First Supplemental Indenture, dated December 31, 2020, between Chart Industries, Inc. and Wells Fargo Bank, National Association, as trustee
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this Supplemental Indenture) is made and entered into as of this 31st day of December, 2020, between Chart Industries, Inc., a Delaware Corporation (the Company) and Wells Fargo Bank, National Association, as trustee (the Trustee). Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture (as hereinafter defined).
WHEREAS, the Company and the Trustee entered into an Indenture, dated November 6, 2017 (the Indenture), providing for the issuance of its 1.00% Convertible Senior Subordinated Notes due 2024 (the Notes);
WHEREAS, pursuant to Section 8.01(e) of the Indenture, the Company and the Trustee may supplement the Indenture without the consent of the Holders of the Notes to irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Security pursuant to Section 4.03 of the Indenture;
WHEREAS, the Company desires the Trustee to join with it in the execution and delivery of this Supplemental Indenture in order to eliminate the right of the Company to elect Physical Settlement and to irrevocably elect a Specified Dollar Amount for any Combination Settlement, and in accordance with Section 8.06 of the Indenture, the Company has duly adopted and delivered to the Trustee Board Resolutions authorizing the execution delivery of this Supplemental Indenture, and has delivered to the Trustee an Officers Certificate and an Opinion of Counsel stating that the execution of this Supplemental Indenture complies with Article 8 of the Indenture and that all conditions precedent to its execution have been complied with, and this Supplemental Indenture is valid and binding upon the Company and enforceable in accordance with its terms;
WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid supplement to the Indenture pursuant to its terms and the terms of the Indenture have been done.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree as follows:
SECTION 1. Irrevocable Elections.
Irrevocable Election to Eliminate Physical Settlement. The Company hereby irrevocably eliminates the right of the Company to elect Physical Settlement as the Settlement Method on any conversion of Notes that occurs on or after the date of this Supplemental Indenture.
Irrevocable Election of Specified Dollar Amount. The Company hereby irrevocably elects that, with respect to any Combination Settlement, the Specified Dollar Amount per $1,000 principal amount of the Notes shall be no lower than $1,000.
SECTION 2. Relationship to Indenture. This Supplemental Indenture is a supplemental indenture within the meaning of the Indenture. The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified, confirmed and approved and, as supplemented and amended by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
SECTION 3. Modification of the Indenture. Except as expressly modified by this Supplemental Indenture, the provisions of the Indenture shall continue to apply to the Notes
SECTION 4. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
SECTION 5. Execution in Counterparts; Electronic Signatures. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Supplemental Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, Signature Law), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
SECTION 6. Headings. The headings of sections of this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
SECTION 7. The Trustee. The recitals in this Supplemental Indenture are made by the Company only and not by the Trustee. The Trustee makes no representations as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture, and the Trustee assumes no responsibility for the same. All of the provisions contained in the Indenture in respect of the rights, powers, privileges, and immunities of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like force and effect as though set forth in full herein.
SECTION 8. Notice to Holders. The Company hereby requests the Trustee provide the notice to Holders pursuant to Section 8.03 of the Indenture attached hereto as Exhibit A promptly following execution of this Supplemental Indenture.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the parties hereto has caused this Supplemental Indenture to be executed by its duly authorized officers as of the date first written above.
|CHART INDUSTRIES, INC.|
|Name: Jillian C. Evanko|
|Title: President and Chief Executive Officer|
|WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee|
|Name: Gregory S. Clarke|
|Title: Vice President|
Signature Page to First Supplemental Indenture
NOTICE OF FIRST SUPPLEMENTAL INDENTURE
CHART INDUSTRIES, INC.
1.00% Convertible Senior Subordinated Notes due 2024
Aggregate Principal Amount: $258,750,000
Maturity Date: November 15, 2024
NOTICE IS HEREBY GIVEN, pursuant to Section 8.03 of the Indenture (the Indenture), dated as of November 6, 2017, between Chart Industries, Inc. (the Company) and Wells Fargo Bank, National Association, as trustee (the Trustee), that on December 31, 2020, the Company and the Trustee entered into the First Supplemental Indenture (the Supplemental Indenture). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Indenture.
Pursuant to the Supplemental Indenture, the Company irrevocably elected (i) to eliminate the Companys option to elect Physical Settlement on any conversion of Notes that occurs on or after the date of the Supplemental Indenture and (ii) that, with respect to any Combination Settlement for a conversion of Notes, the Specified Dollar Amount that will be settled in cash per $1,000 principal amount of the Notes shall be no lower than $1,000.
Date: January 4, 2021