is one, two, three or six months thereafter,
as specified in the applicable Borrowing Request or Interest Election
Request and (II) for any Interest Period to commence on or subsequent to
the Amendment No. 4 Effective Date, ending on the numerically corresponding
day in the calendar month that is one month thereafter; provided that (i)
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if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of
such Interest Period. For purposes hereof, the date of a Loan initially
shall be the date on which such Loan is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Loan.
2.03. Clause (b)(i) of Section 2.04 of the Credit Agreement is hereby
amended by deleting the reference therein to "$10,000,000" and replacing it with
"$2,000,000".
2.04. Clauses (a)(ii) and (a)(iii) of Section 2.09 of the Credit
Agreement are hereby amended by deleting the reference therein to "December 31,
2001" and replacing it with "March 15, 2002".
2.05. Section 6.01 of the Credit Agreement is hereby amended by
relettering clauses (c) through (i) as clauses (d) through (j) and adding a new
clause (c) as follows:
"(c) within 30 days after the end of each month (except with respect
to the month of December, within 45 days after the end of such month), the
unaudited consolidated balance sheets, related statements of operations and
related statements of cash flows of
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the Borrower and its Subsidiaries as of the end of and for such month and
the then elapsed portion of the fiscal year, all certified by a Financial
Officer of the Borrower as presenting fairly in all material respects the
consolidated financial condition and results of operations of the Borrower
and/or its Subsidiaries, as the case may be, in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;"
2.06. Section 6.06 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"SECTION 6.06. Books and Records; Inspection. The Borrower will, and
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will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities. The Borrower
will, and will cause each of its Subsidiaries to permit, (i) any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers, employees and independent
accountants, all at such reasonable times and as often as reasonably
requested (which visits and inspections shall be at the Borrower's sole
expense after the occurrence and during the continuance of any Default or
in the case of any visit or inspection by the Administrative Agent and at
the Lenders' sole expense at any other time) and (ii) upon the request of
the Administrative Agent at any time and at the Borrower's sole expense,
the Administrative Agent or any of its agents or representatives to engage
an auditor to conduct a comprehensive field audit of its books, records,
properties and assets; provided, however, that the Administrative Agent
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shall provide prior notice to the Borrower of the terms of such
engagement."
2.07. Section 7.01 of the Credit Agreement is hereby amended by (x)
inserting the word "and" immediately after clause (b) thereof, (y) deleting the
semi-colon immediately after clause (c) thereof and replacing it with a period
and (z) deleting clauses (d) and (e) thereof in their entirety.
2.08. Section 7.03(b) of the Credit Agreement is hereby amended by
(x) deleting the word "and" after clause (iii) thereof, (y) renumbering clause
(iv) thereof as clause (v) and (z) adding a new clause (iv) to read in its
entirety as follows:
"(iv) the Disposition of assets of the Borrower associated with its
dry wash business at fair market value and for a purchase price not to
exceed $3,000,000; provided that (x) the Net Available Proceeds received by
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the Borrower in connection with such Disposition are used to prepay the
Loans to the extent required by Section 2.10(b)(v) and (y) any non-cash
proceeds received by the Borrower in connection with such Disposition are
pledged pursuant to the Security Agreement (with such changes to reflect
such pledge as the Administrative Agent shall reasonably request) to the
Administrative Agent for the benefit of the Lenders; and"
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2.09. Clause (b) of Section 10.02 of the Credit Agreement is hereby
amended by (x) deleting the "or" after clause (v) thereof, (y) deleting the
period after clause (vi) thereof and replacing it with a semi-colon and (z)
adding new clauses (vii) and (viii) to read as follows:
"(vii) increase the aggregate Commitments which are outstanding on
the Amendment No. 4 Effective Date without the written consent of each
Lender; or
(viii) amend any provision of Section 7.01 without the written
consent of each Lender."
2.10. Clause (iii) of Section 10.03(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(iii) all out-of-pocket expenses incurred by the Administrative
Agent, any Issuing Lender or any Lender, including the fees, charges and
disbursements of (x) any counsel for the Administrative Agent, any Issuing
Lender or any Lender and (y) any financial advisor engaged by the
Administrative Agent on behalf of the Lenders, in connection with the
enforcement or protection of its rights in connection with this Agreement
and the other Credit Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including in connection with any workout, restructuring or negotiations in
respect thereof; provided, however, that the Administrative Agent shall
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provide prior notice to the Borrower of the terms of any engagement of a
financial advisor, and"
Section 3. Waivers. Subject to the satisfaction of the conditions
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specified in Section 5 below and the limitations set forth in Section 6 below,
but with effect on and after the date hereof, each Obligor, each Lender and the
Administrative Agent hereby agree that any Default that has occurred and is
continuing on the date hereof or may hereafter arise as a result of the
Borrower's failure to comply with the requirements of Section 7.09 of the Credit
Agreement is hereby waived, provided that the foregoing waiver shall terminate
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and be of no further force or effect on or after 5:00 p.m., New York City time,
on March 15, 2002.
Section 4. Representations and Warranties. The Borrower represents
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and warrants to the Lenders that (a) the representations and warranties set
forth in Article IV of the Credit Agreement are true and complete on the date
hereof as if made on and as of the date hereof and as if each reference in said
Article IV to "this Agreement" included reference to this Amendment No. 4 and
(b) immediately after giving effect to the waivers set forth in Section 3 above,
no Default shall have occurred and be continuing.
