EXHIBIT 10.17.11
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of March 15, 2002 to the Credit
Agreement referred to below, between CHART INDUSTRIES, INC., a Delaware
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Borrower"); the Subsidiary of the Borrower identified under the
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caption "SUBSIDIARY BORROWER" on the signature pages hereto (the "Subsidiary
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Borrower"); each of the Subsidiaries of the Borrower identified under the
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caption "SUBSIDIARY GUARANTORS" on the signature pages hereto (individually, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors" and,
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together with the Borrower and the Subsidiary Borrower, the "Obligors"); each
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of the lenders that is a signatory hereto (individually, a "Lender" and,
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collectively, the "Lenders"); and JPMORGAN CHASE BANK (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
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Agent").
The Borrower, the Subsidiary Borrower, 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"), providing, subject to the terms and conditions
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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 Borrower, 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. 5, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
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conditions 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. 5" means Amendment No. 5 dated as of March 15,
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2002 to this Agreement.
Amendment No. 5
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"Amendment No. 5 Effective Date" means the date as of which
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Amendment No. 5 shall become effective.
"Applicable Margin" means, for any day, with respect to any
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ABR Loan (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:
========================= =================== ================= =================== ===================
Eurodollar
ABR Spread for Spread for
Leverage Ratio: Revolving Credit Revolving
Loans and Term Credit Loans ABR Spread for Eurodollar Spread
Loan A and Term Loan A Term Loan B for Term Loan B
------------------------- ------------------- ----------------- ------------------- -------------------
Category 1
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3.25% 4.25% 3.75% 4.75%
Greater than 6.00 to 1
------------------------- ------------------- ----------------- ------------------- -------------------
Category 2
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3.00% 4.00% 3.50% 4.50%
Less than or equal to
6.00 to 1 and greater
than 5.50 to 1
------------------------- ------------------- ----------------- ------------------- -------------------
Category 3
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2.75% 3.75% 3.25% 4.25%
Less than or equal to
5.50 to 1 and greater
than 4.00 to 1
------------------------- ------------------- ----------------- ------------------- -------------------
Category 4
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2.50% 3.50% 3.25% 4.25%
Less than or equal to
4.00 to 1 and greater
than 3.50 to 1
------------------------- ------------------- ----------------- ------------------- -------------------
Category 5
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2.25% 3.25% 3.25% 4.25%
Less than or equal to
3.50 to 1 and greater
than 3.00 to 1
------------------------- ------------------- ----------------- ------------------- -------------------
Category 6
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2.00% 3.00% 3.25% 4.25%
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 Leverage Ratio shall be deemed to be in
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Category 1 above (i) 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 (ii) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it
pursuant to
Amendment No. 5
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Section 6.01(a) or (b) and/or the related compliance certificate,
during the period from 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
3.50% for ABR Loans and 4.50% for Eurodollar Loans.
"Available Cash" means, on any day, the balance of the funds
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and Permitted Investments held, and deposited pursuant to Section
2.09(b), in the Collateral Account (as defined in the Security
Agreement) on such day.
"Debt Incurrence" means the incurrence of any Indebtedness by
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the Borrower or any Subsidiary Guarantor after the Effective Date,
provided that Debt Incurrence shall not include Indebtedness permitted
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under clauses (a), (b) and (c) of Section 7.01.
"Deferred Term Loan Amortization Amount" means, with respect
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to Term Loan A, $26,682,875, representing that portion of the aggregate
principal installments of such Term Loan due at any time during the
period commencing on March 15, 2002 and ending on March 31, 2003 in
accordance with the scheduled amortization of such Term Loan in effect
immediately prior to Amendment No. 5, as to which, as a result of the
amendments in Section 2.05 of Amendment No. 5, payment shall have been
deferred to the Term Loan A Maturity Date pursuant to Amendment No. 5.
"EBITDAR" means, for any period, the sum, for the Borrower and
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its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following for such period:
(a) net income for such period plus (b) to the extent deducted in
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computing such net income, the sum of (i) income tax expense, plus (ii)
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depreciation and amortization for such period (including amortization
of any goodwill or other intangibles), plus (iii) Interest Expense for
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such period plus (iv) all other non-cash, extraordinary charges plus
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(v) Restructuring Charges for such period minus (c) to the extent added
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in computing such net income, the sum of (i) any gains and losses
attributable to any fixed asset sales and (ii) any non-cash,
extraordinary gains; provided that, without duplication, if during any
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period for which EBITDAR is being determined, the Borrower or any of
its Subsidiaries shall have made any Disposition, EBITDAR shall be
determined for purposes of this Agreement by excluding the EBITDAR of
any business, assets or Person subject to such Disposition (to the
extent not already reflected in the relevant financial statements of
the Borrower) for such period as if such Disposition had been made or
consummated on the first day of such period.
"Excess Cash Flow" means, for any period, (a) EBITDAR for such
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period minus (b) the sum of (i) Capital Expenditures made during such
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period (except for any such Capital Expenditures to the extent financed
with the proceeds of purchase money Indebtedness or Capital Lease
Obligations incurred during such period) plus (ii) the aggregate amount
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of Debt Service for such period (excluding any prepayment made during
such period pursuant to Section 2.10(b)(iv)) plus (iii) the aggregate
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amount of
Amendment No. 5
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income taxes paid in cash by the Borrower and its Subsidiaries during
such fiscal year plus (iv) the aggregate amount of cash dividends paid
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by the Borrower on its common stock during such period under Section
7.05(d) plus (v) the aggregate amount paid by the Borrower during such
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period in respect of the repurchase of its common stock under Section
7.05(c) plus (or minus) (c) an amount equal to the decrease (or
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increase, as the case may be) in Net Working Capital during such
period (to the extent not taken into account in any of the foregoing
clauses) minus (d), for purposes of calculating Excess Cash Flow under
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the first sentence of Section 2.10(b)(iv), an amount equal to 20% of
the excess (if any) of Excess Cash Flow over Forecasted Excess Cash
Flow for such period.
"EYCF Report" has the meaning assigned to such term in Section
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6.13.
"Fixed Charge Coverage Ratio" means, as at any date, the ratio
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of (a) (i) EBITDAR for the period of four consecutive fiscal quarters
ending on or most recently ended prior to such date minus (ii) Capital
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Expenditures for such period to (b) Fixed Charges for such period.
"Forecasted Excess Cash Flow" means, for the period of two
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fiscal quarters ending on each June 30, 2002 and December 31, 2002, the
amount of Excess Cash Flow projected by the Borrower for such period as
set forth in Schedule X.
"Interest Coverage Ratio" means, as at any date of
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determination thereof, the ratio of (a) EBITDAR for the period of four
fiscal quarters ending on or most recently ended prior to such date
(after deducting therefrom any income on Available Cash for such
period) to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum, for the
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Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all
interest in respect of Indebtedness (including the interest component
of any payments in respect of Capital Lease Obligations) accrued or
capitalized during such period (whether or not actually paid during
such period) plus (b) the net amount payable (or minus the net amount
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receivable) under Hedging Agreements relating to interest during such
period (whether or not actually paid or received during such period);
provided that, for any day on which the amount of Available Cash shall
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be positive, interest for such day on a portion of the Revolving Credit
Loans equal to the amount of such Available Cash shall be excluded from
interest for purposes of this definition.
"Leverage Ratio" means, as at any date of determination
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thereof, the ratio of (a) the difference between (i) all Funded
Indebtedness of the Borrower and its Subsidiaries (determined on a
consolidated basis, without duplication, in accordance with GAAP) as at
such date minus (ii) Available Cash as at such date to (b) EBITDAR for
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the period of four fiscal quarters ending on or most recently ended
prior to such date.
"Minimum Prepayment Amount" means (a) for all purposes hereof
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other than Section 6.15, mandatory prepayments made by the Borrower
pursuant to Section 2.10(b)
Amendment No. 5
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after the Amendment No. 5 Effective Date in an aggregate minimum amount
equal to $75,000,000, provided that (i) not more than $37,500,000 of
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such amount may result from Casualty Events and/or Dispositions
pursuant to Section 2.10(b)(i) and 2.10(b)(v), respectively, and (ii)
the sale of the Cryogenic pump business shall count toward the Minimum
Prepayment Amount regardless of whether such sale or the mandatory
prepayment of the Net Cash Proceeds thereof shall be consummated on or
prior to the Amendment No. 5 Effective Date) and (b) for purposes of
Section 6.15, mandatory prepayments made by the Borrower pursuant to
Section 2.10(b) after the Amendment No. 5 Effective Date in an
aggregate minimum amount equal to $50,000,000.
