1
Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT
TO
CREDIT AGREEMENT
This Second Amendment (this "Amendment") is executed at Cleveland, Ohio
as of March 5, 1998 by and among CHART INDUSTRIES, INC. (referred to hereinafter
as the "Parent"), ALTEC INTERNATIONAL LIMITED PARTNERSHIP ("ALTEC"), ALTEC, INC.
("AI"), CHART MANAGEMENT COMPANY, INC. ("Chart Management"), CHART INDUSTRIES
FOREIGN SALES CORPORATION ("Chart Foreign"), GREENVILLE TUBE CORPORATION
("Greenville"), PROCESS SYSTEMS INTERNATIONAL, INC. ("PSI"), CRYENCO SCIENCES,
INC. ("Sciences") and CRYENCO, INC. ("CI") (the Parent, ALTEC, AI, Chart
Management, Chart Foreign, Greenville, PSI, Sciences and CI being referred to
collectively as the "Borrowing Group") and NATIONAL CITY BANK ("NCB") and NBD
BANK ("NBD") (NCB and NBD being referred to collectively as the "Banks" and
singly as a "Bank") and NATIONAL CITY BANK, as agent for the Banks (the
"Agent").
WHEREAS, the Borrowing Group, Banks and Agent entered into a Credit
Agreement dated as of July 29, 1997, as amended by a First Amendment to Credit
Agreement dated as of October 8, 1997 (the "Credit Agreement"; all terms used in
the Credit Agreement being used herein with the same meaning); and
WHEREAS, the Borrowing Group, Banks and Agent want to make certain
changes in the Credit Agreement;
NOW, THEREFORE, the Borrowing Group, Banks and Agent agree as follows:
1. The "Whereas" clause on page 1 of the Credit Agreement is hereby
deleted and replaced with the following:
"WHEREAS, the Borrowing Group desires to obtain from
the Banks an unsecured revolving credit facility (the "Credit
Facility") in a principal amount not to exceed FORTY FIVE
MILLION DOLLARS ($45,000,000) less the face amount of any
outstanding letters of credit and foreign bank guaranties
including (i) a revolving loan that may be borrowed, repaid
and
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reborrowed, (ii) standby letters of credit in an aggregate
stated amount not to exceed FIFTEEN MILLION DOLLARS
($15,000,000), and (iii) a multi-currency credit facility in
pounds sterling in an aggregate stated amount not to exceed
THIRTY FIVE MILLION DOLLARS ($35,000,000), all upon the terms
and conditions set forth hereafter ((i) and (iii) are
hereinafter jointly referred to as the "Revolving Loan")."
2. The following new definitions are hereby added to Section 1.01 of
the Credit Agreement:
"Dollar Equivalent" shall mean, at any time, and at each time a
determination is required, as determined by the Agent (which
determination shall be conclusive absent manifest error), an equivalent
amount of Pounds Sterling expressed in dollars.
"Pounds Sterling" means the lawful currency of the United Kingdom, if
at the time such currency is readily and freely transferable and
convertible into Dollars.
"Pounds Sterling Agent" means a lending institution located in the
United Kingdom, designated by the Agent.
"Pounds Sterling Credit Facility" means a portion of the Credit
Facility pursuant to which the Parent, but no other member of the
Borrowing Group, may obtain Advances in Pounds Sterling in any
aggregate principal amount not to exceed the Dollar Equivalent of
$35,000,000 at any time. The Pounds Sterling Credit Facility shall be a
part of, and NOT SEPARATE FROM OR INDEPENDENT OF, the Credit Facility,
and the Pounds Sterling Credit Facility shall be subject to all the
terms and provisions applicable to the Credit Facility.
3. The following Sections of the Credit Agreement are hereby amended as
follows:
SECTION 1.01 The definition "Banks" is hereby amended by
adding the following phrase at the end of the existing definition:
", and shall include any office, branch, subsidiary, or
affiliate of each named Bank, as selected by such Bank".
The definition "Borrowing Group" shall hereafter include Chart
International, Inc., a Delaware corporation.
