EX-4.3



 









Exhibit 4.3




EXECUTION COPY




REGISTRATION RIGHTS AGREEMENT




REGISTERED EXCHANGE OFFER




CHART INDUSTRIES, INC.




THE GUARANTORS NAMED HEREIN











 



 




$170,000,000
91/8% Senior Subordinated Notes due 2015




REGISTRATION RIGHTS AGREEMENT




October 17, 2005




Morgan Stanley & Co. Incorporated

Citigroup Global Markets Inc.

Natexis Bleichroeder Inc.



c/o Morgan Stanley & Co. Incorporated

1585 Broadway

New York, New York 10036




Ladies and Gentlemen:




          Chart Industries, Inc., a corporation organized under the laws of Delaware (the
“Company”), proposes to issue and sell to Morgan Stanley & Co. Incorporated, Citigroup
Global Markets Inc. and Natexis Bleichroeder Inc. (collectively, the “Placement Agents”),
for whom Morgan Stanley & Co. Incorporated is acting as representative (the
“Representative”), $170,000,000 aggregate principal
amount of its
91/8% Senior Subordinated
Notes due 2015 (the “Notes”) upon the terms set forth in the Placement Agreement among the
Company and the Placement Agents, dated September 30, 2005 (the “Placement Agreement”),
relating to the initial placement (the “Initial Placement”) of the Notes. As of the date
hereof, the Company’s obligations under the Notes will be guaranteed (the “Guarantees”) by
its direct and indirect domestic subsidiaries that guarantee its obligations under the Credit
Agreement (as defined in the Indenture) (collectively, the “Guarantors”). References
herein to the “Issuers” refer to the Company and the Guarantors, collectively. References
herein to the “Securities” refer to the Notes and the Guarantees, collectively. To induce
the Placement Agents to enter into the Placement Agreement and to satisfy a condition to your
obligations thereunder, the Issuers agree with you for your benefit and the benefit of the holders
from time to time of the Securities (including the Placement Agents) (each a “Holder” and,
collectively, the “Holders”), as follows:



          1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this Agreement, the following
terms shall have the following meanings:




     “Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.




     “Affiliate” shall have the meaning specified in Rule 405 under the Act and the
term “controlling” shall have a meaning correlative thereto.




     “Broker-Dealer” shall mean any broker or dealer registered as such under the
Exchange Act.









 



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     “Business Day” shall mean a day other than a Saturday, a Sunday or a legal
holiday or day on which banking institutions or trust companies are authorized or required
by law to close in New York City.




     “Closing Date” shall mean the date of the first issuance of the Securities.




     “Commission” shall mean the Securities and Exchange Commission.




     “Company” shall have the meaning set forth in the preamble hereto.




     “Deferral Period” shall have the meaning set forth in Section 4(k)(ii) hereof.




     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.




     “Exchange Offer Registration Period” shall mean the period of 180 days
following the consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement.




     “Exchange Offer Registration Statement” shall mean a registration statement of
the Issuers on an appropriate form under the Act with respect to the Registered Exchange
Offer, all amendments and supplements to such registration statement, including
post-effective amendments thereto, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.




     “Exchanging Dealer” shall mean any Holder (which may include any Placement
Agent) that is a Broker-Dealer and elects to exchange for New Securities any Securities that
it acquired for its own account as a result of market-making activities or other trading
activities (but not directly from any Issuer or any Affiliate of any Issuer) for New
Securities.




     “Final Memorandum” shall mean the offering memorandum, dated September 30,
2005, relating to the Securities, including any and all exhibits thereto and any information
incorporated by reference therein as of such date.




     “Guarantee” shall have the meaning set forth in the preamble hereto.




     “Guarantors” shall have the meaning set forth in the preamble hereto.




     “Holder” shall have the meaning set forth in the preamble hereto.




     “Indenture” shall mean that certain Indenture relating to the Securities, dated
as of October 17, 2005, among the Issuers and The Bank of New York, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.




     “Initial Placement” shall have the meaning set forth in the preamble hereto.









 



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     “Losses” shall have the meaning set forth in Section 6(d) hereof.




     “Majority Holders” shall mean, on any date, Holders of a majority of the
aggregate principal amount of Securities and New Securities registered under a Registration
Statement.




     “Managing Underwriters” shall mean the investment banker or investment bankers
and manager or managers who administer an underwritten offering, if any, under a
Registration Statement.




     “NASD Rules” shall mean the Conduct Rules and the By-laws of the National
Association of Securities Dealers, Inc.




