<PAGE>
<PAGE> 1 UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
Form 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended March 31, 1995
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission File No. 1-9344
AIRGAS, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-0732648
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 Radnor Corporate Center, Suite 550
100 Matsonford Road, Radnor, Pennsylvania 19087-4579
(Address of principal executive offices) (Zip Code)
(610) 687-5253
(Registrant's telephone number, including area code)
Securities Registered Pursuant to Section 12 (b) of the Act:
Name of Each Exchange
Title of Each Class on Which Registered
______________________________________ _____________________
Common Stock, par value $.01 per share New York Stock Exchange
Securities registered pursuant to Section 12 (g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES X NO
_________ ________
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the 26,086,772 shares of voting stock held
by non-affiliates of the registrant on May 22, 1995 was $694.6 million. For
purposes of this calculation, only executive officers and directors were
deemed to be affiliates.
The number of shares of Common Stock outstanding as of May 22, 1995 was
30,784,645.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Proxy Statement for the Annual Meeting of Stockholders to
be held August 7, 1995 is partially incorporated by reference into Part III.
Those portions of the Proxy Statement included in response to Item 402(k) and
Item 402(l) of Regulation S-K are not incorporated by reference into Part III.
<PAGE> 2
AIRGAS, INC.
TABLE OF CONTENTS
PART I
ITEM PAGE NO.
_____ ________
1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
4. Submission of Matters to a Vote of Security Holders. . . . . . . . . . .10
PART II
5. Market for the Company's Common Stock and Related Stockholder Matters . 11
6. Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . 12
7. Management's Discussion and Analysis of Financial Condition and Results
of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. Financial Statements and Supplementary Data . . . . . . . . . . . . . . 19
9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 19
PART III
10. Directors and Executive Officers of the Company . . . . . . . . . . . . 20
11. Executive Compensation. . . . . . . . . . . . . . . . . . . . . . . . . 20
12. Security Ownership of Certain Beneficial Owners and Management. . . . . 20
13. Certain Relationships and Related Transactions. . . . . . . . . . . . . 20
PART IV
14. Exhibits, Financial Statement Schedule, and Reports on Form 8-K . . . . 21
<PAGE> 3
PART I
ITEM 1. BUSINESS.
General
Airgas, Inc. ("Airgas" or the "Company") classifies its operations in two
business segments: distribution and manufacturing. Distribution revenues
currently represent 95% of total revenues and 92% of the Company's operating
income. Financial information by business segment can be found in note 20 to
the Company's consolidated financial statements.
The distribution business is conducted through approximately 400
locations in 37 states and Canada. Principal products distributed include:
industrial, medical and specialty gases and a wide selection of name-brand
welding equipment, accessories and industrial protective equipment
("hardgoods"), including electrode holders, welding wire, cable lugs and
connectors, hard hats, welding helmets, hearing protectors, goggles, face
shields, safety glasses, welding machines and electrodes. In connection with
the distribution of gases, the Company rents industrial gas cylinders and bulk
storage tanks to its customers. Additionally, acetylene gas is manufactured
and sold as part of the Company's distribution business. Since its formation,
the Company's strategy has been to expand through a program of acquiring
independent distributors. The Company believes that its industrial gas
distribution network is the largest and fastest growing industrial gas
distribution system in the United States.
Manufacturing operations include the production of carbon products, calcium
carbide and nitrous oxide.
THE DISTRIBUTION BUSINESS
Industry Background and Company Strategy
The industrial gas distribution market is broad and includes most major
industries. The Company sells nitrogen, oxygen, argon, helium, acetylene,
carbon dioxide, nitrous oxide, hydrogen and welding gases plus a variety of
medical and specialty gases to a diverse customer base. Gases are distributed
and stored in industrial gas cylinders and bulk storage tanks. Hardgoods sold
through its distribution network include: protective equipment such as hard
hats, welding helmets, goggles, face shields and protective glasses, welding
machines and welding consumables and accessories, such as electrodes,
electrode holders and cable connectors.
The United States market for industrial gases is approximately $6
billion. Sales to major users of industrial gases that have the capacity to
accept large bulk shipments or pipeline deliveries are generally serviced
directly by industrial gas producers and account for approximately $3 billion
of sales. Historically, industrial gas producers have focused on this segment
of the market which is very capital intensive. The remaining $3 billion of
industrial gas sales are made to small bulk users and cylinder gas customers.
These small bulk users and cylinder gas customers are also believed to
purchase $3 billion annually of hardgoods. Small bulk users and cylinder gas
customers are served by a fragmented distribution system of approximately
1,000 distributors, the majority of which are independently owned. The Company
concentrates on the small bulk, cylinder gas, welding and protective equipment
segment of the market. This segment is less capital intensive because of the
long useful lives of the fixed assets acquired, principally cylinders.
<PAGE> 4
Acquisition Program
Since May 1986, the Company has acquired over 165 industrial gas
distributors. These distributors are organized into four operating divisions
with approximately 400 locations in 37 states and Canada. The four operating
divisions provide the Company with a national industrial gas distribution
network that is unique to the industry.
The Company's principal business strategy is to continue to expand its
distribution network through a program of acquiring independent distributors.
The industrial gas distribution industry continues to undergo a consolidation
process which the Company believes will continue to present it with
opportunities to acquire industrial gas distributors.
The Company believes that its principal competitive advantages in
acquiring distributors are its operating expense discipline, its
well-organized acquisition program, flexibility in structuring acquisitions to
meet sellers' needs and ability to offer sellers a continuing role in
management. In seeking to acquire distributors, the Company competes with
industrial gas producers and other large independent distributors.
Management identifies acquisition candidates with the assistance of the
Company's Advisory Board which consists of individuals with extensive
experience in the industrial gas industry and through contacts made by the
Company's nationwide network of subsidiary managers.
Management believes the Company's return on capital can be maximized by
financing distributor acquisitions primarily with internally generated funds
and debt. The Company has been able to obtain debt financing due, in part, to
its ability to generate cash flow from operating activities and the long
useful lives and relatively stable market values of the acquired assets,
principally cylinders.
Foreign Investments
During fiscal 1995, the Company entered into agreements to acquire
interests in certain foreign distribution operations in Poland, India and
Indonesia. At March 31, 1995, the total investment in foreign operations was
less than 1% of total assets. The Company will continue to evaluate foreign
distribution opportunities, however, its principal focus remains on North
American expansion.
Operating Policies
The Company believes that industrial gas distributors are best managed at
the local level by entrepreneurial, incentive-driven executives with
backgrounds in the industrial gas industry. The president of each distribution
subsidiary is typically a former owner or key employee of the acquired
business or an experienced industrial gas executive recruited by management.
The continuity afforded by retaining the key employees of an acquired business
combined with local management is essential because the industrial gas
distribution business is local in nature and is dependent upon satisfied
repeat customers.