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The definition "Libor Margin" is hereby amended by deleting the
performance grid contained therein and replacing it with the following:
Level Borrowed Fixed LIBOR Plus Letter of Facility Fee
Debt/Net Charge (basis Credit (basis
Worth Coverage points) Pricing (%) points)
Ratio
Less than or Greater than or
1 equal to 1.00 equal to 2.61 62.5 .625 .375
2 1.00 to 1.35 2.16 to 2.60 87.5 .875 .375
3 1.36 to 1.70 1.71 to 2.15 112.5 1.125 .375
4 1.71 to 2.00 1.26 to 1.70 137.5 1.125 .375
SECTION 1.03 The following new Section 1.03, entitled
"CURRENCY EQUIVALENTS" is added to Article I of the Credit Agreement:
Section 1.03 CURRENCY EQUIVALENTS. For purposes of this
Agreement, except as otherwise specified herein, the equivalent in
Dollars of any Pounds Sterling and the equivalent in Pounds Sterling of
any Dollars shall be determined by using the quoted spot rate at which
the Agent offers to exchange Dollars for such Pounds Sterling or Pounds
Sterling for such Dollars, as applicable, at its office in Cleveland,
Ohio at 9:00 A.M. two Business Days prior to the Date on which such
equivalent is to be determined; provided, that the equivalent in
Dollars of each Advance made in Pounds Sterling shall be recalculated
hereunder on each date that it shall be necessary (or the Agent shall
elect) to determine the unused portion of each Bank's Commitment, of
any or all Revolving Loans outstanding on such date.
SECTION 2.01 The following sentence is added after the second
sentence of Section 2.01:
"Included as part of, but not in addition to, the forty-five
million dollar amount of the Commitments is the Pounds Sterling Credit
Facility, and Advances in Pounds Sterling may be obtained by the Parent
in accordance with the terms and provisions of this Credit Agreement,
provided that all Revolving Loans made as part of the same Borrowing by
the Borrowing Group (or the Parent, as applicable) shall, unless
otherwise specifically provided herein, consist of Revolving Loans of
the same type
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and currency; and provided, further, that the aggregate outstanding
principal amount of Revolving Loans to the Parent denominated in Pounds
Sterling shall not exceed $35,000,000 at any time outstanding."
SECTION 2.04 The following sentence is added after the second
sentence of Section 2.04:
"Each Advance in Pounds Sterling shall be in an amount of not
less than (pound)1,000,000, or multiples of (pound)500,000 in excess
thereof, and at no time shall there be more than four (4) Borrowings in
Pounds Sterling outstanding hereunder."
The following sentence is added after the fourth
sentence of Section 2.04 (not taking into account the immediately
preceding amendment):
"Whenever the Parent desires an Advance in Pounds Sterling,
the Parent shall give the Agent prior to 11:00 A.M. (EST), at least
four Business Days' prior written or telephonic notice (in the case of
telephonic notice, promptly confirmed in writing if so requested by the
Agent) of each Borrowing of Revolving Loans consisting of Pounds
Sterling."
The following additional paragraphs are added at
the end of Section 2.04:
"In the case of a proposed Borrowing comprised of Revolving
Loans which are denominated in Pounds Sterling, the obligation of each
Bank to make its pro rata share of the Revolving Loan in Pounds
Sterling as part of such Borrowing is subject to the confirmation by
the Agent to the Parent not later than the fourth Business Day before
the requested date of such Borrowing that Pounds Sterling is readily
and freely transferable and convertible into Dollars. If the Agent
shall not have provided the confirmation referred to above, the Agent
shall promptly notify the Parent, whereupon the Parent may, by notice
to the Agent not later than the third Business Day before the requested
date of such Borrowing, withdraw its request relating to such requested
Borrowing. If the Parent does so withdraw such request, the Borrowing
requested shall not occur and the Agent shall promptly so notify each
Bank. If the Parent does not so withdraw such request, the Agent shall
promptly so notify each Bank and such request shall be deemed to be a
request for a Borrowing which requests a Borrowing of Revolving Loans
in an aggregate amount in Dollars equivalent, on the date the Agent so
notifies each Bank, to the amount of the originally requested Borrowing
in Pounds Sterling, and in such notice by the Agent to each Bank, the
Agent shall state
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such aggregate equivalent amount of such Borrowing in Dollars and such
Bank's ratable portion of such Borrowing.