     “New Securities” shall mean debt securities of the Company and Guarantees by
the Guarantors, in each case identical in all material respects to the Securities (except
that the transfer restrictions shall be modified or eliminated, as appropriate) to be issued
under the New Securities Indenture.




     “New Securities Indenture” shall mean the Indenture or an indenture among the
Issuers and the New Securities Trustee, identical in all material respects to the Indenture
(except that the transfer restrictions shall be modified or eliminated, as appropriate),
which may be the Indenture if in the terms thereof appropriate provision is made for the New
Securities.




     “New Securities Trustee” shall mean the Trustee or a bank or trust company
reasonably satisfactory to the Placement Agents, as trustee with respect to the New
Securities under the New Securities Indenture.




     “Notes” shall have the meaning set forth in the preamble hereto.




     “Placement Agents” shall have the meaning set forth in the preamble hereto.




     “Placement Agreement” shall have the meaning set forth in the preamble hereto.




     “Prospectus” shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule
430A under the Act), as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto, including any
and all exhibits thereto and any information incorporated by reference therein.




     “Registered Exchange Offer” shall mean the proposed offer of the Issuers to
issue and deliver to the Holders of the Securities that are not prohibited by any law or
policy of the Commission from participating in such offer, in exchange for the Securities, a
like aggregate principal amount of the New Securities.









 



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     “Registrable Securities” shall mean (i) Securities other than those that have
been (A) registered under a Registration Statement and disposed of in accordance therewith
or (B) distributed to the public pursuant to Rule 144 under the Act or any successor rule or
regulation thereto that may be adopted by the Commission and (ii) any New Securities the
resale of which by the Holder thereof requires compliance with the prospectus delivery
requirements of the Act.




     “Registration Default Damages” shall have the meaning set forth in Section 8
hereof.




     “Registration Statement” shall mean any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Securities or the New Securities
pursuant to the provisions of this Agreement, any amendments and supplements to such
registration statement, including post-effective amendments (in each case including the
Prospectus contained therein), all exhibits thereto and all material incorporated by
reference therein.




     “Representative” shall have the meaning set forth in the preamble hereto.




     “Securities” shall have the meaning set forth in the preamble hereto.




     “Shelf Registration Period” shall have the meaning set forth in Section
3(b)(ii) hereof.




     “Shelf Registration” shall mean a registration effected pursuant to Section 3
hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration statement of
the Issuers pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and supplements
to such registration statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.




     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission promulgated thereunder.




     “Trustee” shall mean the trustee with respect to the Securities under the
Indenture.




     “Underwriter” shall mean any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.



          2. Registered Exchange Offer. (a) The Issuers shall prepare and, not later than 210
days following the Closing Date (or if such 210th day is not a Business Day, the next
succeeding Business Day), shall use commercially reasonable efforts to file with the Commission the
Exchange Offer









 



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Registration
Statement with respect to the Registered Exchange Offer. The Issuers shall use commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the
Act within 270 days of the Closing Date (or if such 270th day is not a Business Day, the
next succeeding Business Day).



          (b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers shall
promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such
Holder (i) is not an Affiliate of any of the Issuers, (ii) acquires the New Securities in the
ordinary course of such Holder’s business, (iii) has no arrangements with any person to participate
in the distribution of the New Securities, (iv) is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer and (v) is not a Placement Agent
holding Securities that have the status of an unsold allotment remaining from the initial
distribution of the Securities) to trade such New Securities from and after their receipt without
any limitations or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United States.



          (c) In connection with the Registered Exchange Offer, the Issuers shall:




     (i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;




     (ii) keep the Registered Exchange Offer open for not less than 20 Business Days after
the date notice thereof is mailed to the Holders (or, in each case, longer if required by
applicable law);




     (iii) use their commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required under
the Act, to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;




     (iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;




     (v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;




     (vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Issuers are conducting the
Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley & Co., Inc.
(pub. avail. June 5, 1991) and (B) including a representation that the Issuers have not
entered into any arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that, to the best of the
Issuers’ information and belief, each Holder participating in the Registered Exchange
Offer is acquiring the New Securities in the ordinary course of business and has no









 



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arrangement or understanding with any person to participate in the distribution of the New
Securities; and




     (vii) comply in all respects with all laws applicable to the Registered Exchange Offer.



          (d) As soon as practicable after the close of the Registered Exchange Offer, the Issuers
shall:




     (i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer;




     (ii) deliver to the Trustee for cancellation in accordance with Section 4(r) hereof all
Securities so accepted for exchange; and




     (iii) cause the New Securities Trustee promptly to authenticate and deliver to each
Holder of Securities a principal amount of New Securities equal to the principal amount of
the Securities of such Holder so accepted for exchange.