<PAGE> 5
While managers are given a high degree of autonomy and operating control,
the Company has developed standardized management reporting and operations
review systems to monitor profitability and internal growth. Operations
personnel and the Company's internal audit department perform in-depth reviews
of subsidiary operations and prepare reports containing, among other things,
recommendations regarding operating efficiencies, financial controls,
personnel and safety. These personnel monitor the implementation of their
recommendations through follow-up systems and visits.
Customer Base
The majority of the Company's gases are stored in bulk tanks at the
Company's "cylinder fill" facilities and are compressed into cylinders for
distribution to customers or, in the case of bulk customers, in tank trucks
for storage in bulk tanks at the customer's business location. The Company
emphasizes sales to cylinder and small bulk gas customers.
The distribution of industrial gases historically has been to customers
engaged in the business of welding and metal fabrication. In order to better
serve these customers, industrial gas distributors have traditionally sold
hardgood items through their distribution branch locations. As certain sectors
of the economy have grown, such as the electronics and chemicals industries,
and as new applications for gases have developed, the customer base of the gas
distribution business has broadened significantly to include businesses in
almost every major industry, from medical and high technology to consumer and
basic industries. For example, the food and beverage industry uses carbon
dioxide and nitrogen; the electronics industry uses oxygen, nitrogen, argon
and hydrogen; the healthcare industry uses oxygen, nitrogen and nitrous oxide;
and the chemical and fiber industries use nitrogen.
Specialty gases, including ultra high purity gases, are used in many
industries. The Company currently operates 22 specialty gas mini-labs in 18
states, capable of filling high purity gases, blending multi-component gas
mixtures and providing quality control services. The Company anticipates
continuing growth in this product area. The principal drivers for market
growth include: (1) environmental regulations, such as the Clean Air Act,
water testing and pollution remediation and testing and monitoring (2) quality
control services where in-line chromatography and spectrography are used to
analyze samples and (3) growth of environmental, research and clinical
laboratories.
The Company also concentrates its efforts in the small bulk gas market.
The primary gases that the Company sells in bulk are liquid oxygen, nitrogen,
argon, carbon dioxide, and sales of hydrogen, helium and nitrogen in high-
pressure tube trailers. The Company charges customers rent for the use of
bulk tanks and tube trailers which are placed on the customer's property. As
large industrial gas producers continue to shift their focus from small bulk
customers to large bulk shipments, the Company believes there are growth
opportunities in marketing to these small bulk customers, which it can serve
more effectively than industrial gas producers.
Management believes that the gas portion of the distribution business is
partially resistant to downturns in the business cycle due to the following
factors: 1) gases frequently represent a fixed cost of operations that do not
necessarily decline with production levels; 2) gases are required for
maintenance and renovation activities which tend to increase during an
economic downturn; 3) industries less subject to the effects of an economic
downturn are major purchasers of gases; and 4) gas purchases represent a small
<PAGE> 6
portion of a typical user's overall cost of operation and, therefore, do not
represent a large cost-cutting item. Management believes the Company's broad
customer base and the geographic diversity of its gas distribution business
also help to reduce the adverse effects of an economic downturn on the
Company.
Products
Gases distributed by the Company include oxygen, nitrogen, hydrogen,
argon, helium, acetylene, carbon dioxide, nitrous oxide and specialty gases.
In addition to gases, the Company distributes a wide selection of name-brand
hardgoods, including electrode holders, welding wire, cable lugs and
connectors, hard hats, welding helmets, hearing protectors, goggles, face
shields, safety glasses, welding machines and electrodes. Of the Company's
fiscal 1995 sales from distribution, approximately 52 percent represent sales
of gases and rentals of cylinders and bulk tanks, and 48 percent
represent hardgood sales. Airgas has concentrated on growing its gas and
cylinder rental revenues through the implementation of gas oriented marketing
programs and by focusing on small bulk customers.
Suppliers
The Company purchases industrial, medical and specialty gases pursuant to
requirements contracts from all four of the major producers of industrial
gases in the United States and three regional producers. The Company believes
that if a contractual arrangement with any supplier of gases were terminated,
it would be able to locate alternative sources of supply without significant
cost increases and with no disruption of service.
The Company purchases hardgoods from name-brand manufacturers and
suppliers. For certain products, the Company has negotiated favorable pricing
based on national purchasing arrangements and is reducing its investment in
hardgood inventories by consolidating vendors.
MANUFACTURING AND RELATED BUSINESSES
Nitrous Oxide
The Company's subsidiary, Nitrous Oxide Corp. ("Nitrous Oxide"), produces
nitrous oxide which is used in various medical and commercial applications.
Nitrous oxide is used as an anesthetic in the medical and dental fields, as a
propellant in the packaged food business and is utilized in the manufacturing
process of certain high technology electronic industries. Nitrous Oxide
operates manufacturing facilities located in Yazoo City, Mississippi and
Donora, Pennsylvania.
Carbon Products
Through its Midwest Carbide subsidiary located in Keokuk, Iowa, the
Company manufacturers carbon electrode paste, carbon ramming mix ("Ramblox")
and electrically calcined anthracite ("ECA"). Midwest Carbide is the nation's
primary manufacturer of carbon electrode paste which is used as a consumable
electrode in the production of special alloy steel, nickel and other metals.
Ramblox is a carbon mixture used in the lining of non-ferrous metals furnaces.
ECA is used as an ingredient in carbon mixes used in the aluminum industry as
an additive in the production of certain metals. Sales of electrode paste,
Ramblox and ECA are conducted through a marketing organization which owns more
<PAGE> 7
than five percent of the Company's outstanding common stock (see Item 13.
Certain Relationships and Related Transactions).
Calcium Carbide
The Company is a partner with Elkem Metals Company ("Elkem") in a joint
venture (Elkem-American Carbide Company) which primarily sells calcium carbide
which is used in the production of acetylene gas. The Company and Elkem have
equal control over activities of the joint venture. The Company accounts for
its investment in the joint venture using the equity method of accounting.
Earnings and losses are allocated 55% to the Company and 45% to Elkem.
The Company and Elkem receive certain fees, based on net sales, for
acting as agents for the joint venture. Additionally, as general manager of
the joint venture, Elkem receives a management fee based on net sales. The
Company also operates a manufacturing facility in Pryor, Oklahoma.
COMPETITION
Each of the major business areas in which the Company participates is
highly competitive. Some competitors are larger than the Company and have
greater resources.
The Company's industrial gas distribution operations compete with
independent distributors and vertically integrated gas producers such as Air
Products and Chemicals, Praxair, Liquid Air Corporation of America, BOC Gases
Group and others; all of which have distribution operations. Competition in
the industrial gas distribution market is based primarily on customer service
and price. The Company also purchases industrial gases pursuant to
requirement contracts from all four of the above major producers of industrial
gases.
Management believes that competition for the Company's manufactured
products is based primarily on product quality, price and quality of customer
service.