"Permitted Investments" means (a) direct obligations of, or
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obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof
to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year
from the date of acquisition thereof; (b) investments in commercial
paper maturing within 270 days from the date of acquisition thereof and
having, at such date of acquisition, the highest credit rating
obtainable from Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc., or from Xxxxx'x Investors Services, Inc;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000; (d) fully
collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria
described in clause (c) of this definition; and (e) money market mutual
funds whose investment guidelines restrict such funds' investments
primarily to those satisfying the provisions of clauses (a) through (d)
above, and to other investments constituting cash or cash equivalents
under GAAP.
"Permitted Junior Capital Investment" means (a) an Equity
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Issuance consisting of common stock (or warrants to purchase common
stock) of the Borrower, (b) an Equity Issuance consisting of preferred
stock, provided that such preferred stock shall contain terms
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reasonably acceptable to the Administrative Agent, but in no event
(unless the Required Lenders shall otherwise agree) shall contain any
provision providing for mandatory redemption thereof prior to a date
earlier than one year after the Term Loan B Maturity Date) or (c) any
unsecured, subordinated Indebtedness permitted under Section 7.01(d).
"Restructuring Charges" means (a) any and all charges or
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expenses directly related to the closure or partial closure of a
facility or sale of any business unit or product line, including, but
not limited to, employee severance, expenses related to moving of
assets to another facility, inventory and fixed asset write-downs,
lease buyouts, and accelerated warranty liabilities, (b) any and all
fees and expenses incurred by the Borrower in connection with Amendment
No. 5 and in connection with any Debt Incurrences, Equity Issuances or
Dispositions, the Net Available Proceeds of which are
Amendment No. 5
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used to satisfy the Minimum Prepayment Amount, and (c) any and all
costs and expenses incurred in connection with the implementation of
the actions suggested by and taken pursuant to the EYCF Report;
provided that (a) Restructuring Charges incurred on or after January
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1, 2002 shall not exceed $10,000,000 in the aggregate and (b)
Restructuring Charges in respect of obtaining Permitted Junior Capital
Investments shall not exceed $2,000,000 in the aggregate.
"Supplemental Margin" means (a) for each day during the fiscal
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quarter commencing on October 1, 2002 that all or any portion of the
Minimum Prepayment Amount shall not have been paid, 0.25%, and (b)
thereafter, for each day during each subsequent fiscal quarter that all
or any portion of the Minimum Prepayment Amount shall not have been
paid, the sum of (i) the Supplemental Margin in effect prior to the
commencement of such fiscal quarter plus (ii) 0.25%; provided that from
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and after payment in full of the Minimum Prepayment Amount, the
Supplemental Margin shall be zero.
2.03. Section 1.01 of the Credit Agreement is hereby amended
by deleting each of the following definitions in its entirety: "EBIT" and
"EBITDA".
2.04. Section 2.08 of the Credit Agreement is hereby amended
by inserting new clauses (e), (f) and (g) at the end thereof as follows:
"(e) Certain Automatic Reductions of Revolving Credit
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Commitments and Incremental Revolving Credit Commitments. The aggregate
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amount of the Revolving Credit Commitments and the Incremental
Revolving Credit Commitments, as the case may be, shall be
automatically reduced upon any prepayment of Revolving Credit Loans and
Incremental Revolving Credit Loans, as the case may be, pursuant to
Section 2.10(a), and upon any reduction in Revolving Credit Exposure
pursuant to the second sentence of Section 2.10(a) that occurs on the
sixth Business Day following any expiration or termination of a Letter
of Credit, in an amount equal to the amount of such prepayment of
Revolving Credit Loans or such reduction in Revolving Credit Exposure,
as the case may be.
Amendment No. 5
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(f) Scheduled Reductions of Revolving Credit Commitments. The
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aggregate amount of the Revolving Credit Commitments shall be
automatically reduced on each of the reduction dates set forth in
column (A) below to the amount set forth in column (B) below opposite
such reduction date:
(A) (B)
Revolving Credit Commitment
Reduced to the Following
Reduction Date: Amount ($):
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June 30, 2002 49,901,165
September 30, 2002 49,703,495
December 31, 2002 48,966,725
(g) Scheduled Reductions of Incremental Revolving Credit
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Commitments. The aggregate amount of the Incremental Revolving Credit
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Commitments shall be automatically reduced on each of the reduction
dates set forth in column (A) below to the amount set forth in column
(B) below opposite such reduction date:
(A) (B)
Incremental Revolving Credit Commitment
Reduced to the Following
Reduction Date: Amount ($):
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June 30, 2002 9,980,255
September 30, 2002 9,940,765
December 31, 2002 9,793,575
March 31, 2003 0"
Amendment No. 5
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2.05. Clauses (a)(ii), (a)(iii) and (b) of Section 2.09 of the
Credit Agreement are hereby amended in their entirety to read as follows:
"(ii) to the Administrative Agent for account of the Term A
Lenders the outstanding principal amount of the Term Loan A on each
Principal Payment Date set forth below in the aggregate principal
amount set forth opposite such Principal Payment Date (subject to
adjustment pursuant to paragraph (b) of this Section):
Principal Payment Date Amount ($)
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December 31, 1999 2,500,000
March 31, 2000 2,500,000
June 30, 2000 2,500,000
September 30, 2000 2,500,000
December 31, 2000 2,500,000
March 31, 2001 2,500,000
June 30, 2001 5,000,000
September 30, 2001 5,000,000
December 31, 2001 0
March 31, 2002 0
June 30, 2002 197,725
September 30, 2002 395,450
December 31, 2002 1,473,950
March 31, 2003 6,250,000
June 30, 2003 7,500,000
September 30, 2003 7,500,000
December 31, 2003 7,500,000
March 31, 2004 7,500,000
June 30, 2004 8,750,000
September 30, 2004 8,750,000
December 31, 2004 8,750,000
Term Loan A Maturity Date 35,432,875;
Amendment No. 5
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(iii) to the Administrative Agent for account of the Term Loan
B Lenders the outstanding principal amount of the Term Loan B on each
Principal Payment Date set forth below in the aggregate principal
amount set forth opposite such Principal Payment Date (subject to
adjustment pursuant to paragraph (b) of this Section):
Principal Payment Date Amount ($)
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December 31, 1999 312,500
March 31, 2000 312,500
June 30, 2000 301,507
September 30, 2000 301,507
December 31, 2000 301,507
March 31, 2001 301,507
June 30, 2001 301,507
September 30, 2001 301,507
December 31, 2001 0
March 31, 2002 0
June 30, 2002 233,695
September 30, 2002 467,390
December 31, 2002 1,742,090
March 31, 2003 299,090
June 30, 2003 299,090
September 30, 2003 299,090
December 31, 2003 299,090
March 31, 2004 299,090
June 30, 2004 299,090
September 30, 2004 299,090
December 31, 2004 299,090
March 31, 2005 299,090
June 30, 2005 28,263,993
September 30, 2005 28,263,993
December 31, 2005 28,263,993
Term Loan B Maturity Date 28,263,993
Amendment No. 5
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(b) Adjustment of Amortization Schedule, Etc. Any prepayment
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of a Term Loan of either Class shall be applied to reduce ratably the
remaining scheduled installments of such Term Loan. To the extent not
previously paid, all Term Loans of each Class shall be due and payable
on the Term Loan Maturity Date for such Class.
In addition, anything in this Agreement to the contrary
notwithstanding, concurrently with any payment of Term Loans on March
31, 2003, or any payment of Revolving Credit Loans or Incremental
Revolving Credit Loans as a result of a reduction of Revolving Credit
Commitments or Incremental Revolving Credit Commitments on March 31,
2003, the Borrower shall deliver a certificate signed by the President,
a Vice President or a Financial Officer to the effect that on the date
of such payments, and after giving effect thereto, no Default has
occurred and is continuing (it being understood that the determination
of whether or not a breach has occurred in respect of the financial
covenants set forth in Section 7.09 shall be based upon the Borrower's
good faith estimate of the financial results for the relevant fiscal
periods ending on said March 31, 2003, which good faith estimate
together with related computations of such covenants shall be set forth
in such certificate), provided that in the event the Borrower is unable
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(or fails) to deliver such certificate concurrently with such payments,
then, in lieu of the Administrative Agent's remitting to each Lender
the appropriate share of such payments, the Administrative Agent shall
deposit the aggregate amount so received from the Borrower on such date
into the Collateral Account (which amount shall be subject to
application as provided in the Security Agreement)."