          (e) Each Holder shall be deemed to have agreed and acknowledged that any Broker-Dealer and any
such Holder using the Registered Exchange Offer to participate in a distribution of the New
Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988) and Morgan Stanley & Co., Inc. (pub. avail. June 5, 1991), as interpreted in the
Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters and (y)
must comply with the registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction, which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from any Issuer or any Affiliate of any
Issuer. Accordingly, each Holder participating in the Registered Exchange Offer shall be required
to represent to the Issuers that, at the time of the consummation of the Registered Exchange Offer:




     (i) any New Securities received by such Holder shall be acquired in the ordinary course
of business;




     (ii) such Holder shall have no arrangement or understanding with any person to
participate in the distribution within the meaning of the Act of the Securities or the New
Securities;




     (iii) such Holder is not an Affiliate of any Issuer; and




     (iv) if such Holder is an Exchanging Dealer, then such Holder will deliver a Prospectus
in connection with a sale of any New Securities received by such Holder pursuant to the
Registered Exchange Offer.









 



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          (f) If any Placement Agent determines that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Placement Agent, the Issuers shall issue and deliver to such
Placement Agent or the person purchasing New Securities registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Placement Agent, in exchange for such
Securities, a like principal amount of New Securities. The Issuers shall use their reasonable best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number and International
Securities Identification Number (“ISIN”) for such New Securities as for New Securities
issued pursuant to the Registered Exchange Offer.



          3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the Issuers determine upon advice of their
outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; (ii) for any other reason the Registered Exchange Offer is not consummated
within 300 days of the Closing Date; (iii) any Placement Agent so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than a Placement Agent) is not eligible to participate in the Registered Exchange
Offer; or (v) in the case of any Placement Agent that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, such Placement Agent does not receive
freely tradeable New Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that (x) the requirement that a Placement Agent deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of New Securities acquired in exchange for such Securities shall result in
such New Securities being not “freely tradeable”; and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of New Securities acquired in the Registered Exchange
Offer in exchange for Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not “freely tradeable”), the Issuers shall
file and use their commercially reasonable efforts to cause to become and keep effective a Shelf
Registration Statement in accordance with subsection (b) below.



          (b) (i) The Issuers shall as promptly as practicable, but in no event later than 210 days
after such filing obligation arises, use their commercially reasonable efforts to file with the
Commission and shall use their commercially reasonable efforts to cause to be declared effective
under the Act within 270 days after such filing obligation arises, a Shelf Registration Statement
relating to the offer and sale of the Securities or the New Securities, as applicable, by the
Holders thereof from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however, that
no Holder (other than a Placement Agent) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and provided
further that with respect to New Securities received by a Placement Agent in exchange for
Securities constituting any portion of an unsold allotment, the Issuers may, if permitted by
current interpretations by the Commission’s staff, file a post-effective amendment to the Exchange
Offer Registration
Statement containing the information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of their obligations under this subsection with respect thereto, and
any









 



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such Exchange Offer Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.



          (ii) The Issuers shall use their commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for a period from the date the
Shelf Registration Statement is declared effective by the Commission until the earliest of: (A)
the second anniversary of the Closing Date, (B) the date upon which all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or (C) the date upon which the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement become eligible for resale, without regard
to volume, manner of sale or other restrictions contained in Rule 144 under the Act pursuant to
paragraph (k) thereof (in any such case, the “Shelf Registration Period”). The Issuers
shall be deemed not to have used their commercially reasonable efforts to keep the Shelf
Registration Statement effective during the Shelf Registration Period if they voluntarily take any
action that would result in Holders of Securities covered thereby not being able to offer and sell
such Securities at any time during the Shelf Registration Period, unless such action is (x)
required by applicable law or otherwise taken by the Issuers in good faith and for valid business
reasons (not including avoidance of the Issuers’ obligations hereunder), including the acquisition
or divestiture of assets and (y) permitted pursuant to Section 4(k)(ii) hereof.



          (iii) The Issuers shall cause the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material respects with the applicable
requirements of the Act and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under which they were
made) not misleading.