REGULATORY AND ENVIRONMENTAL MATTERS
The businesses of the Company's subsidiaries are subject to federal and
state laws and regulations adopted for the protection of the environment and
the health and safety of employees and users of the Company's products. The
Company has programs for the operation and design of its facilities which meet
or exceed applicable environmental rules and regulations. The Company
believes that it is in compliance in all material respects with applicable
environmental laws and regulations. The Company is in varying stages of
investigation or remediation of potential, alleged or acknowledged
contamination of current or former facilities. Expenditures for environmental
purposes during 1995 were not material.
<PAGE> 8
INSURANCE
The Company maintains liability and property insurance which is usual and
customary for companies operating in its business segments. As of March 31,
1995, the Company had a liability insurance limit of $51 million. The
liability insurance is subject to per occurrence deductible amounts of $1
million for product liability, general liability and workers' compensation
claims, and $500 thousand for motor vehicle liability.
The nature of the Company's business may subject it to product and
general liability lawsuits. To the extent that the Company is subject to
claims which exceed its liability insurance coverages, such suits could have a
material adverse effect on the Company's financial position, results of
operations or liquidity. No such material lawsuits are pending against the
Company or any of its subsidiaries (see Item 3. Legal Proceedings).
EMPLOYEES
On March 31, 1995, the Company employed approximately 4,100 persons of
whom approximately 5% were covered by collective bargaining agreements. The
Company believes it has good relations with its employees and has not
experienced a strike or work stoppage in the past eight years.
PATENTS, TRADEMARKS AND LICENSES
The Company holds trademark registrations for "Airgas," "ECA", "Ramblox",
"Dyna-Switch", "Va-Weld", and a method for purification of acetonitrile. The
Company believes that its businesses as a whole are not materially dependent
upon any single patent, trademark or license.
EXECUTIVE OFFICERS AND CERTAIN SIGNIFICANT EMPLOYEES OF THE COMPANY
The executive officers of the Company are listed below:
Name Age Position
____ ___ ________
Peter McCausland (1)(2) 45 Chairman of the Board, President and Chief
Executive Officer
E. Pat Baker (2) 55 Division President - Eastern Division
Alfred B. Crichton (2) 47 Division President - Western Division
Kenneth A. Keeley (2) 54 Division President - Central Division
Hermann Knieling (2) 57 Division President - Southern Division
William A. Rice, Jr. (2) 48 Division President -Industrial Distribution
and Purchasing
Britton H. Murdoch (2) 37 Vice President - Finance and Chief
Financial Officer
Gordon L. Keen, Jr. (2) 50 Vice President - Corporate Development
William E. Sanford (2) 35 Vice President - Sales and Marketing
Scott M. Melman (2) 38 Vice President - Chief Administrative Officer
Ronald W. Beebe (2) 46 Vice President - Chief Information Officer
Rudi G. Endres (2) 51 Vice President - International
_____________
(1) Member of the Board of Directors
(2) Executive Officer
<PAGE> 9
Mr. McCausland has been a Director of the Company since June 1986, the
Chairman of the Board and Chief Executive Officer of the Company since May
1987, President since April 1, 1993 and from June 1986 to August 1988 and
Chairman and Chief Executive Officer of US Airgas since its organization in
February 1982. From January 1982 until June 1990, Mr. McCausland was a partner
in the law firm of McCausland, Keen & Buckman, Radnor, Pennsylvania, which
provides legal services to the Company.
Mr. Baker has been the Company's Division President - Eastern Division
since April 1, 1995. Mr. Baker served as a Regional Vice President from May
1991 to February 1993 and President of Lone Star Airgas since the acquisition
of Lone Star Airgas (formerly West Texas Welders Supply) in October 1988 to
March 1995. Prior to joining Airgas, Mr. Baker was President and owner of
West Texas Welders Supply from August 1981 to October 1988.
Mr. Crichton has been the Company's Division President - Western Division
since February 3, 1993. Mr. Crichton served as a Regional Vice President from
May 1991 to February 1993 and as President of Sierra Airgas since the
acquisition of Sierra Airgas (formerly Moore Bros.) in January 1987. Mr.
Crichton was employed by Union Carbide Industrial Gases (UCIG) from 1969
through 1986, and prior to joining Moore Bros., was President of a subsidiary
of UCIG.
Mr. Keeley has been the Company's Division President - Central Division
since February 3, 1993. Mr. Keeley served as a Regional Vice President from
April 1989 to February 1993 and as President of Michigan Airgas from March
1984 to March 1989. Prior to 1984, Mr. Keeley owned and operated an industrial
gas distributor which was sold to the Company.
Mr. Knieling has been the Company's Division President - Southern
Division since April 1, 1995. Mr. Knieling served as Division President -
Eastern Division from February 3, 1993 to March 1995. Mr. Knieling served as
a Regional Vice President from June 1990 to February 1993 and as President of
Gulf States Airgas from June 1989 to February 1993. Mr. Knieling owned and
operated an industrial gas distributor which was sold to the Company in 1989.
Also, Mr. Knieling served in various capacities for Hoechst AG during a period
of 18 years, and, prior to his leaving Hoechst in 1982 was President and Chief
Executive Officer of its subsidiary, MG Burdett Gas Products Company.
Mr. Rice has been the Company's Division President - Industrial
Distribution and Purchasing since April 1, 1995 and served as Vice President -
Purchasing from August 1, 1993 to March 1995. Until August 1993, he was
President of Virginia Welding Supply, an industrial gas distributor which was
acquired by the Company in July 1992. Prior to joining Airgas, Mr. Rice was
President and a majority owner of Virginia Welding Supply. Mr. Rice has over
20 years of industry experience and serves on the boards of various companies.
Mr. Murdoch has been the Vice President - Finance and Chief Financial
Officer of the Company since June 1, 1990 and served as Vice President -
Corporate Development from September 1987 until May 1990. Mr. Murdoch served
as a Vice President of Philadelphia National Bank from 1983 to September 1987.
Mr. Keen has been the Vice President - Corporate Development since
January 1, 1992. From January 1982 until December 1991, Mr. Keen was a partner
in the law firm of McCausland, Keen & Buckman, Radnor, Pennsylvania, which
provides legal services to the Company.
<PAGE> 10
Mr. Sanford has been Vice President - Sales and Marketing since February
3, 1993 and served as President of Cascade Airgas from March 1989 to February
1993. From May 1984 to February 1989 Mr. Sanford served as Vice President --
Sales and Marketing for American Carbide and Carbon Corp., another subsidiary
of the Company.
Mr. Melman has been Vice President - Chief Administrative Officer since
April 1, 1995. Mr. Melman served as Vice President - Corporate Controller
from August 1994 to March 1995 and Corporate Controller from August 1986 to
July 1994. Prior to joining Airgas, Mr. Melman was the Controller for
Integrated Circuit Systems, Inc. from November 1983 to July 1986, and prior to
joining Integrated Circuit Systems, Inc., was a Tax Manager for KPMG Peat
Marwick LLP.