2.06. Sections 2.10(a) and 2.10(b) of the Credit Agreement
are hereby amended in their entirety to read as follows:
"(a) Optional Prepayments. The Borrower shall have the right
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at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section, provided that (i)
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the Borrower shall not prepay any Loans of any Class (other than a
prepayment of Revolving Credit Loans concurrently with the issuance of
a Letter of Credit in a face amount equal to such prepayment) unless it
shall concurrently therewith prepay Loans of all Classes in such amount
as shall be necessary so that the Lenders of each Class receive a
prepayment in an amount equal to its Ratable Percentage of the
aggregate prepayment of all Classes and (ii) each prepayment of Term
Loans shall be applied ratably to the remaining scheduled installments
thereof. In addition, on the sixth Business Day following any
expiration or termination of a Letter of Credit (including pursuant to
a drawing thereunder), unless and to the extent that within five
Business Days following such expiration or termination the unused
Revolving Credit Commitment that arises as a consequence thereof shall
have been reutilized (whether through one or more Borrowings or the
issuance of one or more Letters of Credit), the Borrower shall borrow
Revolving Credit Loans and apply the proceeds thereof to the prepayment
of Term Loans, and (whether or not the conditions precedent thereto set
forth in Section 5.02 shall have been satisfied) the Revolving Credit
Lenders shall make Revolving Credit Loans, in such amounts as shall be
necessary so that the Lenders of each Class of Loans receive a
reduction in Revolving Credit Exposure, or prepayment of Term Loans, in
an amount equal to its Ratable Percentage of the aggregate reduction in
Amendment No. 5
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LC Exposure as a result of such expiration or termination (it being understood
that, during any time when an event referred to in clauses (h) or (i) of Article
VIII shall have occurred and be continuing, the Revolving Credit Lenders may,
in lieu of such Borrowing and prepayment purchase participations or other
interests in the Loans of other Classes hereunder in a manner that achieves the
same economic effect of such Borrowing and prepayment).
For purposes hereof, "Ratable Percentage" means, with respect to any Class
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of Lenders, the percentage equivalent of a fraction, the numerator of which is
the aggregate outstanding principal amount of the Loans held by the Lenders of
such Class (or, in the case of Revolving Credit Lenders or Incremental Revolving
Credit Lenders, the greater of the aggregate Revolving Credit Exposure or the
aggregate Incremental Revolving Credit Exposure, as the case may be, and the
aggregate amount of the Revolving Credit Commitments or the Incremental
Revolving Credit Commitments, as the case may be), and the denominator of which
is the sum of (i) the aggregate outstanding principal amount of the Term Loans
held by the Term Loan Lenders plus (ii) the greater of the aggregate Revolving
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Credit Exposure or the aggregate Incremental Revolving Credit Exposure, as the
case may be, and the aggregate amount of the Revolving Credit Commitments or the
Incremental Revolving Credit Commitments, as the case may be.
(b) Mandatory Prepayments
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(i) Casualty Events. Following the receipt by the Borrower of the
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proceeds of insurance, condemnation award or other compensation in respect of
any Casualty Event affecting any property of the Borrower or any of its
Subsidiaries, the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(k)), and/or the Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal to 100% of
the Net Available Proceeds of such Casualty Event to the extent required by the
next sentence of this clause (i), such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in clause (vi)
of this paragraph.
Notwithstanding anything herein or in any Security Document to the
contrary, the Borrower shall be required to make a prepayment in respect of any
Casualty Event pursuant to this clause (i) as follows:
(x) The first $25,000,000 in the aggregate of Net Available Proceeds
of Casualty Events may be used by the Borrower or any of its Subsidiaries
to repair or replace the property affected by the relevant Casualty Event,
provided that all such amounts in excess of $10,000,000 in the aggregate
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shall be deposited by the Borrower or the relevant Subsidiary into the
relevant cash collateral account (in the case of property covered by the
Security Agreement) or the Restoration Account (as defined in the relevant
Mortgage) or similar account (in the case of property covered by a
Mortgage) and shall be disbursed by the Administrative Agent (or mortgagee,
as the case may be) upon request and certification by the Borrower that
such amounts are to be used to repair or replace the property
Amendment No. 5
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affected by the relevant Casualty Event, and provided further, if at any
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time the Borrower determines that it shall not repair or replace such
property, the Borrower shall promptly notify the Administrative Agent
thereof and, within 30 days thereof, prepay the Loans (and/or provide cover
for LC Exposure) and/or the Commitments shall be reduced as provided in the
first paragraph of this clause (i) in an amount equal to that portion of
the Net Available Proceeds so determined not to be used for such repair or
replacement (but in amounts not less than $1,000,000 and in $1,000,000
increments); and
(y) All Net Available Proceeds of Casualty Events in excess of
$25,000,000 in the aggregate shall, unless the Required Lenders shall
approve the use thereof for the purpose of repairing or replacing the
property affected by the relevant Casualty Event, within 30 days after the
Borrower's receipt of such Net Available Proceeds, prepay the Loans (and/or
provide cover for LC Exposure) and/or the Commitments shall be reduced as
provided in the first paragraph of this clause (i) in an amount equal to
such excess (but in amounts not less than $1,000,000 and in $1,000,000
increments).
Nothing in this paragraph shall be deemed to limit any obligation of the
Borrower or any of its Subsidiaries pursuant to any of the Security Documents to
remit to a collateral or similar account maintained by the Administrative Agent
pursuant to any of the Security Documents the proceeds of insurance,
condemnation award or other compensation received in respect of any Casualty
Event.
(ii) Debt Incurrence. Upon any Debt Incurrence after the Effective Date,
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the Borrower shall prepay the Loans (and/or provide cover for LC Exposure as
specified in Section 2.05(k)), and/or the Revolving Credit Commitments and/or
the Incremental Revolving Credit Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and/or reduction to be effected in each case in the
manner and to the extent specified in clause (vi) of this paragraph.
(iii) Equity Issuance. Upon any Equity Issuance after the Effective Date,
---------------
the Borrower shall prepay the Loans (and/or provide cover for LC Exposure as
specified in Section 2.05(k)), and/or the Revolving Credit Commitments and/or
the Incremental Revolving Credit Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and/or reduction to be effected in each case in the
manner and to the extent specified in clause (vi) of this paragraph.
(iv) Excess Cash Flow. Not later than the date 45 days after June 30,
----------------
2002 and December 31, 2002, the Borrower shall prepay the Loans (and/or provide
cover for LC Exposure as specified in Section 2.05(k)), and/or the Revolving
Credit Commitments and/or the Incremental Revolving Credit Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of Excess
Cash Flow for the two fiscal quarter period ending on such date, such prepayment
and/or reduction to be effected in
Amendment No. 5
---------------
-13-
each case in the manner and to the extent specified in clause (vi) of this
paragraph. Not later than the date 90 days after the end of each fiscal year of
the Borrower commencing with the fiscal ending December 31, 2003, the Borrower
shall prepay the Loans (and/or provide cover for LC Exposure as specified in
Section 2.05(k)), and/or the Revolving Credit Commitments and/or the Incremental
Revolving Credit Commitments shall be subject to automatic reduction, in an
aggregate amount equal to (A) 75% of Excess Cash Flow for such fiscal year minus
-----
(B) the aggregate amount of optional prepayments of Term Loans (if any) made
during such fiscal year pursuant to paragraph (a) of this Section and, after the
payment in full of the Term Loans, the aggregate amount of voluntary reductions
of the Revolving Credit Commitments and the Incremental Revolving Credit
Commitments made during such fiscal year pursuant to Section 2.08(b), such
prepayment and/or reduction to be effected in each case in the manner and to the
extent specified in clause (vi) of this paragraph; provided that no such
--------
prepayment under this clause (iv) shall be required with respect to any such
fiscal year if the Leverage Ratio determined as of the last day of such fiscal
year is less than 3.0:1.0 (as set forth in the certificate with respect to such
fiscal year delivered pursuant to Section 6.01(c)).
(v) Sale of Assets. Without limiting the obligation of the Borrower to
--------------
obtain the consent of the Required Lenders pursuant to Section 7.03(b) to any
Disposition not otherwise permitted hereunder, (A) in connection with any
Disposition (herein, the "Current Disposition") prior to the payment in full of
-------------------
the Minimum Prepayment Amount, or (B) at any time after payment in full of the
Minimum Prepayment Amount, in the event that the Net Available Proceeds of any
Current Disposition, and of all prior Dispositions as to which a prepayment has
not yet been made under this paragraph, shall exceed $5,000,000 in the aggregate
(and thereafter in increments of $1,000,000)) then, in each case, no later than
five Business Days prior to the occurrence of the Current Disposition, the
Borrower will deliver to the Lenders a statement, certified by a Financial
Officer of the Borrower, in form and detail satisfactory to the Administrative
Agent, of the amount of the Net Available Proceeds of the Current Disposition
and (in the case of clause (B) above) of all such prior Dispositions and will
prepay the Loans (and/or provide cover for LC Exposure as specified in Section
2.05(k)), and/or the Revolving Credit Commitments and/or the Incremental
Revolving Credit Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 100% of the Net Available Proceeds of the Current
Disposition and (in the case of clause (B) above) such prior Dispositions, such
prepayment and/or reduction to be effected in each case in the manner and to the
extent specified in clause (vi) of this paragraph.