No later than 2:00 P.M. (EST) on the date specified in each
request for Advance, subject to the notice requirements set forth
herein, each Bank will make available its pro rata share of each
Borrowing requested to be made on such date in the manner provided
below. All amounts relating to any Borrowing by the Borrowing Group or
the Parent (with respect to the Pounds Sterling Credit Facility) shall
be made available to the Agent in Dollars or to the Pounds Sterling
Agent in Pounds Sterling, as applicable, in immediately available funds
at the Agent's office in Cleveland, Ohio or at the office of the Pounds
Sterling Agent in the United Kingdom, with respect to a Borrowing under
the Pounds Sterling Facility, and the Agent or the Pounds Sterling
Agent, as applicable, promptly will make available to the Borrowing
Group, or the Parent, as applicable, by depositing to its account with
the Agent, or at such other account in another financial institution
designated by the Borrowing Group or the Parent, as applicable, to the
Agent, or to the Pounds Sterling Agent, as applicable, the aggregate of
the amounts so made available in the currency and type of funds
received.
With respect to any Borrowing in Dollars only, unless the
Agent shall have been notified by either Bank prior to the date of a
Borrowing that such Bank does not intend to make available to the Agent
its portion of the Borrowing or Borrowings to be made on such date, the
Agent may assume that such Bank has made such amount available to the
Agent on such date of Borrowing, and the Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to
do so) make available to the Borrowing Group or the Parent, as
applicable, a corresponding amount. If such corresponding amount is not
in fact made available to the Agent by such Bank and the Agent has made
available same to the Borrowing Group or the Parent, as applicable, the
Agent shall be entitled to recover such corresponding amount from such
Bank. If such Bank does not pay such corresponding amount forthwith
upon the Agent's demand therefor, the Agent shall promptly notify the
Borrowing Group and the Borrowing Group shall immediately pay such
corresponding amount to the Agent. The Agent shall also be entitled to
recover from such Bank or the Borrowing Group, as the case may be,
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to the
Borrowing Group or the Parent, as applicable, to the date such
corresponding amount is recovered by the Agent at a rate per annum
equal to (x) if paid by such Bank, at the overnight Federal Funds
Effective Rate, in the case of any Revolving Loan denominated in
Dollars, or at the weighted
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average overnight or weekend borrowing rate for immediately available
and freely transferrable funds in Pounds Sterling which is offered to
the Agent in the international markets, in the case of any Revolving
Loan denominated in Pounds Sterling, or (y) if paid by the Borrowing
Group, the then applicable rate of interest, calculated in accordance
with Section 2.05, for the respective Revolving Loan (but without any
requirement to pay any amounts in respect thereof pursuant to Section
2.10)."
SECTION 2.26 The heading "(i)" is inserted at the beginning of
the first paragraph and the following paragraphs are added as numbers
(ii) and (iii):
"(ii) If for the purposes of obtaining judgment in
any court or calculating any fee payable under this Credit
Agreement it is necessary to convert a sum due hereunder or
under a Revolving Note or any other sum in any currency (the
"Original Currency") into another currency (the "Other
Currency"), the parties hereby agree, to the fullest extent
permitted by law, that the rate of exchange used shall be that
at which in accordance with normal banking procedures each
Bank or (as applicable) the Agent (in its capacity as Agent)
could purchase the Original Currency with the Other Currency
after any premium and costs of exchange on the Business Day
preceding that on which final judgment is given or any fee is
to be paid.
(iii) The obligation of the Borrowing Group in
respect of any sum due from them to any Bank hereunder shall,
notwithstanding any judgment in an Other Currency, whether
pursuant to a judgment or otherwise, be discharged only to the
extent that, on the Business Day following receipt by any Bank
of any sum adjudged to be so due in such Other Currency, such
Bank may in accordance with normal banking procedures purchase
the Original Currency with such Other Currency. If the amount
of the Original Currency so purchased is less than the sum
originally due to such Bank in the Original Currency, the
applicable Borrower agrees, as a separate obligation and
notwithstanding any such judgment or payment, to indemnify
such Bank against such loss."