Mr. Beebe has been Vice President - Chief Information Officer since April
1, 1995 and Vice President - Administration from May 1991 to March 1995 and
served as Group Controller from August 1988 to April 1991. Mr. Beebe was
controller of Michigan Airgas from April 1985 to July 1988. Prior to that, Mr.
Beebe served in key management positions for several emerging businesses.
Mr. Endres has been the Vice President - International since January
1993. Mr. Endres served as Vice President - Marketing from July 1991 until
December 1992. From February 1987, Mr. Endres served as General Manager and
Vice President for the western region of Airgas. Prior to joining Airgas, Mr.
Endres served for 18 years in various positions nationally and internationally
for Messer Griesheim, a major producer of industrial gases headquartered in
Germany. His last position was Vice President for Specialty Gases and
Chemicals at MG Industries in Valley Forge, PA.
ITEM 2. PROPERTIES.
The Company has offices, manufacturing and distribution facilities in 37
states and Canada. The principal executive offices of Airgas are located in
leased space in Radnor, Pennsylvania.
The Company's manufacturing segment produces carbon products at its
Keokuk, Iowa, facility; calcium carbide at its Pryor, Oklahoma, facility; and
nitrous oxide at its Donora, Pennsylvania and Yazoo City, Mississippi
facilities. Manufacturing facility utilization during 1995, based on market
demand, has ranged from 65 to 100 percent.
The Keokuk and Pryor facilities are owned by the Company. The Donora
plant is located on property leased through the year 1996. The Yazoo City
property is owned by the Company, however, it will revert to the local
municipality if the plant terminates operations. The Keokuk, Pryor and Donora
facilities are pledged as collateral under Industrial Development Board
revenue bonds (see note 8 to the Company's consolidated financial statements).
The Company's distribution segment conducts business from its 400
industrial gas and welding supply locations in 37 states and Canada. These
locations are either owned or are leased from third parties or from employees
of the Company who were previous owners of businesses acquired on terms
consistent with commercial rental rates prevailing in the surrounding rental
market. Nineteen distribution locations in 12 states include acetylene
manufacturing plants. The Company's acetylene plants operated at
approximately 60 percent of capacity during 1995.
<PAGE> 11
The Company believes that its facilities are adequate for its present
needs and that its properties are generally in good condition, well maintained
and suitable for their intended use.
ITEM 3. LEGAL PROCEEDINGS.
The Company and its subsidiaries are parties to pending legal proceedings
arising out of their business operations. The proceedings involve claims for
personal injuries, breach of contract, product warranty and product design,
and claims involving employee relations and certain administrative
proceedings. Management does not believe that the eventual outcome of any
litigation to which the Company or its subsidiaries are parties would have a
material adverse effect on the consolidated financial position, results of
operations or liquidity.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
<PAGE> 12
PART II
ITEM 5. MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS.
The Company's Common Stock is listed on the New York Stock Exchange
(ticker symbol: ARG). The following table sets forth, for each quarter during
the last two fiscal years, the high and low sales prices as reported by the
New York Stock Exchange.
High Low
---- ---
1995 Fiscal
First Quarter $27.63 $20.63
Second Quarter 28.50 23.50
Third Quarter 29.88 20.50
Fourth Quarter 26.50 19.63
1994 Fiscal
First Quarter (1) $16.31 $11.19
Second Quarter (1) 19.75 15.63
Third Quarter (1) 23.00 17.75
Fourth Quarter 26.00 19.75
________________
(1) Adjusted to reflect a two-for-one stock split effective on November 9,
1993 (See note 9 to the Company's consolidated financial statements).
On April 30, 1995, there were approximately 11,000 holders of record of
the Company's Common Stock.
The present policy of the Company is to retain earnings to provide funds
for the operation and expansion of its business. Accordingly, the Company has
not paid cash dividends on its Common Stock. Any payment of future dividends
and the amounts thereof will depend upon the Company's earnings, financial
condition, loan covenants, capital requirements and other factors deemed
relevant by the Board of Directors (see note 8 to the Company's consolidated
financial statements).
ITEM 6. SELECTED FINANCIAL DATA
Selected financial data for the Company is presented in the table below
and should be read in conjunction with Management's Discussion and Analysis of
Financial Condition and Results of Operations included in Item 7 and the
Company's consolidated financial statements included in Item 8 herein.
<PAGE> 13
(amounts in thousands except per share data):
Years Ended March 31, (6)
___________________________________________
(3)
1995 1994 1993 1992 1991
____ ____ ____ ____ ____
Operating Results:
Net sales $687,983 $519,349 $410,771 $351,491 $322,478
Depreciation & amortization(2) 36,868 30,571 28,045 23,670 21,410
Operating income 72,600 48,667 34,367 26,316 17,286
Interest expense, net 17,625 12,486 11,403 12,838 15,179
Income taxes(1) 23,894 16,027 10,811 7,718 3,400
Net earnings 31,479 20,290 12,469 7,292 1,166
Earnings Per Share(4):
Primary:
Net earnings $ .96 $ .63 $ .40 $ .27 $ .05
Fully Diluted:
Net earnings $ .96 $ .63 $ .39 $ .26 $ .05
Balance Sheet Data:
Working capital $ 54,084 $ 47,071 $ 40,253 $ 39,425 $ 48,774
Total assets 645,637 514,897 399,477 338,218 307,576
Current portion of long-term
debt 11,780 10,304 9,923 10,026 7,383
Long-term debt 259,970 205,311 158,629 151,098 149,826
Stockholders' equity(5) 189,652 156,867 127,571 104,931 91,779
_______________
(1) The Company has retroactively adopted Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes" as of April 1, 1992. See
additional information in note 13 to the consolidated financial
statements.
(2) Effective April 1, 1993, the Company changed its estimate of the useful
lives of its acetylene and high pressure cylinders from 20 to 30 years.
This change was made to better reflect the estimated periods during which
these assets will remain in service. The change had the effect of
reducing depreciation expense in 1994 by approximately $3.1 million and
increasing net earnings by $1.9 million or $.06 per share.
(3) During 1991, the Company recorded a $4.2 million pre-tax restructuring
charge related to the disposal of certain businesses and severance costs
associated with downsizing of the Company. Including the restructuring
charge, operating losses of these businesses totalled $5.3 million during
1991. During 1992 and 1993, the restructured businesses were sold.
(4) See notes 3 and 9 to the Company's consolidated financial statements for
information regarding earnings per share calculations and stock split
information.
(5) The Company has not paid any dividends.
(6) During the fiscal years 1991 through 1995, the Company acquired 99
industrial gas distributors.
<PAGE> 14
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Item 7.
FINANCIAL REVIEW
OVERVIEW
The Company's financial results for the year ended March 31, 1995 reflect
substantial growth compared with 1994. Net sales of $688 million, net
earnings of $31.5 million and earnings per share of $.96 represent increases
over 1994 of 32%, 55% and 52%, respectively.