          4. Additional Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.




     (a) The Issuers shall:




     (i) furnish to counsel for the Placement Agents and to counsel for the Holders,
not less than two (2) Business Days prior to the filing thereof with the Commission,
a copy of any Exchange Offer Registration Statement and any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents incorporated by reference
therein after the initial filing) and shall use their commercially reasonable
efforts to reflect in each such document, when so filed with the Commission, such
comments as counsel to the Holders or counsel for the Placement Agents reasonably
propose;




     (ii) include the information set forth in Annex A hereto on the facing page of
the Exchange Offer Registration Statement, in Annex B hereto in the









 



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forepart of the
Exchange Offer Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus contained in the Exchange Offer Registration Statement and
in Annex D hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;




     (iii) if requested by a Placement Agent, include the information required by
Item 507 or 508, as applicable, of Regulation S-K in the Prospectus contained in the
Exchange Offer Registration Statement or Shelf Registration Statement; and




     (iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Securities pursuant to the Shelf Registration Statement
as selling security holders.




     (b) The Issuers shall use their commercially reasonable efforts to ensure that:




     (i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Act; and




     (ii) any Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.




     (c) The Issuers shall advise the Placement Agents, the Holders of Securities covered by
any Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the Issuers a telephone or facsimile
number and address for notices, and, if requested by any Placement Agent or any such Holder
or Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the Prospectus
until the Issuers shall have remedied the basis for such suspension):




     (i) when a Registration Statement and any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;




     (ii) of any request by the Commission after the effective date for any
amendment or supplement to the Registration Statement or the Prospectus or for
additional information;




     (iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution of any proceeding for
that purpose;









 



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     (iv) of the receipt by any Issuer of any notification with respect to the
suspension of the qualification of the securities included therein for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose;
and




     (v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, they (A) do not contain any
untrue statement of a material fact and (B) do not omit to state a material fact
required to be stated therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which they were
made) not misleading.




     (d) The Issuers shall use their commercially reasonable efforts to prevent the issuance
of any order suspending the effectiveness of any Registration Statement or the qualification
of the securities therein for sale in any jurisdiction and, if issued, to obtain as soon as
possible the withdrawal thereof.




     (e) The Issuers shall furnish to each Holder of Securities covered by any Shelf
Registration Statement, without charge, at least one (1) copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated
therein by reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).




     (f) The Issuers shall, during the Shelf Registration Period, deliver to each Holder of
Securities covered by any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including any preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably request.
The Issuers consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Securities in connection with the offering and sale of the
Securities covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.




     (g) The Issuers shall furnish to each Exchanging Dealer which so requests, without
charge, at least one (1) conformed copy of the Exchange Offer Registration Statement and any
post-effective amendments thereto, including all material incorporated by reference therein,
and, if the Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).




     (h) The Issuers shall promptly deliver to each Placement Agent, each Exchanging Dealer
and each other person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendments or supplements thereto as any such
person may reasonably request. The Issuers consent to the use of the Prospectus or any
amendments or supplements thereto by any Placement Agent, any Exchanging Dealer and any such
other person that may be required to deliver a Prospectus following the Registered Exchange
Offer in connection with the offering









 



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and sale of the New Securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Exchange Offer Registration Statement.




     (i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant
to any Registration Statement, the Issuers shall arrange, if necessary, for the registration
or qualification of the Securities or the New Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and shall maintain such qualification
in effect so long as required; provided that in no event shall any Issuer be
obligated to qualify to do business in any jurisdiction where it is not then so qualified or
to take any action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any offering pursuant
to a Shelf Registration Statement, in any such jurisdiction where it is not then so subject
or to subject itself to taxation in excess of a nominal amount in respect of doing business
in such jurisdiction.




     (j) The Issuers shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or Securities to be
issued or sold pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request in writing at least
three (3) Business Days prior to the closing date of any sales of New Securities.




     (k) (i) Upon the occurrence of any event contemplated by subsections (c) (ii) through
(v) above, the Issuers shall promptly (or within the time period provided for by clause (ii)
of this subsection (k), if applicable) prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to the Placement Agents of the
Securities included therein, the Prospectus shall not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the Exchange
Offer Registration Statement provided for in Section 2 hereof shall be extended by the
number of days from and including the date of the giving of a notice of suspension pursuant
to Section 4(c) hereof to and including the date when the Placement Agents, the Holders of
the Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section 4(k).




     (ii) Upon the occurrence or existence of any pending corporate development or
any other material event that, in the reasonable judgment of the Issuers, makes it
appropriate to suspend the availability of a Shelf Registration Statement and the
related Prospectus, the Issuers shall give notice (without notice of the nature or
details of such events) to the Holders that the availability of the Shelf
Registration is suspended and, upon actual receipt of any such notice, each Holder
agrees not to sell any Registrable Securities pursuant to the Shelf Registration
until such Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section 4(a)(i) hereof, or until it is advised in writing









 



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by the Issuers that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The period during which the availability of the Shelf
Registration and any Prospectus is suspended (the “Deferral Period”) (1)
shall not exceed 60 consecutive days, (2) shall not occur more than three (3) times
during any calendar year and (3) shall extend the number of days the Shelf
Registration or any Prospectus is required to be available by an amount equal to the
Deferral Period. Any Registration Default Damages payable pursuant to Section
8(a)(ii) shall cease to accrue during any Deferral Period.