SECTION 2.17. Section 2.17 is hereby deleted and replaced with the
following:
FACILITY FEE. The Borrowing Group shall pay to the Agent for
the ratable benefit of the Banks a facility fee at the per
annum rate set forth in the performance grid on the average
daily
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amount of each Commitment of such Bank, whether used or
unused; to be paid quarterly in arrears commencing on March
31, 1998, and thereafter on the last day of each Quarter and
on the termination of the Commitments.
SECTION 2.19 Section 2.19(b) is hereby deleted and replaced with the
following:
(b) NBD agrees that so long as (i) all of the Commitments
remain in effect, and (ii) NBD has an affiliate(s) which
issues Bank Guaranties, NBD's affiliate will, in NBD's name,
issue such Bank Guaranties for the account of any member of
the Borrowing Group if such member may from time to time
request subject, however, to the conditions of this Agreement.
SECTION 2.31 The following new Section 2.31, entitled "VOLUNTARY
CONVERSION OF DOLLAR DENOMINATION REVOLVING LOANS; REDENOMINATION OF REVOLVING
LOANS.", is added at the end of Article II:
"Section 2.31 VOLUNTARY CONVERSION OF DOLLAR DENOMINATION
LOANS; REDENOMINATION OF REVOLVING LOANS. (a) The Borrowing Group shall
have the option to convert on any Business Day all or a portion at
least equal to the applicable minimum Borrowing amount of the
outstanding principal amount of its Revolving Loans denominated in
Dollars and bearing interest at an Interest Option into a Borrowing or
Borrowings at the other Interest Option, provided that: (i) no partial
conversion of a Borrowing shall reduce the outstanding principal amount
of any such Borrowing to less than the minimum Borrowing amount
applicable thereto; (ii) any conversion from the Overall Libor Rate to
the Base Rate shall be made on, and only on, the last day of an
Interest Period for such Borrowing; (iii) any Borrowing at the Base
Rate may only be converted into a Borrowing at the Overall Libor Rate
if no Event of Default is in existence on the date of the conversion
unless the Banks otherwise agree; and (iv) Borrowings under the Overall
Libor Rate resulting from this Section 2.31 shall conform to the
requirements of Section 2.04. Each such conversion shall be effected by
the Borrowing Group giving the Agent at its principal place of
business, prior to 11:00 A.M. (EST), at least three (3) business days'
prior written notice (or telephonic notice promptly confirmed in
writing if so requested by the Agent), specifying the Revolving Loan to
be so converted, and the Interest Option to be converted into and, if
to be converted into a borrowing at the Overall Libor Rate, the
Interest Period to be initially applicable thereto. The Agent shall
give each Bank prompt notice of any such proposed conversion affecting
any of its Revolving Loans.
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For the avoidance of doubt, the prepayment or repayment of any
Revolving Loans out of the proceeds of other Revolving Loans by the
Borrowing Group is not considered to be a conversion of a revolving
into other Revolving Loans.
(b) The Parent may, upon notice to the Agent at least five (5)
business days prior to the date of the proposed redenomination, request
that all Revolving Loans comprising the same Borrowing by the Parent be
redenominated from Dollars into Pounds Sterling, or from Pounds
Sterling into Dollars; provided, however, that any redenomination of a
Revolving Loan bearing interest at the Overall Libor Rate shall be made
on, and only on, the last day of an Interest Period for such Revolving
Loan; and provided, further, that no redenomination shall be made which
would cause any Revolving Loan bearing interest at the Base Rate to be
denominated in any currency other than Dollars. Each such notice of
request of a redenomination shall be by telecopier, telex or cable
(confirmed immediately in writing if so requested by the Agent),
specifying (i) the Revolving Loans comprising the Borrowing to be
redenominated, (ii) the date of the proposed redenomination (which
shall be a business day), (iii) the currency into which such Revolving
Loan is to be redenominated, and (iv) if such Revolving Loan if so
redenominated is to bear interest at the Overall Libor Rate, the
denomination of the Interest Period for such Revolving Loan upon being
so redenominated. The Agent shall promptly notify each Bank of any such
requested redenomination. In the case of a request for redenomination
into Pounds Sterling, such redenomination is subject to the
confirmation by each Bank to the Agent, not later than the third
business date of such redenomination that such Bank agrees to such
redenomination, which confirmation shall be notified immediately by the
Agent to the Parent. If any Bank shall not have so provided to the
Agent such confirmation, the requested redenomination will not occur
and the Agent shall promptly notify the Parent and each Bank that a
Bank has not provided such confirmation and that the requested
redenomination will not occur. If each Bank shall have so provided the
Agent such confirmation or if such request is for a redenomination into
Dollars, each Revolving Loan so requested to be redenominated will be
redenominated, on the date specified therefor in such notice of
redenomination, into an equivalent amount thereof in the currency
requested in such notice of redenomination, such equivalent amount to
be determined in accordance with Section 1.03, and in the case of any
such Revolving Loan being so redenominated which will bear interest at
the Overall Libor Rate, such Revolving Loan will have an initial
Interest Period as requested in such notice of redenomination.
