FIRST AMENDMENT TO FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT (this "Amendment"), dated as of
November 30, 2001, among HydroChem Industrial Services, Inc. ("Borrower"),
HydroChem Holding, Inc. ("Holding"), HydroChem International, Inc.
("International"), HydroChem Industrial Cleaning, Inc. ("Cleaning"; Holding,
International, and Cleaning are collectively referred to herein as "Guarantors"
and each individually as a "Guarantor"), the several Lenders (as such term is
defined in the hereinafter described Financing Agreement) parties to this
Amendment, and The CIT Group/Business Credit, Inc. as Agent for the Lenders (in
such capacity, the "Agent").
R E C I T A L S:
A. Borrower, Guarantors, the Agent, and the several Lenders parties thereto
entered into that certain Financing Agreement dated as of October 25, 2001 (as
the same may be amended, modified, restated, supplemented, renewed, extended,
increased, rearranged and/or substituted from time to time, the "Financing
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Financing Agreement.
B. Borrower and Guarantors have requested that the Lenders agree to amend
the Financing Agreement as more fully described hereinbelow.
C. The several Lenders parties to this Amendment (which Lenders constitute
the Required Lenders required under the Financing Agreement to effect the
amendment intended hereby) are willing to agree to such amendment, subject to
the performance and observance in full of each of the covenants, terms and
conditions, and in reliance upon all of the representations and warranties of
the Borrower and the Guarantors, set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants, terms,
conditions, representations and warranties herein contained, the parties hereto
agree hereby as follows:
Section 1. AMENDMENT TO FINANCING AGREEMENT. Subject to the covenants,
terms and conditions set forth herein and in reliance upon the representations
and warranties of the Borrower and the Guarantors herein contained, the
Borrower, the Guarantors, and the several Lenders parties to this Amendment
(which Lenders constitute the Required Lenders required under the Financing
Agreement to effect the following amendment) hereby agree to amend the Financing
Agreement, effective as of the Amendment Effective Date (as hereinafter
defined), (a) by deleting the words "ninety (90) days" set forth in clause (c)
of Section 14.10 of the Financing Agreement and replacing them with the words
"forty-five (45) days", and (b) by deleting the words "November 30, 2001," set
forth in clause (n) of Section 10.1 of the Financing Agreement and replacing
them with the words "December 7, 2001,".
Section 2. CONDITIONS PRECEDENT. The parties hereto agree that this
Amendment and the amendment to the Financing Agreement contained herein shall
not be effective until the satisfaction of each of the following conditions
precedent:
(a) Execution and Delivery of this Amendment. The Agent shall have received
a copy of this Amendment executed and delivered by each of the Restricted
Persons and by Lenders constituting Required Lenders.
(b) Representations and Warranties. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment.
Section 3. REPRESENTATIONS AND WARRANTIES. To induce the Agent and the
several Lenders parties hereto to enter into this Amendment and to agree to the
amendment contained herein, each of the Borrower and each Guarantor represents
and warrants to the Agent and the Lenders as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Restricted Persons of this Amendment have been duly
authorized by all necessary corporate action and do not and will not (i)
contravene the terms of any charter document of any Restricted Person, (ii)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any document evidencing any contractual obligation to which any
Restricted Person is a party or any order, injunction, writ or decree of any
governmental authority to which any Restricted Person is a party or its property
is subject, or (iii) violate any requirement of law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any governmental authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Amendment.
(c) No Default. No Default or Event of Default exists under any of the Loan
Documents. No Restricted Person is in default under or with respect to (i) its
charter documents or (ii) any material contractual obligation of such Restricted
Person. The execution, delivery and performance of this Amendment shall not
result in any default under any contractual obligation of any Restricted Person
in any respect.
(d) Binding Effect. This Amendment and the Financing Agreement as amended
hereby constitute the legal, valid and binding obligations of the Restricted
Persons that are parties thereto, enforceable against such Restricted Persons in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles of general
applicability.
(e) Representations and Warranties. The representations and warranties set
forth in the Financing Agreement and the other Loan Documents are true and
correct on and as of the Amendment Effective Date, except to the extent that any
such representation or warranty relates to a specific date, both before and
after giving effect to the amendments contemplated in this Amendment, as if such
representations and warranties were being made on and as of the Amendment
Effective Date.
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Section 4. MISCELLANEOUS
(a) Ratification and Confirmation of Loan Documents. Except for the
specific amendment expressly set forth in this Amendment, the terms, provisions,
conditions and covenants of the Financing Agreement and the other Loan Documents
remain in full force and effect and are hereby ratified and confirmed, and the
execution, delivery and performance of this Amendment shall not in any manner
operate as a waiver of, consent to or amendment of any other term, provision,
condition or covenant of the Financing Agreement or any other Loan Document.
(b) Fees and Expenses. The Borrower and the Guarantors jointly and
severally agree to pay on demand all costs and expenses of the Agent in
connection with the preparation, reproduction, execution, and delivery of this
Amendment and any other documents prepared in connection herewith, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) Counterparts and Amendment Effective Date. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective when (i) each of the conditions precedent set forth in Section 2 of
this Amendment have been satisfied and (ii) the Agent has received counterparts
of this Amendment executed by the Borrower, each of the Guarantors and the
Lenders constituting Required Lenders (the "Amendment Effective Date").
(f) Affirmation of Guarantees. Notwithstanding that such consent is not
required thereunder, the undersigned Guarantors hereby consent to the execution
and delivery of this Amendment and reaffirm their respective obligations under
each of their respective Guaranties.
(g) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE FINANCING AGREEMENT
AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
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ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers
effective as of the Amendment Effective Date.
HYDROCHEM INDUSTRIAL SERVICES, INC.,
as Borrower
By: /s/ Pelham X. X. Xxxxx
----------------------
Name: Pelham X. X. Xxxxx
Title:
HYDROCHEM HOLDING, INC., as a Guarantor
By: /s/ Pelham X. X. Xxxxx
----------------------
Name: Pelham X. X. Xxxxx
Title:
HYDROCHEM INTERNATIONAL, INC., as a
Guarantor
By: /s/ Pelham X. X. Xxxxx
----------------------
Name: Pelham X. X. Xxxxx
Title:
HYDROCHEM INDUSTRIAL CLEANING, INC.,
as a Guarantor
By: /s/ Pelham X. X. Xxxxx
----------------------
Name: Pelham X. X. Xxxxx
Title:
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THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent and a Lender
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Vice President
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