     (l) Not later than the effective date of any Registration Statement, the Issuers shall
provide a CUSIP number and ISIN for the Securities or the New Securities, as the case may
be, registered under such Registration Statement, and provide the Trustee with printed
certificates for such Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.




     (m) The Issuers shall comply in all material respects with all applicable rules and
regulations of the Commission and shall make generally available to their security holders
earnings statements satisfying the provisions of Section 11(a) of the Act as soon as
practicable after the effective date of the applicable Registration Statement.




     (n) The Issuers shall cause the Indenture or any New Securities Indenture to be
qualified under the Trust Indenture Act as required by applicable law in a timely manner.




     (o) The Issuers may require each Holder of Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Issuers such information regarding the Holder and
the distribution of such Securities as the Issuers may from time to time reasonably require
for inclusion in such Registration Statement. The Issuers may exclude from such Shelf
Registration Statement the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.




     (p) In the case of any Shelf Registration Statement, upon the request of the Majority
Holders, the Issuers shall enter into customary agreements (including, if requested, one
underwriting agreement in customary form) and take all other appropriate actions, if any, as
the Majority Holders shall reasonably request in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 6 hereof.




     (q) In the case of any Shelf Registration Statement, the Issuers shall:




     (i) make reasonably available for inspection at a location where they are
normally kept and during normal business hours by the Majority Holders of Securities
to be registered thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or other agent
retained by such Holders or any such underwriter all relevant









 



-13-



financial and other records and pertinent corporate documents of the Issuers
and their subsidiaries;




     (ii) use its commercially reasonable efforts to cause its officers, directors,
employees, accountants and auditors to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant or agent
(each, an “Inspector”) in connection with any such Registration Statement as
is customary for similar due diligence examinations; provided,
however, that such Inspector shall first agree in writing with the Issuers
that any information that is reasonably and in good faith designated by the Issuers
in writing as confidential at the time of delivery of such information shall be kept
confidential by such Inspector, unless (1) disclosure of such information is
required by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (2) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in
connection with the filing of such Registration Statement or the use of any
Prospectus), (3) such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard such information by such
person or (4) such information becomes available to such Inspector from a source
other than the Issuers and such source is not known, after due inquiry, by the
relevant Holder to be bound by a confidentiality agreement or is not otherwise under
a duty of trust to the Issuers;




     (iii) make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten offerings;




     (iv) obtain opinions of counsel to the Issuers and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;




     (v) obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in “comfort”
letters in connection with primary underwritten offerings; and




     (vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders or the Managing Underwriters, if any,









 



-14-



including those to evidence compliance with Section 4(k) hereof and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Issuers.




     (r) If a Registered Exchange Offer is to be consummated, upon delivery of the
Securities by Holders to the Company (or to such other person as directed by the Company) in
exchange for the New Securities, the Company shall mark, or caused to be marked, on the
Securities so exchanged that such Securities are being cancelled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.




     (s) The Issuers shall use their commercially reasonable best efforts to take all other
steps necessary to effect the registration of the Securities or the New Securities, as the
case may be, covered by a Registration Statement.



          5. Registration Expenses. The Issuers shall bear all expenses incurred in connection
with the performance of their obligations under Sections 2, 3 and 4 hereof and, in the event of any
Shelf Registration Statement, shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel (which shall initially be Shearman & Sterling LLP, but which may be another
nationally recognized law firm experienced in securities matters designated by the Majority
Holders) to act as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, shall reimburse the Placement Agents for the reasonable fees
and disbursements of counsel acting in connection therewith, in each case which counsel shall be
approved by the Issuer (such approval not to be unreasonably withheld). Each Holder shall pay all
expenses of its counsel other than as set forth in the preceding sentence, underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s
Securities or New Securities.