During 1995, the Company benefited from an improved economy, the
acquisition and consolidation of industrial gas distributors and from
continuing improvement efforts. Same-store sales, a comparison of current
period sales to the prior period's sales, adjusted for acquisitions, increased
5% over 1994. The Company's industrial gas distribution acquisition program
continued during 1995 with the acquisition of 25 distributors with annual
sales of approximately $108 million. This follows 18 acquisitions in 1994
with annual sales of approximately $137 million. Consolidation of acquisitions
is enabling economies of scale both nationally and at the local level, which
is resulting in better purchasing power and more cost effective programs for
safety, compliance, training and quality.
The Company expects to achieve improvements in operating results through
the future acquisition of industrial gas distributors, improvement in
operating margins by operating more efficiently and from expanding markets for
its existing products.
The industrial gas distribution industry continues to undergo a
consolidation process which the Company believes will present it with
opportunities to acquire distributors. In seeking to acquire distributors, the
Company anticipates increased competition with industrial gas producers and
with certain other large independent distributors. The Company believes it
will continue to be successful in acquiring distributors since it is the
largest distributor and has the greatest geographic scope combined with the
ability to offer sellers and their employees a continuing management role in a
decentralized entrepreneurial environment.
The Company continues to concentrate on growing its gas and cylinder
rental revenues through the implementation of gas oriented marketing programs,
such as specialty gases, and by focusing on the small bulk business. Sales
related to gas and rent represent 52% or $340.3 million of total distribution
net sales in 1995. The Company has established 22 specialty gas mini-labs
which benefit customers by providing them with approximately 80% of specialty
gas products in their local market. In connection with hardgoods, the Company
is focused on strategically reducing its investment in inventories by
consolidating vendors and negotiating favorable pricing based on national
purchasing arrangements. Hardgoods sales in 1995 account for 48% or $314.1
million of total distribution net sales.
Airgas remains focused on cash flow growth. Historically, operations have
generated sufficient cash flow to finance the Company's operating requirements
while borrowings have been incurred largely to finance acquisitions. Over the
past three years, cash flow from operations has totalled $201.3
<PAGE> 15 AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
million. This strong cash flow has substantially funded the Company's
investment, excluding debt assumed, in acquisitions and capital expenditures
which, for the past three years totalled $222.8 million and $72.7 million,
respectively.
At March 31, 1995, The Company had $148.0 million in unsecured lines of
credit available at favorable rates. The Company's debt-to-equity ratio of
1.43 at March 31, 1995 was up slightly from the prior year of 1.37 primarily
as a result of the repurchases of Company stock.
RESULTS OF OPERATIONS: 1995 COMPARED TO 1994
Net sales increased 32% in 1995 compared to 1994:
<TABLE>
(in thousands)
<CAPTION> 1995 1994 Increase
____ ____ __________
<S> <C> <C> <C>
Distribution $654,381 $486,836 $167,545
Manufacturing 33,602 32,513 1,089
_______ _______ _______
$687,983 $519,349 $168,634
======= ======= =======
</TABLE>
In 1995, distribution sales increased approximately $136 million
resulting from the acquisition of 40 industrial gas distributors since April
1, 1993 and approximately $32 million from same-store sales. Based on
unaudited historical pro forma data, the Company estimates that had all 1995
acquisitions been consummated on April 1, 1994, distribution sales for 1995
would have been approximately $49 million higher. The increase in same-store
sales of approximately 5% is primarily the result of increased volume of
hardgoods sales and increases in gas and rental businesses. The Company
estimates same-store sales based on a comparison of current period sales to
the prior period's sales, adjusted for acquisitions. Hardgoods and gas
volumes have primarily increased as a result of the general improvement in the
economy and certain gas marketing programs. Same-store sales have also
increased slightly as a result of price increases initiated during the current
and prior year. Future same-store sales growth is dependent on continued
growth in the economy and the Company's ability to expand markets for existing
products and to increase prices. The Company believes that sales of hardgoods
are adversely impacted during a recession, and conversely, are typically the
fastest to rebound during an economic recovery.
Sales for the Company's manufacturing operations increased slightly
compared to 1994 primarily as a result of an increase in the volume of lower
margin products.
Compared to 1994, distribution gross profit increases associated with
acquisitions totalled an estimated $69 million. Gross profits associated with
distribution same-store sales growth are estimated to total $16 million. The
same-store gross profit growth is attributable to increased hardgoods volumes
combined with improved gross margins resulting from the Company's national
<PAGE> 16
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
purchasing arrangements, success of gas marketing programs and improved gas
and rental gross margins due to price increases to customers. On a same-store
basis, considering the impact of the change in the Company's sales mix
slightly towards lower margin hardgoods sales, distribution gross margins
increased an estimated .6% compared to 1994.
Selling, distribution and administrative expenses as a percentage of
sales decreased to 34.3% compared to 34.8% in 1994. The decrease is a result
of acquisition consolidation efforts during the past year and from controlling
certain operating costs, such as business insurance through improved claims
management and reduced incident rates. Through improved billing and
collection efforts, the Company has also reduced its bad debt expense and
lowered its accounts receivable days sales outstanding to 44 days compared to
49 days at March 31, 1994. Also, certain operating costs, such as occupancy
costs, are relatively fixed even though the Company's same-store sales have
increased over 1994. Partially offsetting these improvements were normal
salary increases.
Operating income increased 49% in 1995 compared to 1994:
<TABLE>
(in thousands)
<CAPTION>
1995 1994 Increase
(Decrease)
____ ____ __________
<S> <C> <C> <C>
Distribution $66,521 $42,399 $24,122
Manufacturing 6,079 6,268 (189)
______ ______ ______
$72,600 $48,667 $23,933
====== ====== ======
</TABLE>
Distribution operating income as a percentage of net distribution sales
increased to 10.2% compared to 8.7% in 1994. The improvement in distribution
operating income in 1995 was a result of the increase in gross profits from
higher same-store sales, operating income provided by acquisitions and
improved gross profit margins.
Manufacturing operating income decreased $189,000 compared to the prior
year due to a product shift towards lower margin export sales of carbon
products, slightly lower profits from the sale of calcium carbide combined
with higher raw material costs, principally ammonium nitrate, for the
Company's nitrous oxide plants.
Interest expense, net, increased $5.1 million compared to 1994 primarily
as a result of the increase in average outstanding debt associated with the
acquisition of industrial gas distributors since April 1, 1993 combined with
slightly higher interest rates. As discussed in "Liquidity and Capital
Resources" below, the Company has hedged floating interest rates under certain
borrowings with interest rate swap agreements.
<PAGE> 17
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Income tax expense represented 43.2% of pre-tax earnings in 1995 compared
to 44.1% in 1994. The decrease in the effective income tax rate is primarily
due to an increase in pre-tax earnings relative to permanent differences.