(vi) Application. Prepayments and/or reductions of Commitments pursuant
-----------
to this paragraph shall be applied as follows:
(A) prior to the payment in full of the Minimum Prepayment Amount,
the aggregate amount to be applied to a prepayment and/or commitment
reduction under this Section shall be applied on a pro rata basis
(determined on the basis of, in the case of any Term Loan, the aggregate
outstanding principal thereof and, in the case of the Revolving Credit
Commitments and the Incremental Revolving Credit Commitments, the aggregate
amount of such commitments) among each of
Amendment No. 5
---------------
-14-
the Revolving Credit Commitments, the Incremental Revolving Credit
Commitments, the Term Loan A and the Term Loan B, subject to the
following:
(i) that portion of such amount to be so applied to the
Revolving Credit Commitments shall reduce the aggregate amount of the
Revolving Credit Commitments and shall be applied to reduce the total
Revolving Credit Exposures (if any) in the same amount by, first,
prepaying ratably Swingline Loans and Foreign Currency Credits,
second, prepaying Revolving Credit Loans and third, providing cover
for LC Exposure as specified in Section 2.05(k);
(ii) that portion of such amount to be so applied to the
Incremental Revolving Credit Commitments shall reduce the aggregate
amount of the Incremental Revolving Credit Commitments and shall be
applied to prepay the Incremental Revolving Credit Loans (if any) in
the same amount;
(iii) that portion of such amount to be so applied to Term Loan
A shall be applied to prepay the Term Loan A, first, to the Deferred
Term Loan Amortization Amount and, then, ratably over the remaining
scheduled installments of Term Loan A; and
(iv) that portion of such amount to be so applied to Term Loan B
shall be applied to prepay the Term Loan B, ratably over the remaining
scheduled installments of Term Loan B.
(B) from and after the payment in full of the Minimum Prepayment
Amount:
first, ratably among the Classes of Term Loans in accordance with
-----
the respective sums at such time of the aggregate outstanding
principal amount of Term Loans of such Class (if any), to prepay the
Term Loans of such Class (and, with respect to each Class of Term
Loans, ratably over the remaining scheduled installments thereof), and
second, after the payment in full of the Term Loans and the
------
termination of the Term Loan Commitments, to reduce the aggregate
amount of the Revolving Credit Commitments (and to the extent that,
after giving effect to such reduction, the total Revolving Credit
Exposures would exceed the Revolving Credit Commitments, the Borrower
shall, first, prepay ratably Swingline Loans and Foreign Currency
Credits, second, prepay Revolving Credit Loans and third, provide
cover for LC Exposure as specified in Section 2.05(k) in an aggregate
amount equal to such excess)."
Amendment No. 5
---------------
-15-
2.07. Sections 2.12(a) and 2.12(b) of the Credit Agreement are hereby
amended in their entirety to read as follows:
"(a) ABR Loans. The Loans constituting each ABR Borrowing (including
---------
each Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin plus the Supplemental
----
Margin.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
----------------
Borrowing shall bear interest at a rate per annum equal to the Adjusted
LIBO Rate for the Interest Period for such Borrowing plus the Applicable
----
Margin plus the Supplemental Margin."
----
2.08. Section 6.01 of the Credit Agreement shall be amended by (a)
deleting the word "and" at the end of clause (i) thereof, (b) relettering clause
(j) as clause "(n)" and (c) inserting new clauses (j), (k), (l) and (m) to read
as follows:
"(j) from and after September 30, 2002, on a bi-weekly basis, a
13-week forecast of the cash flows of the Borrower and its Subsidiaries;
(k) without duplication of any information theretofore delivered
under clause (c) of this Section, promptly following the delivery thereof
to the Borrower's senior management, the monthly package of financial and
other information prepared for such senior management;
(l) concurrently with any delivery of financial statements under
clause (c) of this Section, a report of the chief financial officer of the
Borrower describing in reasonable detail the efforts undertaken by the
Borrower and its Subsidiaries during the month to which such financial
statements relates with respect to any Dispositions, Debt Incurrence or
Equity Issuance in connection with raising funding to make the Minimum
Prepayment Amount;
(m) concurrently with any delivery of financial statements under
clause (b) of this Section with respect to each fiscal quarter ending on
June 30th or December 31st of each year, a certificate of a Financial
Officer of the Borrower setting forth reasonably detailed calculations for
purposes of determining the amount (if any) required to be prepaid pursuant
to Section 2.10(b)(iv) with respect to the period of two consecutive fiscal
periods ending on such date; and".
2.09. Section 6.06 of the Credit Agreement shall be amended in its
entirety to read as follows:
"SECTION 6.06. Books and Records; Inspection. The Borrower will, and
-----------------------------
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 (including without
limitation any advisor engaged by the Administrative Agent or its counsel)
or any Lender, upon
Amendment No. 5
---------------
-16-
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
--------- -------
shall provide prior notice to the Borrower of the terms of such
engagement."
2.10. Article VI of the Credit Agreement is hereby amended by
inserting new Sections 6.12, 6.13, 6.14 and 6.15 immediately after Section 6.11
thereof as follows:
"SECTION 6.12. Warrants. (a) The Borrower will issue, dated as of
--------
the respective dates set forth below and actually to be issued not later
than 30 days after each such date, to the Lenders warrants ("Warrants") to
--------
purchase such percentage of common stock of the Borrower (determined on a
fully-diluted basis on such respective dates) as is set forth below:
(i) 2% (after giving effect to the Warrants then to be issued), on
June 28, 2002 (the "First Issuance");
--------------
(ii) in the event that the Minimum Prepayment Amount shall not have
been paid in full on or prior to September 30, 2002, Warrants to purchase
such number of shares of common stock of the Borrower such that after
giving effect to the Warrants issued under the First Issuance and the
Warrants to be issued under the Second Issuance, the Lenders will have been
issued Warrants (including the Warrants issued under the First Issuance) to
purchase 7% in the aggregate of the common stock of the Borrower (such
number of Warrants to be issued being subject to adjustment in accordance
with paragraph (b)(I) of this Section), on September 30, 2002 (the Warrants
to be issued on such date being hereinafter referred to as the "Second
------
Issuance"); and
--------
(iii) in the event that the Minimum Prepayment Amount shall not have
been paid in full on or prior to December 31, 2002, Warrants to purchase
such number of shares of common stock of the Borrower such that after
giving effect to the Warrants issued under the First Issuance and the
Second Issuance and the Warrants to be issued under the Third Issuance, the
Lenders will have been issued Warrants (including the Warrants issued under
the First Issuance and the Second Issuance) to purchase 10% in the
aggregate of the common stock of the Borrower minus a number of such shares
-----
equal to the reduction in the number of shares under the Second Issuance
pursuant to paragraph (b)(I) below (such number of Warrants to be issued
being subject to adjustment in accordance with paragraph (b)(II) of this
Section), on December 31, 2002 (the Warrants to be issued on such date
being hereinafter referred to as the "Third Issuance").
--------------
Amendment No. 5
---------------
-17-
All Warrants shall be issued to the Lenders hereunder for no additional
consideration and shall contain such terms as are set forth in Schedule XI
and shall be issued pursuant to documentation (which shall contain such
terms) satisfactory to the Administrative Agent. The Warrants issued
hereunder will be allocated among the Lenders on a ratable basis based upon
the aggregate principal amount of the Term Loans held by the Lenders and
the aggregate amount of the Commitments of the Lenders, in each case
determined on the respective dates set forth above.
(b) Notwithstanding the requirements of paragraph (a):
(I) with respect to the Second Issuance,
(i) if after March 15, 2002 and prior to September 30, 2002, the
Borrower shall have made prepayments in accordance with Section
2.10(b)(ii) or (iii) from the Net Available Proceeds of Permitted
Junior Capital Investments in an aggregate amount of $50,000,000 or
more, no Warrants will be issued to the Lenders with respect to the
Second Issuance;
(ii) if after March 15, 2002 and prior to September 30, 2002,
the Borrower shall have made prepayments in accordance with Section
2.10(b)(ii) or (iii) from the Net Available Proceeds of Permitted
Junior Capital Investments in an aggregate amount of greater than zero
but less than $50,000,000, the Second Issuance shall be reduced by a
percentage the numerator of which is the aggregate amount of such
Permitted Junior Capital Investments and the denominator of which is
$50,000,000; and
(iii) if after March 15, 2002 and prior to September 30, 2002,
the Borrower shall have made prepayments from the Net Available
Proceeds of Casualty Events and/or Dispositions after the Amendment
No. 5 Effective Date pursuant to Section 2.10(b)(i) and 2.10(b)(v),
respectively, the Second Issuance shall be reduced by a percentage the
numerator of which is the product of 50% multiplied by the aggregate
amount of such Net Available Proceeds of such Casualty Events and
Dispositions and the denominator of which is $75,000,000;
provided that in no event shall the sum of the percentages in clauses (ii)
--------
and (iii) above exceed 100%; and
(II) with respect to the Third Issuance,
(i) if after March 15, 2002 and prior to December 31, 2002, the
Borrower shall have made prepayments in accordance with Section
2.10(b)(ii) or (iii) from the Net Available Proceeds of Permitted
Junior Capital Investments in an aggregate amount of $50,000,000 or
more, no Warrants will be issued to the Lenders with respect to the
Third Issuance;
Amendment No. 5
---------------
-18-
(ii) if after March 15, 2002 and prior to December 31, 2002, the
Borrower shall have made prepayments in accordance with Section
2.10(b)(ii) or (iii) from the Net Available Proceeds of Permitted
Junior Capital Investments in an aggregate amount of greater than zero
but less than $50,000,000, the Third Issuance shall be reduced by a
percentage the numerator of which is the aggregate amount of such
Permitted Junior Capital Investments and the denominator of which is
$50,000,000; and
(iii) if after March 15, 2002 and prior to December 31, 2002,
the Borrower shall have made prepayments from the Net Available
Proceeds of Casualty Events and/or Dispositions after the Amendment
No. 5 Effective Date pursuant to Section 2.10(b)(i) and 2.10(b)(v),
respectively, the Third Issuance shall be reduced by a percentage the
numerator of which is the product of 50% multiplied by the aggregate
amount of such Net Available Proceeds of such Casualty Events and
Dispositions and the denominator of which is $75,000,000;
provided that in no event shall the sum of the percentages in clauses (ii)
--------
and (iii) above exceed 100%.