          6. Indemnification and Contribution. (a) The Issuers, jointly and severally, agree
to indemnify and hold harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement, each Placement Agent and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors, officers
and Affiliates of each such Holder, Placement Agent or Exchanging Dealer and each person who
controls any such Holder, Placement Agent or Exchanging Dealer within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of any preliminary Prospectus or the
Prospectus, in the light of the circumstances under which they were made) not misleading, and
agree (subject to the limitations set forth in the provisos to this sentence) to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,




 









 







-15-



liability or action; provided, however, that the Issuers will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Issuers by or on behalf
of the party claiming indemnification specifically for inclusion therein; provided
further that with respect to any such untrue statement or alleged untrue statement or
omission or alleged omission from any preliminary Prospectus, the indemnity agreement contained in
this paragraph (a) shall not inure to the benefit of any Holder, Placement Agent or Exchanging
Dealer or any of their respective directors, officers and Affiliates or control persons, from whom
such person asserting such loss, claim, damage or liability purchased the New Securities concerned,
to the extent that both (i) a copy of the final Prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of the Securities or New Securities to such person
and (ii) the untrue statement in or omission from such preliminary Prospectus was corrected in the
final Prospectus unless, in either case, such failure to deliver the final Prospectus was a result
of non-compliance by the Issuer with the provisions of Section 4 hereof. This indemnity agreement
shall be in addition to any liability that the Issuers may otherwise have. The Issuers shall not
be liable under this Section 6 to any indemnified party regarding any settlement or compromise or
consent to the entry of any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to by the Issuers, which consent shall not be
unreasonably withheld.




          (b) Each Holder of securities covered by a Registration Statement (including each Placement
Agent that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold
harmless the Issuers, each of their respective directors, each of their respective officers who
sign such Registration Statement and each person who controls any Issuer within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers
to each such Holder, but only with reference to written information relating to such Holder
furnished to the Issuers by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any
liability that any such Holder may otherwise have.




          (c) Promptly after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party in writing of
the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel (including local counsel) of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel, other than local counsel if not appointed by the indemnifying
party,




 









 








-16-



retained by the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with a conflict of
interest (based on the advice of counsel to the indemnified person); (ii) such action includes
both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded (based on the advice of counsel to the indemnified person) that there may be
legal defenses available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood and agreed that the indemnifying party shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for
all indemnified parties. Any such separate firm for any Placement Agent, its directors, officers
and Affiliates and any control person shall be designated in writing by Morgan Stanley & Co.
Incorporated and any such separate firm for any of the Issuers, its respective directors, officers
and Affiliates and any control person shall be designated in writing by the Company. An
indemnifying party will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding and does
not include any statement as to, or any concessions of, fault, culpability or failure to act by or
on behalf of any indemnified party.




          (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim, liability, damage or
action) (collectively “Losses”) to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such indemnifying party,
on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in no
case shall any Placement Agent be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, as set forth in the Final
Memorandum, nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by such underwriter
under the Registration Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying party and the




 









 








-17-



indemnified party shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. Benefits received by the
Issuers shall be deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Placement Agreement. Benefits received by the Placement
Agents shall be deemed to be equal to the total purchase discounts and commissions as set forth in
the Placement Agreement, and benefits received by any other Holders shall be deemed to be equal to
the value of receiving Securities or New Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the
Registration Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information provided by
the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be just and equitable if the amount of such
contribution were determined by pro rata allocation (even if the Holders were treated as one entity
for such purpose) or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have
the same rights to contribution as such Holder, and each person who controls any Issuer within the
meaning of either the Act or the Exchange Act, each officer of any Issuer who shall have signed the
Registration Statement and each director of any Issuer shall have the same rights to contribution
as the Issuers, subject in each case to the applicable terms and conditions of this paragraph (d).




          (e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers or any of the indemnified persons
referred to in this Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.




          7. Underwritten Registrations. (a) If any of the Securities or New Securities, as the
case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters, if any, shall be selected by the Majority Holders subject to
the consent of the Issuer (which shall not be unreasonably withheld), and the Holders of Securities
or New Securities covered by such Shelf Registration Statement shall be responsible for all
underwriting commissions and discounts.




          (b) No person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and




 









 








-18-



(ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.




          8. Registration Defaults. (a) If any of the following events shall occur, then the
Company shall pay liquidated damages (the “Registration Default Damages”) to the Holders of
Securities in respect of the Securities as follows:





     (i) if (a) neither (x) the Registered Exchange Offer is completed within 300 days of
the Closing Date, nor (y) if required, the Shelf Registration Statement is declared
effective within 270 days of the date the filing obligation arises with respect to such
Shelf Registration Statement, then Registration Default Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum on the principal amount of such
Registrable Securities for the first 90 days from and including such specified date and
increasing by an additional 0.25% per annum at the beginning of each subsequent 90-day
period thereafter; provided that Registration Default Damages in the aggregate under
this Section 8 may not exceed 1.0% per annum of the principal amount of such Registrable
Securities; or