SECTION 2.28. The following clause is added at the end of Section 2.28:
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(iii) The proceeds of the Pounds Sterling Credit Facility
shall be used by the Parent to finance the acquisition of the assets of
IMI Kynoch Ltd., a United Kingdom Limited liability company and for
general corporate purposes in accordance with the provisions of this
Credit Agreement.
ARTICLE VII. With respect to the negative covenants contained in
Article VII, Chart UK Investments Limited Partnership and Chart Marston Ltd. are
hereby excepted from all exclusions from such negative covenants in each case
where CHD is excepted from the exclusions from such negative covenants.
SECTION 7.01. The following clause is added as new subsection 7.01
(xi):
"(xi) any Indebtedness for Borrowed Money incurred by Chart
Marston Ltd. for purposes of covering overdrafts and providing
sufficient cash flow for such subsidiary, from a lending
institution in the United Kingdom, so long as the amount
thereof does not exceed (pound)500,000."
SECTION 7.04 Section 7.04 (iii) is hereby amended by deleting the
reference to the sum of "Nine Hundred Twenty Five Thousand dollars ($925,000)"
and replacing it with the sum "Two Million Dollars ($2,000,000)"
In addition, the Banks hereby waive any default of Section 7.04 of the
Credit Agreement which arose during Fiscal Year 1997 as a result of the
aggregate annual rentals of all leases of the Companies exceeding $925,000, to
the extent such default is due to the Cryenco Acquisition.
SECTION 7.05 Section 7.05 is hereby amended by deleting the reference
to "Ten Million Dollars ($10,000,000)" in Section 7.05(v)(B) and replacing it
with the sum "Six Million Dollars ($6,000,000)."
The following clause is added at the end of Section 7.05(vi):
"and an Investment by Chart International, Inc. in the equity
securities of Chart Marston Ltd., not to exceed
(pound)21,000,000.
The following clause is added as new Section 7.05(x):
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"any Guarantee by Chart International, Inc. of any current
liability owing by Chart Marston Ltd., not to exceed
(pound)500,000".
SECTION 7.11 The following clause is added at the end of Section 7.11:
"except that this Section 7.11 shall not prohibit the
acquisition by Chart Marston Ltd. of the assets of IMI Kynoch
Ltd. for a sum not to exceed (pound)21,000,000."
SECTION 7.12 The following sentence is added at the end of Section
7.12:
"Notwithstanding the foregoing, during each of Fiscal Years
1998 and 1999 only, the Companies will be permitted to make
Capital Expenditures in an amount not to exceed Eight Million
Dollars ($8,000,000), determined on a Consolidated basis."
In addition, the Banks hereby waive any default of Section 7.12 of the
Credit Agreement which arose during Fiscal Year 1997 as a result of Capital
Expenditures in excess of the maximum amount permitted under Section 7.12, to
the extent such default is due to the purchase of the assets financed by
performance of that certain Loan Agreement dated July 1, 1996 among GE Capital
Public Finance, Inc., the City of LaCrosse, Wisconsin and ALTEC.
SECTION 7.19 Section 7.19 is hereby amended by deleting the reference
to "Eighteen Million Dollars" ($18,000,000) and replacing it with "Forty-One
Million Dollars" ($41,000,000).
SCHEDULE 4.01 Schedule 4.01 of the Credit Agreement is hereby deleted
and replaced with Schedule 4.01 attached hereto and incorporated herein.