Net earnings increased 55% to $31.5 million or $.96 per share in 1995
from $20.3 million or $.63 per share in 1994. After tax cash flow (net
earnings plus depreciation, amortization and deferred income taxes) increased
35% to $79.9 million from $59.1 million in 1994. After tax cash flow is an
important measurement of the Company's ability to repay debt through
operations and provides the Company with the ability to pursue investment
alternatives such as acquisitions and the repurchase of Company stock.
RESULTS OF OPERATIONS: 1994 COMPARED WITH 1993
Net Sales increased 26% in 1994 compared to 1993:
(in thousands)
1994 1993 Increase
____ ____ ________
Distribution $486,836 $379,899 $106,937
Manufacturing 32,513 30,872 1,641
_______ _______ ______
$519,349 $410,771 $108,578
======= ======= =======
In 1994, distribution sales increased approximately $93 million resulting
from the acquisition of 35 industrial gas distributors since April 1, 1992 and
approximately $14 million from same-store sales. Based on unaudited historical
pro forma data, the Company estimates that had all 1994 acquisitions been
consummated on April 1, 1993, distribution sales for 1994 would have been
approximately $75 million higher. The increase in same-store sales of
approximately 3% is primarily a result of increased volume in hardgoods sales
combined with a slight increase in gas sales. The Company estimates same-store
sales based on a comparison of current period sales to the prior period's
sales, adjusted for acquisitions. Hardgoods and gas volumes have primarily
increased as a result of the general improvement in the economy. The growth in
1994 reverses the negative same-store sales trend exhibited during the
previous three years.
Compared to 1993, distribution gross profit increases associated with
acquisitions total an estimated $49 million. Gross profits associated with
distribution same-store sales growth are estimated to total $8 million. The
same-store gross profit growth is attributable to increased hardgoods volumes,
the success in gas marketing programs and improved gas and rental gross
margins due to price increases to customers.
<PAGE> 18
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Sales for the Company's manufacturing operations increased approximately
5% as a result of an increase in the volume of nitrous oxide gases and export
sales of carbide and carbon products.
Operating income increased 42% in 1994 compared to 1993:
(in thousands)
1994 1993 Increase
____ ____ ________
Distribution $42,399 $28,443 $13,956
Manufacturing 6,268 5,924 344
______ ______ _____
$48,667 $34,367 $14,300
====== ====== ======
Distribution operating income as a percentage of net distribution sales
increased to 8.7% compared to 7.5% in 1993 as a result of the increase in
gross profits from higher same-store sales, a decrease in depreciation expense
related to a change in the depreciable life of cylinders and operating income
provided by acquisitions. Distribution operating income increased as a result
of the operating income from business acquisitions, an increase in same-store
sales, increased gross profit margins, a decrease in depreciation expense and
cost containment efforts with respect to operating costs. Depreciation expense
decreased as a result of a lengthening of the estimated service lives of
industrial gas cylinders from 20 to 30 years. The effect of the change in
cylinder lives was to decrease depreciation expense in 1994 by approximately
$3.1 million. The Company changed the estimated useful life of cylinders as a
result of thorough studies and analyses. The studies considered technological
advances in cylinders, empirical data obtained from cylinder manufactures and
other industry experts and experience gained from the Company's maintenance of
a cylinder population of approximately two million cylinders.
Interest expense, net, increased $1.1 million compared to 1993 primarily
as a result of the increase in average outstanding debt associated with the
acquisition of industrial gas distributors since April 1, 1992.
Income tax expense represented 44.1% of pre-tax earnings in 1994 compared
to 46.4% in 1993. The decrease in the effective income tax rate is primarily
due to an increase in pre-tax earnings relative to permanent differences
partially offset by the enactment of higher federal corporate income tax
rates.
Net earnings increased 63% to $20.3 million or $.63 per share in 1994
from $12.5 million or $.39 per share in 1993. As discussed above, the change
in the estimated service lives of industrial gas cylinders increased 1994
earnings by $1.9 million or $.06 per share. After tax cash flow (earnings from
continuing operations plus depreciation, amortization and deferred income
taxes) increased 29% to $59.1 million from $45.7 million in 1993. After-tax
cash flow, is an important measurement of the Company's ability to repay debt
through operations and provides the Company with the ability to pursue
investing alternatives such as acquisitions and the repurchase of Company
stock.
<PAGE> 19 AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
LIQUIDITY AND CAPITAL RESOURCES
_______________________________
The Company has financed its operations, capital expenditures and
acquisitions with borrowings, funds provided by operating activities and
through the issuance of common stock.
Cash flows from operating activities totaled $84.7 million in 1995.
Depreciation and amortization represent $36.9 million of cash flow from
operating activities. Deferred income taxes of $11.5 million principally
resulted from temporary differences and utilization of alternative minimum tax
credit carryforwards. Working capital components of cash flow decreased $2.4
million as a result of an increase in accounts receivable based on higher
sales, building inventory levels to meet increased hardgoods sales volumes
offset by an increase in trade accounts payable and accrued expenses and other
liabilities. Although accounts receivable and inventory levels have
increased, days-sales outstanding and days-supply of inventory levels have
improved since March 31, 1994.
Cash used by investing activities totaled $119.5 million in 1995 which
was primarily comprised of $36.7 million for capital expenditures and $86.3
million related to acquisitions.
The Company's use of cash for capital expenditures was partially
attributable to the continued assimilation of certain 1995 and 1994
acquisitions which required the Company to make capital expenditures in areas
such as combining cylinder fill plants, improving truck fleets, purchasing
cylinders in order to return cylinders rented from third parties and
completing computer conversions. Additionally, capital expenditure costs have
increased during 1995 as a result of the purchase of cylinders and bulk tanks,
necessary to facilitate gas sales growth. The Company estimates that its
maintenance capital expenditures are approximately 2% of net sales. The
Company considers the replacement of existing capital assets to be maintenance
capital expenditures. In 1996, subject to the effects of future acquisitions,
the Company expects the level of capital expenditures to approximate 1995
amounts.
During the third quarter of fiscal 1995, in contemplation of a
transaction with CBI Industries, Inc. ("CBI") the Company purchased 740,000
shares of CBI common stock. During the fourth quarter, the Company sold its
shares of CBI common stock for a gain of $560,000.
Financing activities provided cash of $34.8 million in 1995 with total
debt outstanding increasing by $56.1 million from March 31, 1994. Debt
incurred in connection with the acquisition of industrial gas distribution
businesses, including seller notes and assumed notes, totalled $107.5 million.
In January 1995, the Company's Board of Directors approved the repurchase
of up to one million shares of Airgas Common stock. Through May 22, 1995, the
Company has purchased 749,000 shares at an aggregate cost of $18.1 million.
The purchase of additional shares is dependent on prevailing market
conditions.