Section 5. Conditions Precedent. The amendments to the Credit
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Agreement set forth in Section 2 above and the waivers set forth in Section 3
above shall become effective, as of the date hereof, upon the satisfaction of
the following conditions precedent:
5.01. Execution by All Parties. This Amendment No. 4 shall have
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been executed and delivered by each of the Obligors, each of the Term Loan
A Lenders, each of the
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Term Loan B Lenders and the Required Lenders (which may include such Term
Loan A Lenders and Term Loan B Lenders).
5.02. Corporate Documents. Delivery to the Administrative Agent of
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certified copies of the charter and by-laws (or equivalent documents) of
each Obligor and of all corporate authority for each Obligor (including
board of director resolutions and evidence of the incumbency of officers
for each Obligor) with respect to the execution, delivery and performance
of this Amendment No. 4 and the Credit Agreement as amended hereby and
extensions of credit under the Credit Agreement as amended hereby and each
other document to be delivered by each Obligor from time to time in
connection with the Credit Agreement as amended hereby (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from each Obligor to the
contrary).
5.03. Opinion of Counsel to the Obligors. A favorable written
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opinion (addressed to the Administrative Agent and the Lenders and dated as
of a date acceptable to the Administrative Agent) of (i) Xxxxxx, Halter &
Xxxxxxxx LLP, counsel for the Obligors, and (ii) such other counsel to one
or more of the Obligors, in each case in form and substance satisfactory to
the Administrative Agent covering such matters relating to the Obligors and
this Amendment No. 4 as the Administrative Agent shall reasonably request
(and each Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
5.04. Other Documents. Such other documents as the Administrative
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Agent or Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to
Chase, may reasonably request.
5.05. Amendment Fee. The Administrative Agent shall have received
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for the account of each Lender that consents to this Amendment No. 4
(evidenced by receipt by the Administrative Agent of an executed
counterpart of this Amendment No. 4) by 5:00 p.m., New York City time, on
December 31, 2001 an amendment fee in an amount equal to 0.25% of the sum
of Revolving Credit Exposures and unused Revolving Credit Commitments,
outstanding A Term Loans, outstanding B Term Loans and Incremental
Revolving Credit Exposures and unused Incremental Revolving Credit
Commitments, if any, of each Lender.
Section 6. Limited Waiver; Reservation of Rights. Except as herein
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provided, the Credit Agreement shall remain unchanged and in full force and
effect; provided that except as expressly provided in Section 3 above, nothing
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herein shall constitute a waiver of, or any agreement to provide a waiver of,
any existing or future Default. Notwithstanding anything contained herein to the
contrary, the Administrative Agent and the Lenders reserve all of its or their
rights, powers, privileges and remedies under or in respect of the Credit
Agreement and the other Credit Documents, at law, in equity or otherwise in
connection with the obligations owing by the Obligors thereunder, and all
collateral security and/or guarantees therefor, all of which are expressly
reserved.
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Section 7. Ratification of Obligations, Etc. By its execution of
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this Amendment No. 4, each of the Obligors (a) ratifies and reaffirms its
obligations under the Credit Agreement (as modified by this Amendment No. 4) and
the other Credit Documents to which it is a party in all respects, and confirms
that each such agreement to which it is a party is valid and enforceable against
such Obligor, (b) waives any defense, right of set-off or claim against the
Administrative Agent, any Lender or their respective affiliates, directors,
officers, employees, agents, attorneys and representatives to or arising under
the Credit Agreement or the other Credit Documents and hereby releases the
Administrative Agent, each Lender and their respective affiliates, directors,
officers, employees, agents, attorneys and representatives from any liability
thereunder or related thereto and (c) agrees that there are no oral agreements
or understandings among such Obligor and the Administrative Agent or any Lender
relating to this Amendment No. 4, the Credit Agreement or any other Credit
Document.
Section 8. Miscellaneous. The Borrower shall pay all reasonable
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expenses incurred by the Administrative Agent, including the reasonable fees,
charges and disbursements of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New
York counsel to Chase, in connection with the preparation, negotiation,
execution and delivery of this Amendment No. 4. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 4 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 4 by signing any such
counterpart. This Amendment No. 4 shall be governed by, and construed in
accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
be duly executed by their respective authorized officers as of the day and year
first above written.
CHART INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
SUBSIDIARY BORROWERS
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CHART HEAT EXCHANGERS LIMITED
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Accounting Officer
CHART-AUSTRALIA PTY, LTD.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Accounting Officer
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SUBSIDIARY GUARANTORS
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CHART HEAT EXCHANGERS LIMITED
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC.,
as its sole general partner
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INTERNATIONAL INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART MANAGEMENT COMPANY, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART LEASING, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART, INC.
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By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INTERNATIONAL HOLDINGS, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART ASIA, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CAIRE INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
GREENVILLE TUBE, LLC
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
COOLTEL, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
NEXGEN FUELING, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
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LENDERS
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JPMORGAN CHASE BANK,
individually and as Administrative Agent
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
NATIONAL CITY BANK
By /s/ Xxxxxxx X. XxXxxx
----------------------------
Name: Xxxxxxx X. XxXxxx
Title: Senior Vice President
BANK ONE, MICHIGAN
By /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: First Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Advisory Investment Corp.
By /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Payson X. Xxxxxxxxx
----------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Duly Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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THE HUNTINGTON NATIONAL BANK
By /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
ENDEAVOUR, LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Managing Director
CITIZENS BANK OF MASSACHUSETTS
By /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ Xxxxxx Xxxxx Xxxxxxxx X. Xxxxx
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Name: Xxxxxx Xxxxx Xxxxxxxx X. Xxxxx
Title: Vice President Senior Vice President
FIRST MERIT BANK N.A.
By /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
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KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
KZH RIVERSIDE LLC
By /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH CYPRESSTREE - 1 LLC
By /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
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