     (ii) subject to the last sentence of Section 4(k)(ii) above, if the Shelf Registration
Statement required by Section 3(a) of this Agreement has been declared effective but
thereafter ceases to be effective at any time at which it is required to be effective under
this Agreement and such failure to remain effective exists for more than 30 consecutive days
or more than 60 days (whether or not consecutive) during the period for which the Shelf
Registration Statement is required, then commencing on the 31st day or
61st day, as applicable, following the date on which such Shelf Registration
Statement ceases to be effective, Registration Default Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum of the principal amount of such
Registrable Securities for the first 90 days from and including such 31st day or 61st day,
as applicable, following the date on which such Shelf Registration Statement ceases to be
effective and increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period thereafter; provided that Registration Default Damages in
the aggregate under this Section 8 may not exceed 1.0% per annum of the principal amount of
such Registrable Securities;


provided, however, that upon (1) the completion of the Exchange Offer (in the case
of paragraph (i) above) and (2) the effectiveness of the Shelf Registration Statement which had
ceased to remain effective (in the case of paragraph (ii) above), Registration Default Damages shall cease to
accrue.




          (b) The Issuers shall notify the Trustee within one Business Day after each and every date on
which an event occurs in respect of which Registration Default Damages are required to be paid and
within one Business Day after such Registration Default Damages cease to accrue. Any amounts of
Registration Default Damages due pursuant to paragraphs (i) or (ii) of this Section 8(a) will be
payable in cash on each interest payment date specified by the Indenture to the record holder
entitled to receive the interest payment to be made on such date,





 









 








-19-



commencing with the first such date occurring after any such Registration Default Damages commences to accrue.




           (c) The parties hereto agree that the liquidated damages in the form of Registration Default
Damages provided for in this Section 8 constitute a reasonable estimate of and are intended to
constitute the sole damages payable under this Agreement that will be suffered by Holders of
Securities by reason of the failure of (i) the Registered Exchange Offer to be completed; (ii) the
Shelf Registration Statement, if required hereby, to be declared effective, or (iii) the Shelf
Registration Statement to remain effective (and the Prospectus contained therein to remain usable),
in each case to the extent required by this Agreement.




          9. No Inconsistent Agreements. No Issuer has entered into, and each Issuer agrees not to
enter into, any agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflicts with the provisions hereof.




          10. Amendments and Waivers. The provisions of this Agreement may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Issuers have obtained the written consent of the Holders of a
majority of the aggregate principal amount of the Registrable Securities outstanding;
provided that, with respect to any matter that directly or indirectly affects the rights
and obligations of any Placement Agent hereunder, the Issuers shall obtain the written consent of
each such Placement Agent against which such amendment, qualification, supplement, waiver or
consent is to be effective; provided further that no amendment, qualification,
supplement, waiver or consent with respect to Section 8 hereof shall be effective as
against any Holder of Registered Securities unless consented to in writing by such Holder; and
provided further that the provisions of this Article 10 may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Issuers have obtained the written consent of the Placement
Agents and each Holder. Notwithstanding the foregoing (except the foregoing provisos),
a waiver or consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the basis of Securities
or New Securities, as the case may be, being sold rather than registered under such Registration
Statement.




          11. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:





     (a) if to a Holder, at the most current address given by such Holder to the Issuers in
accordance with the provisions of this Section 11, which address initially is, with respect
to each Holder, the address of such Holder maintained by the Registrar (as such term is
defined in the Indenture) under the Indenture;




     (b) if to the Placement Agents, initially at the address or addresses set forth in the
Placement Agreement; and



 









 





-20-





     (c) if to any Issuer, initially at its address set forth in the Placement Agreement.



          All such notices and communications shall be deemed to have been duly given when received.




          The Placement Agents or the Issuers by notice to the other parties may designate additional or
different addresses for subsequent notices or communications.




          12. Remedies. Each Holder, in addition to being entitled to exercise all rights provided
to it herein, in the Indenture or in the Placement Agreement or granted by law, including recovery
of liquidated or other damages, will be entitled to specific performance of its rights under this
Agreement. The Issuers agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to
waive in any action for specific performance the defense that a remedy at law would be adequate.




          13. Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their respective successors and assigns, including, without the need for
an express assignment or any consent by the Issuers thereto, subsequent Holders of Securities and
the New Securities, and the indemnified persons referred to in Section 6 hereof. The Issuers
hereby agree to extend the benefits of this Agreement to any Holder of Securities and the New
Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.




          14. Counterparts. This Agreement may be signed in one or more counterparts which may be
delivered in original form or by telecopier, each of which when so executed shall constitute an
original and all of which together shall constitute one and the same agreement.




