EXHIBIT 10.3
AMENDMENT NO. 2
AMENDMENT NO. 2 (this “
Amendment No. 2 ”) dated as of May 2, 2005 to the
Revolving Credit Agreement referred to below, between CHART
INDUSTRIES, INC., a Delaware corporation (the “
Borrower ”); each of the Subsidiaries of the Borrower
identified under the caption “SUBSIDIARY GUARANTORS” on
the signature pages hereto (individually, a “ Subsidiary
Guarantor ” and, collectively, the “ Subsidiary
Guarantors ” and, together with the Borrower, the “
Obligors ”); and JPMORGAN CHASE BANK, N.A., as
administrative agent for the Lenders (in such capacity, together
with its successors in such capacity, the “ Administrative
Agent ”).
The Borrower, the Subsidiary
Guarantors, each of the lenders party thereto and the
Administrative Agent are parties to an Amended and Restated
Revolving Credit Agreement dated as of September 15, 2003 (as
heretofore modified and supplemented and in effect immediately
prior to the effectiveness of this Amendment No. 2, the “
Revolving Credit Agreement ”). The Borrower, the
Subsidiary Guarantors, the Lenders and the Administrative Agent
wish to amend the Revolving Credit Agreement to increase the
commitment thereunder and, accordingly, the parties hereto hereby
agree as follows:
Section 1. Definitions .
Except as otherwise defined in this Amendment No. 2, terms defined
in the 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 Revolving
Credit Agreement shall be amended as follows:
2.01. General References .
References in the Revolving Credit Agreement (including references
to the 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
Revolving Credit Agreement as amended hereby.
2.02. Defined Terms . Section
1.01 of the Revolving Credit Agreement is hereby amended as
follows:
A. The following new definition
shall be inserted in the appropriate alphabetical
location:
“ Amendment No. 2 Effective
Date ” means the date on which Amendment No. 2 dated as
of May 2, 2005 to this Agreement shall become effective.
B. The definition of
“Commitment” shall be amended by replacing the last
sentence thereof with the following two sentences: “The
aggregate amount of the Lenders’ Commitments is $55,000,000
as of the Amendment No. 2 Effective Date. Notwithstanding anything
herein to the contrary, on January 31, 2006 JPMCB’s
Commitment as then in effect shall be permanently reduced by an
amount equal to $15,000,000.”
Amendment No. 2
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2.02. Schedule I . Schedule I
to the Revolving Credit Agreement shall be amended in its entirety
and replaced with Schedule I to this Amendment No. 2.
2.03. Letters of Credit .
Section 2.04(c) of the Revolving Credit Agreement is hereby amended
in its entirety to read as follows:
“(c) Limitations on
Amounts . A Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the total LC Exposures of the
Issuing Lenders (determined for these purposes without giving
effect to the participations therein of the Lenders pursuant to
Section 2.04(e) and, without duplication, including the aggregate
undrawn face amount of the Existing Letters of Credit and the CHEL
Letters of Credit continued and outstanding hereunder as Letters of
Credit pursuant to Sections 2.04(l) and 2.04(m), respectively)
shall not exceed $40,000,000 and (ii) the total Credit Exposures
shall not exceed the total Commitments.”
Section 3. Representations and
Warranties . The Borrower represents and warrants to the
Lenders that, except as provided in Schedule 1 to the Consent and
Waiver dated as of April 26, 2005, (a) the representations and
warranties set forth in Article IV of the Revolving 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. 2 (or if any such representation or warranty is
expressly stated to have been made as of a specific date, as of
such specific date) and (b) immediately before and after giving
effect to the amendments set forth in Section 2 of this Amendment
No. 2, no Default shall have occurred and be continuing.
Section 4. Confirmation of
Security Documents . Each of the Obligors hereby confirms and
ratifies all of its obligations under the Credit Documents to which
it is a party, including its obligations as a guarantor under
Article III of the Credit Agreement as amended hereby. By its
execution on the respective signature lines provided below, each of
the Guarantors hereby confirms and ratifies all of its obligations
and the Liens granted by it under the Security Documents as amended
hereby to which it is a party, represents and warrants that the
representations and warranties set forth in such Security Documents
as amended hereby are complete and correct on the date hereof as if
made on and as of the date hereof and confirms that all reference
in such Security Documents as amended hereby to the
“Revolving Credit Agreement” (or words of similar
import) refer to the Revolving Credit Agreement as amended hereby
without impairing any such obligations or Liens in any
respect.
Section 5. Conditions
Precedent . The amendments set forth in Section 2 of this
Amendment No. 2 shall become effective as of the date (which shall
occur no later than May 2, 2005) upon which each of the following
conditions is satisfied:
(a) Amendment No. 2 . The
Administrative Agent shall have received of one or more
counterparts of this Amendment No. 2 executed by each of the
Obligors and the Administrative Agent (with the written consent of
the Required Lenders and each Lender whose Commitment hereunder is
being increased as result of this Amendment No. 2).
Amendment No. 2
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(b) Fees . The Borrower shall
have paid all fees required to be paid by it in connection with
this Amendment No. 2.
(c) Legal Opinion . The
Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders),
dated as of the effective date of Amendment No. 2, of Calfee,
Halter & Griswold LLP, as counsel for the Obligors, and such
other counsel to the Obligors satisfactory to the Administrative
Agent, relating to the Obligors, this Amendment No. 2 and the
Revolving Credit Agreement as amended hereby, in form and substance
reasonably satisfactory to the Administrative Agent.
(d) Corporate Authorization .
The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may
reasonably request relating to the authorization of and any other
legal matters relating to the Obligors, this Amendment No. 2, the
transactions contemplated hereby and the Revolving Credit Agreement
as amended hereby, all in form and substance reasonably
satisfactory to the Administrative Agent.
(e) No Default . The
Administrative Agent shall have received a certificate signed by
the President, a Vice President or a Financial Officer of the
Borrower to the effect set forth in Section 3 hereof.
Section 6. Miscellaneous .
Except as herein provided, the Revolving Credit Agreement shall
remain unchanged and in full force and effect. The Borrower shall
pay all reasonable expenses incurred by the Administrative Agent
(including the reasonable fees, charges and disbursements of
Milbank, Tweed, Hadley & McCloy LLP, special New York counsel
to JPMorgan Chase Bank, N.A.) in connection with the
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