<PAGE> 20 AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
One of the Company's primary sources of borrowings is an unsecured
revolving credit facility with various commercial banks. At March 31, 1995,
the facility provided for borrowings up to $250 million, with sub-limits for
money market loans, bankers acceptances and the issuance of letters of credit.
On March 31, 1995, the Company had approximately $105 million in borrowings
under the facility and approximately $32 million committed under letters of
credit, resulting in availability under the facility of approximately $113
million. The facility provides for quarterly interest payments payable
currently with equal quarterly principal payments beginning in September 1996
and continuing through June 2001.
In November 1994, the Company entered into a new $100 million unsecured
revolving credit facility with various commercial banks to provide additional
availability for the Company's ongoing acquisition and investment programs.
The facility currently bears interest at the Libor rate plus an applicable
margin and matures on July 1, 1996. On March 31, 1995, the Company had
approximately $75 million in borrowings under the facility resulting in
availability under the facility of approximately $25 million. The Company
intends to terminate its $100 million facility in conjunction with an
anticipated increase in the Company's $250 million revolving credit facility
in August 1995, which will have terms and conditions similar to its existing
$250 million facility.
The Company also has unsecured line of credit agreements which provide
for borrowings aggregating $25 million. At March 31, 1995, $15 million was
outstanding under these agreements.
At March 31, 1995, the effective interest rate related to the $195
million of outstanding borrowings under the above credit lines was
approximately 6.6%.
The Company had $27.9 million outstanding at March 31, 1995 related to
senior subordinated notes which bear interest at a fixed rate of 11.375% and
require principal payments through August 1998.
The Company's loan agreements contain restrictive covenants which
include the maintenance of a minimum equity level, maintenance of certain
financial ratios and restrictions on additional borrowings and the level of
dividend payments.
In managing interest rate exposure, principally under the Company's
floating rate revolving credit facilities, the Company has entered into
thirteen interest rate swap agreements during the period from June 1992
through March 31, 1995. The swap agreements are with major financial
institutions and have a total notional principal amount of $138 million at
March 31, 1995. Approximately $119 million of the notional principal amount
of the swap agreements require fixed interest payments based on an average
effective rate of 7.3% for remaining periods ranging between 3 and 8 years.
Two swap agreements require floating rates ($19.5 million notional amount at
6.5% at March 31, 1995). The Company continually monitors its positions and
the credit ratings of its counterparties, and does not anticipate
nonperformance by the counterparties.
<PAGE> 21 AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The Company will continue to look for appropriate acquisitions and
expects to fund such acquisitions, future capital expenditure requirements and
commitments related to foreign investments through cash flow from operations
and with debt and other available sources. Subsequent to March 31, 1995, the
Company has acquired, entered into agreements, or signed letters of intent to
acquire industrial gas distribution businesses with an aggregate purchase
price of approximately $42 million.
The Company does not currently pay dividends.
OTHER
Environmental
The Company believes that it is in compliance in all material respects
with applicable environmental laws and regulations. The Company is in varying
stages of investigation or remediation of potential, alleged or acknowledged
contamination of current or former facilities. In conducting due diligence
for prospective acquisitions, the Company completes Phase I environmental
studies. Expenditures for environmental purposes during 1995 were not
material.
Concentration of Credit Risk
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of trade receivables.
Concentrations of credit risk are limited due to the Company's large number of
customers and their dispersion across many industries. Credit terms granted
to customers are generally net 30 days.
Effects of Inflation
In the past, the Company has been able to adjust its sales price of
products in response to market demand, cost of products, competitive factors
and other industry trends. Consequently, the impacts of inflation have not
had a materially adverse impact on the Company's financial position, results
of operations, or liquidity.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The consolidated financial statements and financial statement schedule of
the Company are set forth at pages F-1 to F-31 of the report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY.
The biographical information relating to the Company's directors
appearing in the Proxy Statement relating to the Company's 1995 Annual Meeting
of Stockholders is incorporated herein by reference. Biographical information
relating to the Company's executive officers is set forth in Item 1 of Part I
of this Report.
<PAGE> 22
ITEM 11. EXECUTIVE COMPENSATION.
The information under "Board of Directors and Committees" and "Certain
Transactions" appearing in the Proxy Statement relating to the Company's 1995
Annual Meeting of Stockholders is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The information required by this Item is set forth in the section headed
"Security Ownership" appearing in the Company's Proxy Statement relating to
the Company's 1995 Annual Meeting of Stockholders and such information is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information under "Certain Transactions" appearing in the Proxy
Statement relating to the Company's 1995 Annual Meeting of Stockholders is
incorporated herein by reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a)(1) and (2):
The response to this portion of Item 14 is submitted as a separate section of
this report beginning on page F-1. All other schedules have been omitted as
inapplicable, or not required, or because the required information is included
in the Consolidated Financial Statements or notes thereto.
(a)(3) Exhibits. The exhibits required to be filed as part of this annual
report on Form 10-K are listed in the attached Index to Exhibits.
(b) Reports on Form 8-K.
None.
(c) Index to Exhibits and Exhibits filed as a part of this report.
2.1 Acquisition of certain operations of The BOC Group, Inc. on February 8,
1994. (Incorporated by reference to the Company's Current Report, dated
February 17, 1994, filed on Form 8-K).
3.1 Certificate of Incorporation of the Company, as amended. (Incorporated
by reference to Exhibit 3.1 to the Company's June 30, 1987 Quarterly
Report on Form 10-Q).
3.2 By-Laws of the Company, as amended. (Incorporated by reference to Exhibit
3.2 to the Company's June 30, 1987 Quarterly Report on Form 10-Q).
3.3 Amendments to the Certificate of Incorporation of the Company dated
August 13, 1987, November 20, 1989 and August 3, 1994.
4.1 Sixth Amended and Restated Loan Agreement dated August 30, 1994 between
Airgas, Inc. and certain banks and NationsBank of North Carolina, N.A.
($250,000,000 credit facility).
<PAGE> 23
4.2 Amendment No. 1 to the Sixth Amended and Restated Loan Agreement dated as
of November 8, 1994 between Airgas, Inc. and certain banks and
NationsBank of North Carolina, N.A.
4.3 Loan Agreement dated November 8, 1994 between Airgas, Inc. and certain
banks and Nationsbank of North Carolina, N.A. ($100,000,000 credit
facility).
There are no other instruments with respect to long-term debt of the
Company that involve indebtedness or securities authorized thereunder
exceeding 10 percent of the total assets of the Company and its
subsidiaries on a consolidated basis. The Company agrees to file a copy
of any instrument or agreement defining the rights of holders of long-
term debt of the Company upon request of the Securities and Exchange
Commission.
* 10.1 Agreement between the Company and Peter McCausland, dated January 8,
1991, and form of Common Stock Purchase Warrant. (Incorporated by
reference to Exhibit 10.16 to the Company's March 31, 1992 report on
Form 10-K).