          15. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.




          16. Applicable Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be performed in the State of
New York. The parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.




          17. Severability. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.




          18. Securities Held by any Issuer, etc. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities or New Securities is required hereunder,
Securities or New Securities, as applicable, held by any Issuer or their Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders are




 









 








-21-



deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage.




[Signature pages follow]




 









 








-22-




          If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement by and among the Issuers and the several Placement Agents.




	 	 	 	 	 
	 

	 	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	CHART INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael F. Biehl
	 

	 	 	 	 
	 

	 	 	 	Name: Michael F. Biehl
	 

	 	 	 	Title: Chief Financial Officer and Treasurer
	 
	 	 	 	 
	 	 	CHART INC.
	 	 	CAIRE INC.
	 	 	CHART ENERGY & CHEMICALS, INC.
	 	 	COOLTEL, INC.
	 	 	CHART INTERNATIONAL HOLDINGS, INC.
	 	 	CHART ASIA, INC.
	 	 	CHART INTERNATIONAL, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael F. Biehl
	 

	 	 	 	 
	 

	 	 	 	Name: Michael F. Biehl
	 

	 	 	 	Title: Chief Financial Officer and Treasurer






 









 






-23-




	 	 	 
	 

	 	The foregoing Agreement is hereby
	 

	 	confirmed and
	 

	 	accepted as of the date first above written:
	 
	 	 
	Morgan Stanley & Co. Incorporated
	 	 
	Citigroup Global Markets Inc.
	 	 
	Natexis Bleichroeder Inc.
	 	 






	 	 	 	 	 
	By:

	 	Morgan Stanley & Co. Incorporated
	 	 
	 
	 	 	 	 
	By:

	 	   /s/ Todd Singer	 	 
	 

	 	 	 	 
	 

	 	Name:     Todd Singer	 	 
	 

	 	Title:       Executive Director	 	 






For themselves and the other

several Placement Agents




 









 





ANNEX A




          Each broker-dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it shall deliver a prospectus in connection with any resale of such New
Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
Prospectus, a broker-dealer shall not be deemed to admit that it is an “underwriter” within the
meaning of the Act. This prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Issuers have agreed that, for a period of 180 days
after consummation of the Registered Exchange Offer, they shall make this Prospectus available to
any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”




A-1




 









 





ANNEX B




          Each broker-dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it shall deliver a Prospectus in
connection with any resale of such New Securities. See “Plan of Distribution.”




B-1





 










 







ANNEX C




PLAN OF DISTRIBUTION




          Each broker-dealer that receives New Securities for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a Prospectus in connection with any resale of
such New Securities. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired as a result of market-making activities or other
trading activities. The Issuers have agreed that, for a period of 180 days after the consummation
of the Registered Exchange Offer, they will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In addition, until
___, 20___, all dealers effecting transactions in the New Securities may be required to
deliver a Prospectus.




          The Issuers will not receive any proceeds from any sale of New Securities by brokers-dealers.
New Securities received by broker-dealers for their own account pursuant to the Registered Exchange
Offer may be sold from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Securities or a combination of
such methods of resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of any such New
Securities. Any broker-dealer that resells New Securities that were received by it for its own
account pursuant to the Registered Exchange Offer and any broker or dealer that participates in a
distribution of such New Securities may be deemed to be an “underwriter” within the meaning of the
Act and any profit of any such resale of New Securities and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering a Prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the
Act.




          For a period of 180 days after the consummation of the Registered Exchange Offer, the Issuers
will promptly send additional copies of this Prospectus and any amendments or supplements to this
Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The
Issuers have agreed to pay all expenses incident to the Registered Exchange Offer (including the
expenses of one counsel for the holder of the Securities) other than commissions or concessions of
any brokers or dealers and will indemnify the holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the Act.




          [If applicable, add information required by Regulation S-K Items 507 and/or 508.]




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ANNEX D




LANGUAGE TO BE INCLUDED IN LETTER OF TRANSMITTAL





	1.	 	PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.





	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 







	2.	 	If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the
New Securities in the ordinary course of its business, it is not engaged in, and does not
intend to engage in, a distribution of New Securities and it has no arrangements or
understandings with any person to participate in a distribution of the New Securities. If the
undersigned is a Broker-Dealer that will receive New Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for New Securities
were acquired by it as a result of market-making activities or other trading activities and
acknowledges that it shall deliver a Prospectus in connection with any resale of such New
Securities; however, by so acknowledging and by delivering a Prospectus, the undersigned shall
not be deemed to admit that it is an “underwriter” within the meaning of the Act.





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