SECTION 6.13. Ernst & Young Corporate Finance LLC Review. Prior to
------------------------------------------
the Amendment No. 5 Effective Date, the Borrower will engage Ernst & Young
Corporate Finance LLC ("EYCF") to conduct an operational review of the
----
Borrower's businesses and provide its written report (the "EYCF Report") to
-----------
the Borrower upon its timely completion of such review. The Borrower shall
provide the EYCF Report to the Lenders within ten Business Days of the
Borrower's receipt thereof. Prior to delivery of the EYCF Report, the
Borrower will permit, and cause EYCF to permit, any representatives
designated by the Administrative Agent (including any of its advisors) or
any Lender, upon reasonable prior notice, to meet from time to time with
the appropriate personnel of EYCF to discuss the status of such review by
EYCF and to obtain updates of such review and EYCF's findings to date.
Promptly upon issuance of the EYCF Report, the Borrower will cause the
recommendations of the EYCF Report to be considered by the Borrower's board
of directors in light of the Borrower's then existing circumstances, and
the Borrower will take all necessary steps or actions to implement such
recommendations, to the extent authorized by the Borrower's board of
directors. Following delivery of the EYCF Report to the Lenders, the
Borrower shall provide the Administrative Agent and the Lenders with
monthly status reports in writing with respect to the steps undertaken by
the Borrower resulting from the EYCF Report.
SECTION 6.14. Engagement of Investment Advisor. No later than June
--------------------------------
28, 2002, unless the Administrative Agent shall otherwise agree, the
Borrower will engage an investment advisor reasonably satisfactory to the
Administrative Agent to assist it with Dispositions in connection with
making the Minimum Prepayment Amount.
SECTION 6.15. Engagement of Management Consultant. In the event that
-----------------------------------
the Borrower has failed to make the Minimum Prepayment Amount by December
31, 2002, the Borrower will retain a management consultant (the "Management
Consultant") by no
Amendment No. 5
---------------
-19-
later than January 31, 2003. Both the Management Consultant and the scope
of its engagement will be subject to the approval and satisfaction, which
shall not be unreasonably withheld, of the Administrative Agent and the
Required Lenders, which approval or non-approval shall be provided by no
later than January 31, 2003. The Borrower agrees to fully cooperate with
the Management Consultant and shall authorize the Management Consultant to
provide such information and reports with respect to the financial
condition, business, assets, liabilities and prospects of the Borrower and
its Subsidiaries as reasonably requested by the Administrative Agent or any
Lender from time to time. All fees and expenses of the Management
Consultant shall be the sole responsibility of the Borrower and in no event
shall the Administrative Agent or any Lender have any liability or
responsibility for the payment of any such fees or expenses, nor shall the
Administrative Agent or any Lender have any obligation or liability to the
Borrower or any other Person by reason of any acts or omissions of the
Management Consultant."
2.11. Section 7.01 of the Credit Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (b) thereof, (b) deleting the
period at the end of clause (c) thereof and replacing it with a semi-colon
followed by the word "and" and (c) inserting immediately following said clause
(c), a new clause (d) to read as follows:
"(d) unsecured Indebtedness that is subordinated in right of payment
to the payment of the obligations of the Obligors hereunder (and any other
obligations constituting "Secured Obligations" under the Security
Documents) on terms acceptable to the Required Lenders and having such
other terms and conditions as the Required Lenders shall have approved in
writing."
2.12. Section 7.03(b) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(b) Dispositions. The Borrower will not, nor will it permit any of
------------
its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of
any part of its business or property, whether now owned or hereafter
acquired including receivables and leasehold interests, except:
(i) the disposition of any inventory or other property in the
ordinary course of business and on ordinary business terms;
(ii) the disposition of obsolete or worn-out property, tools or
equipment no longer used or useful in its business so long as the
amount thereof sold in any fiscal year by the Borrower and its
Subsidiaries shall not have an aggregate fair market value in excess
of $1,000,000;
(iii) any Subsidiary of the Borrower may sell, transfer, lease
or otherwise dispose of its assets to the Borrower or to another
Subsidiary, provided that the aggregate fair market value of assets
--------
that may be so sold, transferred, leased or
Amendment No. 5
---------------
-20-
disposed of to Subsidiaries that are not Subsidiary Guarantors shall
not exceed $5,000,000;
(iv) the Disposition of assets associated with the cryogenic
pump business of the Borrower and its Subsidiaries at fair market
value; provided that the proceeds from such Disposition are used to
--------
prepay the Loans to the extent required by Section 2.10(b)(v);
and
(v) the conveyance, sale, lease, transfer or other disposition
of assets by the Borrower or any of its Subsidiaries with the prior
approval of the Required Lenders (such approval not to be unreasonably
withheld); provided that the proceeds from any such conveyance, sale,
--------
lease, transfer or other disposition are used to prepay the Loans to
the extent required by Section 2.10(b)(v)."
2.13. Section 7.09 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"SECTION 7.09. Certain Financial Covenants.
---------------------------
(a) Leverage Ratio. The Borrower will not permit the Leverage Ratio
--------------
to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From January 1, 2002
through March 31, 2002 9.00:1.00
From April 1, 2002
through June 30, 2002 9.00:1.00
From July 1, 2002
through September 30, 2002 8.75:1.00
From October 1, 2002
through December 31, 2002 7.25:1.00
From January 1, 2003
through March 30, 2003 7.25:1.00
From March 31, 2003 and 2.50:1.00
thereafter
Amendment No. 5
---------------
-21-
(b) Interest Coverage Ratio. The Borrower will not permit the
-----------------------
Interest Coverage Ratio to be less than the following respective ratios
as at the last day of any fiscal quarter ending during the following
respective periods:
Period Ratio
------ -----
From January 1, 2002
through March 31, 2002 1.50:1.00
From April 1, 2002
through June 30, 2002 1.50:1.00
From July 1, 2002
through September 30, 2002 1.75:1.00
From October 1, 2002
through December 31, 2002 2.00:1.00
From January 1, 2003 through 3.50:1.00
December 31, 2003
From January 1, 2004 through 3.75:1.00
December 31, 2005
From January 1, 2006 and 4.00:1.00
thereafter
(c) Fixed Charge Coverage Ratio. The Borrower will not permit
---------------------------
the Fixed Charge Coverage Ratio to be less than the following respective ratios
as of the last day of any fiscal quarter ending during the following respective
periods:
Period Ratio
------ -----
From January 1, 2002
through March 31, 2002 0.75:1.00
From April 1, 2002
through June 30, 2002 0.75:1.00
From July 1, 2002
through December 31, 2002 1.00:1.00
From January 1, 2003
through March 30, 2003 1.00:1.00
Amendment No. 5
---------------
-22-
From March 31, 2003 and 1.25:1.00
thereafter
(d) Net Worth. The Borrower will not permit its Net Worth to
---------
be less than the sum of (a) $57,500,000 plus (b) 50% of net income (if
positive) of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) for each fiscal quarter
commencing with the fiscal quarter ending June 30, 2000 minus (c) the
-----
aggregate amount of any write-downs of goodwill taken subsequent to
August 24, 1999 but not exceeding $10,000,000 minus (d) the aggregate
-----
amount of foreign currency translation losses, offset by any
translation gains, subsequent to March 31, 2000, but not exceeding
$10,000,000 minus (e) any reduction of Net Worth as a result of the
-----
Restructuring Charges minus (f) $3,500,000.