SCHEDULE 7.05 Schedule 7.05 of the Credit Agreement is hereby deleted
and replaced with Schedule 7.05 attached hereto and incorporated herein.
4. CONDITIONS PRECEDENT. It is a condition precedent to the
effectiveness of this Amendment that, prior to or on the date hereof, (as to
items (A) and (E)(1) and (3), below); and prior to or on the date of funding the
first Advance under the Pounds Sterling Credit Facility (as to items (B), (C),
(D), (E)(2), (F), (G) and (H) below), the following items shall have been
delivered to Agent (in form and substance acceptable to Banks):
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(A) a counterpart original of this Amendment executed by Chart
International, Inc., evidencing that Chart International, Inc. is a new
member of the Borrowing Group as of the date hereof.
(B) a counterpart original of this Amendment executed by Chart
UK Investments Limited Partnership and by Chart Marston Ltd.,
acknowledging that each such entity is a "Company" and a "Subsidiary"
pursuant to the Credit Agreement, as amended hereby, and therefore
bound by the negative covenants contained in Article VII of the Credit
Agreement, as amended hereby and the other terms and conditions
applicable to Companies and Subsidiaries thereunder.
(C) a letter from Borrower's counsel setting forth the
structure of the purchase of the assets of IMI Kynoch Ltd. and the
reasons that CHD, Inc., Chart UK Investments Limited Partnership, and
Chart Marston Ltd, cannot be members of the Borrowing Group.
(D) a Stock Pledge Agreement executed by Chart International,
Inc. pledging sixty-six percent (66%) of the stock of Chart Marston
Ltd. as security for the Credit Facility, and original share
certificate(s), along with an executed stock power(s), perfecting the
Agent's security interest in such stock.
(E) a Certificate of the secretary of each member of the
Borrowing Group certifying (1) that such Borrower's Articles of
Incorporation and Code of Regulations have not been amended since the
execution of the Credit Agreement (or certifying that true, correct and
complete copies of any amendments are attached), (2) that copies of
resolutions of the Board of Directors of such Borrower are attached
with respect to the approval of this Amendment and of the matters
contemplated hereby and authorizing the execution, delivery and
performance by such Borrower of this Amendment and each other document
to be delivered pursuant hereto and (3) as to the incumbency and
signatures of the officers of such Borrower signing this Amendment and
each other document to be delivered pursuant hereto;
(F) copies of the organizational documents for each of Chart
UK Investments Limited Partnership and Chart Marston Ltd.;
(G) reimbursement of all of Agent's out of pocket fees and
expenses, including, without limitation attorneys' fees in
consideration of Agent's preparation of this Amendment and its
agreements herein;
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(H) such other documents as Agent may request to implement
this Amendment and the transactions contemplated hereby.
If Banks and Agent shall consummate the transactions contemplated hereby prior
to the fulfillment of any of the conditions precedent set forth above, the
consummation of such transactions shall constitute only an extension of time for
the fulfillment of such conditions and not a waiver thereof.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank that:
(A) none of the representations and warranties made in Section
6.01 of the Credit Agreement has ceased to be true and complete in any
material respect as of the date hereof; and
(B) as of the date hereof no "Possible Default" has occurred
that is continuing.
6. ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS. The Borrowing Group
acknowledges and agrees that, as of the date hereof, all of their outstanding
Obligations to Banks are owed without any offset, defense, claim or counterclaim
of any nature whatsoever.
7. WAIVER. Banks and Agent hereby waive the provisions of Sections 7.01
and 7.05 of the Credit Agreement to the extent that those Sections would
prohibit the Parent from obtaining the foreign exchange facilities referred to
in this Amendment.
8. REFERENCES. On and after the effective date of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", or
words of like import referring to the Credit Agreement, and each reference in
the Revolving Notes or other Loan Documents to the "Credit Agreement",
"thereof", or words of like import referring to the Credit Agreement shall mean
and refer to the Credit Agreement as amended hereby. The Credit Agreement, as
amended by this Amendment, is and shall continue to be in full force and effect
and is hereby ratified and confirmed in all respects. The execution, delivery
and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Banks or Agent under the Credit Agreement or constitute a
waiver of any provision of the Credit Agreement except as specifically set forth
herein.