-----
(e) Minimum EBITDAR. The Borrower will not permit its EBITDAR
---------------
for any fiscal quarter ending on the dates set forth below to be less
than the respective amounts set forth opposite such fiscal quarter:
Fiscal Quarter ending Amount
--------------------- ------
March 31, 2002 $4,500,000
June 30, 2002 $6,600,000
September 30, 2002 $9,600,000
December 31, 2002 $10,000,000
Upon the consummation of any Disposition by the Borrower or any of its
Subsidiaries, the ratios and levels required to be complied with under
the covenants contained in this Section 7.09 will be amended to reflect
the pro forma effect of such Disposition in a manner reasonably
acceptable to the Borrower, the Administrative Agent and the financial
advisor engaged by counsel to the Administrative Agent."
2.14. Section 8(d) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Sections 2.09(b),
6.02(a), 6.03 (with respect to the Borrower's existence), 6.08, 6.10,
6.12, 6.13 or 6.14 or in Article VII or any Obligor shall default in
the performance of any of its obligations contained in Section 4.02 or
5.02 of the Security Agreement or any provisions of the Mortgages;"
2.15. Section 10.02(b)(viii) of the Credit Agreement is
hereby amended to read in its entirety as follows:
Amendment No. 5
---------------
-23-
"(viii) waive any prepayment or any Commitment reduction
required by, or amend any provisions of, Section 2.10(a) or (b), or
waive or amend any of the provisions of Section 6.12 or 7.09(a) (or any
defined terms as used in any of the foregoing Sections), without the
written consent of each Lender."
2.16. Section 10.03(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(a) Costs and Expenses. The Borrower shall pay (i) all
------------------
reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement and the other Credit
Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by each Issuing Lender in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by
any financial advisor engaged by the Administrative Agent or its
counsel in connection with this Agreement, provided that the
--------
Administrative Agent shall provide prior notice to the Borrower of the
terms of any engagement of a financial advisor, (iv) 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 such financial advisor, 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 or in connection with the bankruptcy, insolvency or
reorganization with respect to any Obligor, and (v) and all costs,
expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security
interest contemplated by any Security Document or any other document
referred to therein."
2.17. A new Schedule X (Forecasted Excess Cash Flow) will be
added to the Credit Agreement in the form of the Schedule X attached to this
Amendment No. 5.
2.18. A new Schedule XI (Warrants) will be added to the
Credit Agreement in the form of the Schedule XI attached to this Amendment
No. 5.
Section 3. Extensions and Waivers. Subject to the limitations
----------------------
set forth in Section 6 of this Amendment No. 5, with effect on and after the
date hereof upon satisfaction of the conditions set forth in Section 5.01, 5.02
and 5.06 of this Amendment No. 5, each Lender hereby (a) agrees to extend (x)
the date for payment of principal in respect of the Term Loans due on March 15,
2002 and (y) the Incremental Revolving Credit Commitment Termination Date to the
earlier of (i) the date on which all of the conditions precedent in Section 5 of
this Amendment No. 5 are satisfied or (ii) March 29, 2002 and (b) waives any
Default that has occurred and is
Amendment No. 5
---------------
-24-
continuing on the date hereof or may hereafter arise as a result of the
expiration of the waivers and the amendments contained in Amendment No. 4 dated
as of December 31, 2001 to the Credit Agreement and in each of the Amendment
Nos. 3 to the Incremental Revolving Credit Agreements dated as of December
31, 2001, provided that this Section 3 shall terminate and be of no further
--------
force or effect on or after 5:00 p.m., New York City time, on March 29, 2002 if
all of the conditions precedents contained in Section 5 of this Amendment No. 5
are not satisfied by such date.
Section 4. Representations and Warranties. The Borrower
------------------------------
represents 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. 5 and (b) immediately after giving effect to the waivers set forth
in Section 3 of this Amendment No. 5, no Default shall have occurred and be
continuing.
Section 5. Conditions Precedent. The amendments to the
--------------------
Credit Agreement set forth in Section 2 of this Amendment No. 5, and (subject
to the terms of Section 3 of this Amendment No. 5) the waivers set forth in
said Section 3, 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. 5 shall
------------------------
have been executed and delivered by each of the Obligors and each of the
Lenders.
5.02. Amendments No. 3 to the Incremental Revolving Credit
----------------------------------------------------
Agreements. Amendment No. 3 to each of the Incremental Revolving Credit
----------
Agreements, in substantially the form of Exhibit A to this Amendment No. 5
shall have been executed and delivered by each of the Obligors and each of the
Incremental Revolving Credit Lenders.
5.03. Corporate Documents. Delivery to the Administrative
-------------------
Agent of 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. 5 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).
5.04. Opinion of Counsel to the Obligors. A favorable written
----------------------------------
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, this Amendment No. 5 and the Credit
Agreement as the Administrative
Amendment No. 5
---------------
-25-
Agent shall reasonably request (and each Obligor hereby instructs such
counsel to deliver such opinion to the Lenders and the Administrative
Agent).
5.05. Collateral. Delivery to the Administrative Agent of a
----------
fully completed perfection certificate in form and substance
satisfactory to the Administrative Agent, and the taking of all action
in connection with the creation of first perfected security interests
in the Collateral as reasonably requested by the Administrative Agent.
5.06. Amendment Fee. The Administrative Agent shall have
-------------
received for the account of each Lender an amendment fee in an amount
equal to 0.50% 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.
5.07. Fees and Expenses. Evidence satisfactory to the
-----------------
Administrative Agent that the Borrower shall have paid all fees and
expenses of the Administrative Agent incurred in connection this
Amendment No. 5 and the Credit Agreement, including without limitation
fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP and FTI
Xxxxxxxx & Xxxxx, for which written statements have been delivered to
the Borrower.
5.08. Other Documents. Such other documents as the
---------------
Administrative Agent or Milbank, Tweed, Xxxxxx & XxXxxx LLP, special
New York counsel to JPMorgan Chase, may reasonably request prior to the
satisfaction of the conditions precedent specified in the foregoing
provisions of this Section 5.
Section 6. Limited Waiver; Reservation of Rights. Except as
-------------------------------------
herein provided, the Credit Agreement shall remain unchanged and in full force
and effect; provided that except as expressly provided in Section 3 of this
--------
Amendment No. 5, nothing 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 (except as provided in the immediately
preceding sentence), 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. This Amendment No. 5 shall not be deemed or otherwise construed: to be
a commitment or any other undertaking or expression of any willingness to engage
in any further discussion with the Borrower or any other person, firm or
corporation with respect to any waiver, amendment, modification or any other
change to the Credit Agreement or the other Credit Documents or any rights or
remedies arising in favor of the Lenders or the Administrative Agent, or any of
them, under or with respect to any such documents; or to be a waiver of, or
consent to or a modification or amendment of, any other term or condition of any
other agreement by and among the Borrower, on the one hand, and the
Administrative Agent or any other Lender, on the other hand. Neither the
requirements of good faith and fair dealing nor any other theory, concept or
argument shall require any Lender to impart upon the Borrower any further or
greater benefits; to suffer any prejudice or impairment of any kind whatsoever;
or to tolerate any noncompliance with this Amendment No. 5 and the other Credit
Documents, because each
Amendment No. 5
---------------
-26-
Lender has bargained for and given valuable consideration for this Amendment
No. 5 and the other Credit Documents and its creation of express, explicit and
objective limits of what benefits each Lender is willing to provide to the
Borrower, and what, in return, the Borrower is required to provide to each
Lender. This Amendment No. 5 and the other Credit Documents provide a clear
statement of each Lender's requirements and obligations and creates an agreed
upon standard of performance upon which each Lender is entitled to rely in
exercising and enforcing its respective remedies under the Credit Agreement and
the other Credit Documents.
Section 7. Ratification of Obligations, Etc. By its execution
--------------------------------
of this Amendment No. 5, each of the Obligors (a) ratifies and reaffirms its
obligations under the Credit Agreement (as modified by this Amendment No. 5) 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 and (b) agrees that there are no oral agreements or understandings
among such Obligor and the Administrative Agent or any Lender relating to this
Amendment No. 5, the Credit Agreement or any other Credit Document.
Section 8. Acknowledgment and Release. (a) Each of the
--------------------------
Obligors acknowledges that neither the Administrative Agent nor any Lender has
at any time directed or participated in any aspect of the management of the
Obligors or any of their respective Affiliates or the conduct of the businesses
of the Obligors, or any of their respective Affiliates, and the Obligors, and
any of their respective Affiliates, have made all of their respective business
decisions independently of the Administrative Agent or any Lender.
Notwithstanding any other provision of this Amendment No. 5 or the Credit
Agreement, or any other contract or instrument between the Obligors, or any of
their respective Affiliates, on the one hand, and the Administrative Agent and
the Lenders, or any of them, on the other hand: (i) the relationship between the
Administrative Agent or any Lender, on the one hand, and each of the Obligors,
or any of their respective Affiliates, on the other hand, shall be limited to
the relationship of a lender to a borrower in a commercial loan transaction;
(ii) neither the Administrative Agent nor any Lender is or shall be construed as
a partner, joint venturer, alter-ego, manager, controlling person or other
business associate or participant of any kind of the Obligors, or any of their
respective Affiliates (or any other Person), and neither the Administrative
Agent nor any Lender intends to assume any such status at any time; and (iii)
neither the Administrative Agent nor any Lender shall be deemed responsible for
(or a participant in) any acts, omissions or decisions of the Obligors, or any
of their respective Affiliates, or any other Lender or, in the case of Lenders,
the Administrative Agent.
(b) Each of the Obligors further acknowledge and agree that
they have no claims, demands, damages, suits, cross complaints, counterclaims,
conditions, causes of action, debts, offsets, disgorgements or assertions of any
kind or nature whatsoever, whether known or unknown, and whenever or however
arising that can be asserted to reduce or eliminate all or any part of their
respective liability to repay all amounts owed under the Credit Documents, or to
seek any affirmative relief or damages of any kind or nature from the
Administrative Agent or Lenders, or any of them, that arises out of or relates
to any Prior Event (the "Claims"), and to the extent any such Claims exist, they
------
are fully and forever released as provided in clause (c) below. As used herein
the term "Prior Event" means any transaction, event, circumstances, action,
-----------
failure to act or occurrence of any sort or type, whether known or unknown,
which occurred,
Amendment No. 5
---------------
-27-
existed, was taken, permitted or begun prior to the execution of this Amendment
No. 5 or occurred, existed, was taken, permitted or begun in accordance with,
pursuant to or by virtue of any terms of this Amendment No. 5, the Credit
Agreement, the other Credit Documents, the transactions referred to herein
and/or therein, or oral or written agreement relating to any of the foregoing,
including without limitation any approval or acceptance given or denied.
(c) Each of the Obligors on behalf of itself, and any Person
claiming by, through, or under any of the Obligors, (each a "Releasing Party"
---------------
and collectively the "Releasing Parties") hereby releases, remises, waives and
-----------------
forever discharges the Administrative Agent, the Lenders, and any or all of the
Administrative Agents' or Lenders' subsidiaries, Affiliates, directors,
officers, employees, agents, attorneys, financial advisors, representatives,
successors and assigns, from any and all Claims. This section shall survive the
termination of this Amendment No. 5 or any other Loan Document. Each Releasing
Party has been advised by counsel with respect to the release contained in this
Section 8. Each Releasing Party hereby affirms its intent to waive unknown
claims and to waive any statutory protection available in any applicable
jurisdiction with respect thereto.
Section 9. Miscellaneous. The Borrower shall pay all
-------------
reasonable expenses incurred by the Administrative Agent,
including the reasonable fees, charges and disbursements of (x) Milbank, Tweed,
Xxxxxx & XxXxxx LLP, special New York counsel to Chase, in connection with the
preparation, negotiation, execution and delivery of this Amendment No. 5 and
(y) FTI Xxxxxxxx & Xxxxx, the financial advisor engaged by such counsel in
connection with this Amendment No. 5 and the Credit Agreement. Except as herein
provided, the Credit Agreement shall remain unchanged and in full force and
effect. This Amendment No. 5 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. 5 by signing any
such counterpart. This Amendment No. 5 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 5
---------------
-28-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 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
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial
Officer and
Treasurer
SUBSIDIARY BORROWER
-------------------
CHART HEAT EXCHANGERS LIMITED
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
Amendment No. 5
---------------
-29-
SUBSIDIARY GUARANTORS
---------------------
CHART HEAT EXCHANGERS LIMITED
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC.,
as its sole general partner
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INTERNATIONAL INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART MANAGEMENT COMPANY, INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
Amendment No. 5
---------------
-30-
CHART LEASING, INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART, INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART INTERNATIONAL HOLDINGS, INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CHART ASIA, INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
CAIRE INC.
By /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
Amendment No. 5
---------------
- 31 -
COOLTEL, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
NEXGEN FUELING, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
GREENVILLE TUBE, LLC
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
Amendment No. 5
---------------
- 32 -
LENDERS
-------
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By /s/ Xxxxx X. Xxxxx
--------------------------------
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/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Advisory Investment Corp.
By /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxx
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
Amendment No. 5
---------------
- 33 -
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: AVP
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Duly Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Amendment No. 5
---------------
- 34 -
THE HUNTINGTON NATIONAL BANK
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
ENDEAVOUR, LLC
By: PPM America, Inc. attorney in fact
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: 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 Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
By /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Associate
FIRST MERIT BANK N.A.
By /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Amendment No. 5
---------------
- 35 -
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
KZH RIVERSIDE LLC
By /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CYPRESSTREE - 1 LLC
By /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
Amendment No. 5
---------------
SCHEDULE X
Forecasted Excess Cash Flow
---------------------------
January 1 - June 30, 2002 $ 5,792,000
July 1, 2002 - December 31, 2002 $ 6,385,000
Amendment No. 5
---------------
SCHEDULE XI
Warrants
--------
Issuer: Chart Industries, Inc. (the "Issuer").
Warrants: Warrants to purchase the percentage specified in Section
6.12 of (the Credit Agreement of the fully diluted common
stock of the Issuer (the "Warrant Stock").
Exercise Period: At any time prior to the third anniversary of the date of
issuance of the Warrants (the "Issuance Date"), in whole or
in part.
Purchase Price: The Warrants will be issued to the Lenders (or their
respective designees), including the Incremental Revolving
Credit Lenders, for no additional consideration, to be
allocated among the Lenders on a ratable basis based upon
the aggregate principal amount of the Term Loans held by the
Lenders and the aggregate amount of the Commitments of the
Lenders on the relevant Issuance Date.
Exercise Price: A price equal to the average closing price of the Issuer's
common stock on the New York Stock Exchange over the 10
consecutive trading days prior to the respective Issuance
Date.
Payment of
Exercise Price: Cash equal to the Exercise Price or surrender of Warrants
for an amount of common stock having a market price equal to
the Exercise Price or tender of Loans having a principal
amount equal to the Exercise Price.
Anti-Dilution
Provisions: Customary anti-dilution protections with respect to stock
splits and combinations, stock dividends, distributions,
merger, consolidations or reorganization. In addition,
customary anti-dilution protection for below market sales of
securities (determined on a weighted-average basis), subject
to customary exceptions to be agreed including securities
issued upon exercise or conversion of outstanding derivative
or convertible securities, future issuances under employee
benefit plans at or above then current market price and the
issuance of common stock by the Issuer as consideration for
any acquisition.
Registration Rights:Prior to the date two years after the expiration of the
Warrants, the holders of Warrants and/or Warrant Stock will
have the following registration rights with respect to the
Warrant Stock on customary terms:
(i) the holders shall be entitled to three demand
registrations (on form S-3 or other appropriate available
forms), each such demand to be initiated upon
Amendment No. 5
---------------
- 2 -
request of holders of at least 25% of the common stock
issuable upon exercise of the Warrants, and
(ii) unlimited piggyback rights in all primary offerings
and all other secondary offerings (subject to customary
underwriter cutbacks).
The Issuer will pay all reasonable expenses (including the
fees and expenses of one counsel for such holders (selected
by holders of a majority of Warrant Stock being registered
in the relevant registration), but excluding underwriting
discounts and selling commissions) of the holders of
Warrant Stock in all demand and piggyback registrations.
The Issuer will not grant other registration rights, other
than rights which are pari passu or subordinated to the
rights of the holders of Warrant Stock.
Tag-Along Rights: If any stockholder holding at least 20% of the aggregate
issued and outstanding common stock of the Issuer proposes
to sell beneficial ownership of any such stock to an
unaffiliated third party, the holders of Warrants and
Warrant Stock will have the right to participate, pro rata,
in that sale at the same price and upon the same terms
(except that such holders will not be required to make any
representations or warranties other than as to their
ownership of the Warrants or Warrant Stock and
authorization and ability to sell). Tag-along rights will
expire on the third anniversary of the respective Issuance
Date of the Warrants and will be subject to certain
customary exclusions, including (i) sales in connection
with any tender offer or other disposition of stock of the
Issuer in connection with any business combination
involving the Issuer in which stockholders generally have
the right to participate, (ii) the sale of not more than
10% of the issued and outstanding common stock of the
Issuer (in one transaction or a series of related
transactions) and (iii) transfers by gift, to related
trusts and family partnerships for estate planning
purposes, by will or as a result of inheritance laws.
Documentation: The terms with respect to the Warrants will be set forth in
mutually acceptable definitive documentation containing
other terms and provisions customary for a transaction of
this type.
Transferability: The Warrants and Warrant Stock shall be freely transferable
in whole or in part, subject only to compliance with
applicable securities laws, provided that the registration
--------
rights and tag-along rights described above can be
transferred only in connection with a transfer of rights
under the warrant agreement.