9. COUNTERPARTS AND GOVERNING LAW. This Amendment may be executed in
any number of counterparts, each counterpart to be executed by one or more of
the parties but, when taken together, all counterparts shall constitute one
agreement. This Amendment, and the respective rights and obligations of the
parties hereto, shall be construed in accordance with and governed by Ohio law.
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IN WITNESS WHEREOF, the Borrowing Group, Banks and Agent have executed
this Amendment at the time and place first above mentioned.
CHART INDUSTRIES, INC. PROCESS SYSTEMS INTERNATIONAL,
INC.
By: /s/ Don A. Baines By: /s/ Don A. Baines
----------------------------------- ------------------------------------
Don A. Baines, Treasurer and CFO Don A. Baines, Assistant Clerk
ALTEC INTERNATIONAL LIMITED NATIONAL CITY BANK
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, By: /s/ Anthony J. DiMare
INC., its sole general partner -------------------------------------
Anthony J. DiMare, Senior Vice President
By: /s/ Don A. Baines
-----------------------------------
Don A. Baines, Secretary and Treasurer
ALTEC, INC. NBD BANK
By: /s/ Don A. Baines By: /s/ Paul R. DeMelo
----------------------------------- -------------------------------------
Don A. Baines, Assistant Secretary Paul R. DeMelo, Vice President
GREENVILLE TUBE CORPORATION NATIONAL CITY BANK, as Agent
By: /s/ Don A. Baines By: /s/ Anthony J. DiMare
----------------------------------- -------------------------------------
Don A. Baines, Assistant Secretary Anthony J. DiMare, Senior Vice President
CHART MANAGEMENT COMPANY, INC. CRYENCO SCIENCES, INC.
By: /s/ Don A. Baines By: /s/ Don A. Baines
----------------------------------- -------------------------------------
Don A. Baines, Secretary and Treasurer Don A. Baines, Secretary and Treasurer
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CHART INDUSTRIES FOREIGN SALES
CORPORATION CRYENCO, INC.
By: /s/ Don A. Baines By: /s/ Don A. Baines
----------------------------------- ---------------------------------------
Don A. Baines, Secretary and Treasurer Don A. Baines, Secretary, Treasurer and
Chief Financial Officer
The undersigned hereby acknowledges and agrees that as of the date hereof it is
a member of the Borrowing Group, subject to all the terms and conditions of the
Credit Agreement, as amended.
CHART INTERNATIONAL, INC.
By: /s/ Don A. Baines
---------------------------------
Don A. Baines, Treasurer and
Chief Financial Officer
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The undersigned hereby execute this Second Amendment to Credit Agreement in
order to acknowledge that each of them is a "Company" and a "Subsidiary" and
therefore bound by the terms and conditions of the Credit Agreement, as amended
hereby, applicable to Companies and Subsidiaries, including, without limitation,
the negative convenants contained in Article VII of the Credit Agreement,
subject to exception as provided herein. Notwithstanding the foregoing neither
of the undersigned is a member of the Borrowing Group nor liable for any payment
obligations under the Credit Agreement, as amended hereby.
CHART UK INVESTMENTS LIMITED PARTNERSHIP
By Chart Management, Inc.
By: /s/ Don A. Baines
-------------------------------------------
Don A. Baines, Secretary and Treasurer
CHART MARSTON LTD.