Governing Law
and Forum: State of New York.
Amendment No. 5
---------------
EXHIBIT A
[Forms of Amendment Nos. 3 to Incremental Revolving Credit Agreements]
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of March 15, 2002 (this "Amendment No. 3")
---------------
to the Series 1 Incremental Revolving Credit Agreement referred to below,
between CHART INDUSTRIES, INC. (the "Borrower"); the SUBSIDIARY BORROWER party
--------
hereto; each of the SUBSIDIARY GUARANTORS party hereto; and the SERIES 1
LENDERS party hereto.
The Borrower, the Subsidiary Borrower, the Subsidiary Guarantors,
each of the Series 1 Lenders and the Administrative Agent are parties to (i) a
Series 1 Incremental Revolving Credit Agreement dated as of November 29, 2000
(the "Series 1 Incremental Revolving Credit Agreement") and (ii) a Credit
-----------------------------------------------
Agreement dated as of April 12, 1999 (as heretofore modified and supplemented
and in effect on the date hereof, the "Credit Agreement"). The Borrower, the
----------------
Subsidiary Borrower, the Subsidiary Guarantors, the Series 1 Lenders and the
Administrative Agent wish to amend the Series 1 Incremental Revolving Credit
Agreement in certain respects, and accordingly, the parties hereto hereby agree
as follows:
Section 1. Definitions. Except as otherwise defined in this
-----------
Amendment No. 3, terms defined in the Credit Agreement and the Series 1
Incremental Revolving Credit Agreement are used herein as defined
therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
----------
precedent specified in Section 4, but effective as of the date hereof, the
Series 1 Incremental Revolving Credit Agreement shall be amended as follows:
2.01. References in the Series 1 Incremental Revolving Credit
Agreement (including references to the Series 1 Incremental Revolving 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 Series 1 Incremental Revolving Credit Agreement as amended
hereby.
2.02. The definition of "Series 1 Commitment Termination Date" in
Article I of the Series 1 Incremental Revolving Credit Agreement is hereby
amended to read in its entirety as follows:
"Series 1 Commitment Termination Date" means March 31, 2003.
------------------------------------
Section 3. Representations and Warranties. The Borrower represents
------------------------------
and warrants to the Series 1 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. 3 and (b) no Default shall have occurred and be
continuing.
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 2 -
Section 4. Conditions Precedent. The amendments to the Series 1
--------------------
Incremental Revolving Credit Agreement set forth in Section 2 shall become
effective, as of the date hereof, upon the receipt by the Administrative Agent
(x) of counterparts of this Amendment No. 3, duly executed and delivered by
each of the Obligors and the Series 1 Lenders and (y) for the account of each
Lender that consents to this Amendment No. 3 of an amendment fee in an amount
equal to 0.50% of the sum of the Incremental Revolving Credit Exposures and
unused Incremental Revolving Credit Commitments, if any, of each Lender.
Section 5. Miscellaneous. The Borrower shall pay all reasonable
-------------
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. 3. Except as herein provided, the
Series 1 Incremental Revolving Credit Agreement shall remain unchanged and in
full force and effect. This Amendment No. 3 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. 3 by signing any such counterpart. This Amendment No. 3 shall be governed
by, and construed in accordance with, the law of the State of New York.
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 3 to be duly executed by their respective authorized officers as of the day
and year first above written.
CHART INDUSTRIES, INC.
By_________________________
Name:
Title:
SUBSIDIARY BORROWER
-------------------
CHART HEAT EXCHANGERS LIMITED
By_________________________
Name:
Title:
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 4 -
SUBSIDIARY GUARANTORS
---------------------
CHART HEAT EXCHANGERS LIMITED
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC.,
as its sole general partner
By_________________________
Name:
Title:
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By_________________________
Name:
Title:
CHART INTERNATIONAL INC.
By_________________________
Name:
Title:
CHART MANAGEMENT COMPANY, INC.
By_________________________
Name:
Title:
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 5 -
CHART LEASING, INC.
By ________________________
Name:
Title:
CHART, INC.
By ________________________
Name:
Title:
CHART INTERNATIONAL HOLDINGS, INC.
By ________________________
Name:
Title:
CHART ASIA, INC.
By ________________________
Name:
Title:
CAIRE INC.
By ________________________
Name:
Title:
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 6 -
COOLTEL, INC.
By ________________________
Name:
Title:
NEXGEN FUELING, INC.
By ________________________
Name:
Title:
GREENVILLE TUBE, LLC
By ________________________
Name:
Title:
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
- 7 -
SERIES 1 LENDERS
----------------
JPMORGAN CHASE BANK
By ________________________
Name:
Title:
NATIONAL CITY BANK
By ________________________
Name:
Title:
BANK ONE, MICHIGAN
By ________________________
Name:
Title:
Amendment No. 3 to Series 1 Incremental Revolving Credit Agreement
------------------------------------------------------------------
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of March 15, 2002 (this "Amendment No. 3")
---------------
to the Series 2 Incremental Revolving Credit Agreement referred to below,
between CHART INDUSTRIES, INC. (the "Borrower"); the SUBSIDIARY BORROWER party
--------
hereto; each of the SUBSIDIARY GUARANTORS party hereto; and the SERIES 2
LENDERS party hereto.
The Borrower, the Subsidiary Borrower, the Subsidiary Guarantors,
each of the Series 2 Lenders and the Administrative Agent are parties to (i) a
Series 2 Incremental Revolving Credit Agreement dated as of April 17, 2001 (the
"Series 2 Incremental Revolving Credit Agreement") and (ii) a Credit Agreement
-----------------------------------------------
dated as of April 12, 1999 (as heretofore modified and supplemented and in
effect on the date hereof, the "Credit Agreement"). The Borrower, the
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Subsidiary Borrower, the Subsidiary Guarantors, the Series 2 Lenders and the
Administrative Agent wish to amend the Series 2 Incremental Revolving 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. 3, terms defined in the Credit Agreement and the Series 2
Incremental Revolving 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 4, but effective as of the date hereof, the
Series 2 Incremental Revolving Credit Agreement shall be amended as follows:
2.01. References in the Series 2 Incremental Revolving Credit
Agreement (including references to the Series 2 Incremental Revolving 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 Series 2 Incremental Revolving Credit Agreement as amended
hereby.
2.02. The definition of "Series 2 Commitment Termination Date" in
Article I of the Series 2 Incremental Revolving Credit Agreement is hereby
amended to read in its entirety as follows:
"Series 2 Commitment Termination Date" means March 31, 2003.
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Section 3. Representations and Warranties. The Borrower represents
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and warrants to the Series 2 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. 3 and (b) no Default shall have occurred and be continuing.
Section 4. Conditions Precedent. The amendments to the Series 2
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Incremental Revolving Credit Agreement set forth in Section 2 shall become
effective, as of the date hereof, upon the receipt by the Administrative Agent
(x) of counterparts of this Amendment No. 3, duly
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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executed and delivered by each of the Obligors and the Series 2 Lenders and (y)
for the account of each Lender that consents to this Amendment No. 3 of an
amendment fee in an amount equal to 0.50% of the sum of the Incremental
Revolving Credit Exposures and unused Incremental Revolving Credit Commitments,
if any, of each Lender.
Section 5. 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. 3. Except as herein provided, the
Series 2 Incremental Revolving Credit Agreement shall remain unchanged and in
full force and effect. This Amendment No. 3 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. 3 by signing any such counterpart. This Amendment No. 3 shall be governed
by, and construed in accordance with, the law of the State of New York.
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 3 to be duly executed by their respective authorized officers as of the day
and year first above written.
CHART INDUSTRIES, INC.
By ________________________
Name:
Title:
SUBSIDIARY BORROWER
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CHART HEAT EXCHANGERS LIMITED
By ________________________
Name:
Title:
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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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 ________________________
Name:
Title:
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By ________________________
Name:
Title:
CHART INTERNATIONAL INC.
By ________________________
Name:
Title:
CHART MANAGEMENT COMPANY, INC.
By ________________________
Name:
Title:
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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CHART LEASING, INC.
By ________________________
Name:
Title:
CHART, INC.
By ________________________
Name:
Title:
CHART INTERNATIONAL HOLDINGS, INC.
By ________________________
Name:
Title:
CHART ASIA, INC.
By ________________________
Name:
Title:
CAIRE INC.
By ________________________
Name:
Title:
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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COOLTEL, INC.
By ________________________
Name:
Title:
NEXGEN FUELING, INC.
By ________________________
Name:
Title:
GREENVILLE TUBE, LLC
By ________________________
Name:
Title:
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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SERIES 2 LENDERS
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FIRST MERIT BANK N.A.
By ________________________
Name:
Title:
Amendment No. 3 to Series 2 Incremental Revolving Credit Agreement
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