By: /s/ Don A. Baines
-------------------------------------------
Don A. Baines, Directory
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SCHEDULE 4.01
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COMPANY GOOD STANDING
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LOCATION(S)
------------
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Chart Industries, Inc. Delaware*
Ohio
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ALTEC International Limited Partnership Delaware*
Wisconsin
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ALTEC, Inc. Wisconsin*
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Chart Management Company, Inc. Ohio*
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Chart Industries Foreign Sales Corporation U.S. Virgin Islands*
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Process Systems International, Inc. Massachusetts*
New Hampshire
California
Ohio
Louisiana
Washington
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Greenville Tube Corporation Arkansas*
Pennsylvania
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CHD, Inc. Delaware*
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Chart Acquisition Company Delaware*
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Cryenco Sciences, Inc.* Delaware*
Colorado**
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Cryenco, Inc.* Colorado*
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Cryenex, Inc. Delaware*
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Chart International Inc. Delaware*
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Chart Marston Limited United Kingdom*
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Chart UK Investments Limited Partnership United Kingdom*
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*State of Organization
17
PART I
------
Capital Structure
-----------------
Owners of Chart Industries, Inc. common stock include:
Arthur S. Holmes 2,656,737 shares directly 18.4%
2,654,340 shares indirectly 18.4%
Charles S. Holmes 1,497,157 shares directly 10.3%
26,000 shares indirectly 0.2%
Gintel Equity Management 1,356,750 shares 9.4%
beneficially
Chart Industries, Inc. owns:
30,000 shares AlTEC, Inc. (100%)
100 shares Chart industries Foreign Sales Corporation (100%)
750 shares Chart Management Company, Inc. (100%)
6,840 shares Greenville Tube Corporation (100%)
200 shares Process Systems International, Inc. (100%)
shares of Chart International Inc. (100%)
18
Part I cont'd
ALTEC, Inc. owns:
1,500 shares CHD, Inc. (100%)
Greenville Tube Corporation owns:
1000 shares of Chart Acquisition Company (100%)
In addition, the ALTEC International Limited Partnership is owned:
95% by CHD, Inc. and
5% by Chart Management Company, Inc.
The Chart International Limited Partnership is owned:
96% by CHD, Inc. and
2% by Chart Management Company, Inc.
Chart International Inc. owns:
2 shares of Chart Marston Limited (100%)
PART II
-------
Indebtedness for Borrowed Money
-------------------------------
Process Engineering Division of Process systems International, Inc. - $80,000.00
Note payable to BancBoston Ventures, 100 Federal St., Boston, MA 02110,
principal payments of $4,000.00 plus accrued interest at 10% per annum payable
on the first day of each January, April, July and October until July 1, 1997.
The current principal balance is $4,000.00.
ALTEC International Limited Partnership and Chart Industries, Inc. -
$5,000,000.00 Industrial Development Revenue Bonds dated July 1, 1996 to GE
Capital Public Finance, Inc. as Lender and to the City of LaCrosse, Wisconsin as
issuer. The bonds are collateralized in the next five years as follows: 1997 -
$361,000; 1998 - $405,000; 1999 - $431,000; 2000 - $459,000 and 2001 - $489,000.
The Company is required to spend these monies on the current expansion and has
commitments with vendors covering this work. All funds should be released from
escrow by the end of 1997. The current balance is $4,634,000.00.
USL Capital, Lessor
Cryenco Sciences, Inc., Lessee
19
Items Leased: Forklift, Overhead Crane, Paint Booths, Compressor
Outstanding Balance as of July 31, 1997: $148,107.35
Monthly Payment: $8,266.29
Lease Expires: May, 1999
USL Capital, Lessor
Cryenco Sciences, Inc., Lessee
Items Leased: Telephone System, Computer system, Copy Machine
Outstanding Balance as of July 31, 1997: $213,990.96
Monthly Payment: $6,692.16
Lease Expires: November, 2000
20
SCHEDULE 7.05
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Existing Investments
--------------------
Besides the investments set forth on Schedule 4.01, the Companies have the
following investments:
Process Systems International, Inc. has a $2,000.00 investment
in founders stock of Paramag, a corporation which has been
developing processes which would use Process Systems
International, Inc. equipment.
Chart Industries, Inc. periodically makes overnight
investments of idle cash through National City Bank.
Chart Industries, Inc. has (in connection with the Chart
Marston Limited acquisition of IMI Kynoch Ltd.), invested
approximately 17.5 million dollars in Chart UK Investment
Limited Partnership through its partners Chart Management
Company, Inc. and CHD, Inc. Chart UK Investment Limited
Partnership lends 17.5 million dollars to Chart Marston
Limited on a 364 day basis.
Chart Industries, Inc. has (in connection with the Chart
Marston Limited acquisition of IMI Kynoch Ltd.), invested
approximately 4 million pounds sterling in Chart International
Inc. which lends that sum to Chart Marston Limited on a 364
day basis.
+Cryenco, Inc., a wholly-owned subsidiary of Cryenco Sciences,
Inc., owns 50% of Cryomex S.A. de C.V.
+ Upon consummation of the Cryenco Sciences, Inc. acquisition