* 10.2 Common Stock Purchase Warrant held by Britton H. Murdoch and certain
other employees and other persons (Pursuant to Instruction 2 to Item
601 of Regulation S-K, the Common Stock Purchase Warrants, which are
substantially identical in all material respects except as to the
parties thereto, held by certain employees, including the following
Executive Officers and a Director, and other persons are not being
filed: Hermann Knieling, Kenneth A. Keeley, Alfred B. Crichton, Gordon
L. Keen, Jr., William Sanford, Scott Melman and Ronald Beebe and a
Director, Merril Stott). (Incorporated by reference to Exhibit 10.17
to the Company's March 31, 1993 report on Form 10-K).
* 10.3 Amended and Restated 1984 Stock Option Plan. (Incorporated by
reference to Exhibit "A" to Exhibit 10.6 to the Company's March 31,
1992 report on Form 10-K).
* 10.4 Amendment to the Amended and Restated 1984 Stock Option Plan.
(Incorporated by reference to exhibit 10.18 to the Company's March 31,
1993 report on Form 10-K).
* 10.5 1989 Non-Qualified Stock Option Plan for Directors (Non-Employees), as
amended. (Incorporated by reference to Exhibit 10.7 to the Company's
March 31, 1992 report on Form 10-K).
* 10.6 1994 Employee Stock Purchase Plan. (Incorporated by reference to
exhibit 10.19 to the Company's March 31, 1993 report on Form 10-K).
10.7 Amended and Restated Joint Venture Agreement dated March 31, 1992
between American Carbide and Carbon Corporation and Elkem Metals
Company. (Incorporated by reference to Exhibit 10.5 to the Company's
March 31, 1992 report on Form 10-K).
* 10.8 Exchange Rights Agreement dated October 1, 1989 between the Company
and John Smith (Pursuant to Instruction 2 to Item 601 of Regulation
S-K, the Exchange Rights Agreements, which are substantially identical
in all material respects except as to the parties thereto, between the
Company and the following individuals are not being filed: Alfred B.
Crichton, Rudi Endres, Ronald W. Savage, Mark A. Straka, William E.
<PAGE> 24
Sanford, E. Pat Baker, Kenneth A. Keeley, Kenneth D. Morrison, Richard
W. Johnson, Thomas J. Bennett, Hermann Knieling and John Musselman).
(Incorporated by reference to Exhibit 10.13 to the Company's March 31,
1992 report on Form 10-K).
* 10.9 First Amendment to Exchange Rights Agreement dated April 30, 1992
between the Company and John Smith (Pursuant to Instruction 2 to Item
601 of Regulation S-K, the First Amendments, which are substantially
identical in all material respects except as to the parties thereto,
between the Company and the following individuals are not being filed:
Alfred B. Crichton, Rudi Endres, Ronald W. Savage, Mark A. Straka,
William E. Sanford, E. Pat Baker, Kenneth A. Keeley, Kenneth D.
Morrison, Richard W. Johnson, Thomas J. Bennett, Hermann Knieling and
John Musselman). (Incorporated by reference to Exhibit 10.14 to the
Company's March 31, 1992 report on Form 10-K).
* 10.10 Amended and Restated Exchange Rights Agreement between the Company and
Ronald E. Arnold (Pursuant to Instruction 2 to Item 601 of Regulation
S-K, the Amended and Restated Exchange Rights Agreements, which are
substantially identical in all material respects except as to the
parties thereto, between the Company and the following individuals are
not being filed: John T. Winn, Dennis B. Lee, Howard E. Wolfe, Charles
Graves, I.C. Fortenberry, Henry B. Coker, Ronald B. Rush, William V.
Accuosti, Dan L. Tatro, Theodore D. Erkenbrack, Geoffrey C. Pulford,
Dale E. Hess, Jeff Allen and Barry W. Himes). (Incorporated by
reference to Exhibit 10.15 to the Company's March 31, 1993 report on
Form 10-K).
* 10.11 First Amendment to Amended and Restated Exchange Rights Agreement
between the Company and John T. Winn (Pursuant to Instruction 2 to
Item 601 of Regulation S-K, the First Amendment to the Amended and
Restated Exchange Rights Agreements, which are substantially identical
in all material respects except as to the parties thereto, between the
Company and the following individuals are not being filed: I.C.
Fortenberry, Hermann Knieling, William E. Sanford, Rudi Endres and
Kenneth D. Morrison). (Incorporated by reference to Exhibit 10.11 to
the Company's March 31, 1994 report on Form 10-K).
* 10.12 Second Amendment to Amended and Restated Exchange Rights Agreement
between the Company and Mark Straka (Pursuant to Instruction 2 to Item
601 of Regulation S-K, the Second Amendment to the Amended and
Restated Exchange Rights Agreement, which are substantially identical
in all material respects except as to the parties thereto, between the
Company and the following individuals are not being filed: Rudi
Endres, Alfred B. Crichton and E. Pat Baker). (Incorporated by
reference to Exhibit 10.12 to the Company's March 31, 1994 report on
Form 10-K).
* 10.13 Amendment dated as of April 13, 1994 to the Amended and Restated 1984
Stock Option Plan. (Incorporated by reference to Exhibit 10.13 to the
Company's March 31, 1994 report on Form 10-K).
<PAGE> 25
(11) Statement re: computation of earnings per share.
(21) Subsidiaries of the Company.
(23.1) Consent of KPMG Peat Marwick LLP.
(23.2) Consent of KPMG Peat Marwick LLP (to be filed by amendment)
(23.3) Consent of KPMG Peat Marwick LLP (to be filed by amendment)
(99.1) Form 11-K for the Registrant's 401(K) Plan (to be filed by amendment)
(99.2) Form 11-K for the Registrant's Employee Stock Purchase Plan (to be
filed by amendment)
_____________
* A management contract or compensatory plan required to be filed by Item
14(c) of this Report.
<PAGE> 26
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
Dated: June 9, 1995
Airgas, Inc.
By: /s/ Peter McCausland
_________________________
Peter McCausland
Chairman of the Board,
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
_________ _____ ____
/s/ Peter McCausland Director, Chairman of the June 9, 1995
____________________________ Board, President and
(Peter McCausland) Chief Executive Officer
/s/ Britton H. Murdoch Vice President/Finance and June 9, 1995
____________________________ Chief Financial Officer
(Britton H. Murdoch)
/s/ Jeffrey P. Cornwell Corporate Controller
____________________________ June 9, 1995
(Jeffrey P. Cornwell)
/s/ W. Thacher Brown Director June 9, 1995
____________________________
(W. Thacher Brown)
Director
____________________________
(Frank B. Foster, III)
Director
____________________________
(Dr. Robert E. Naylor)
Director
____________________________
(James M. Hoak, Jr.)
<PAGE> 27
/s/ Robert L. Yohe Director June 9, 1995
____________________________
(Robert L. Yohe)
/s/ John A.H. Shober Director June 9, 1995
____________________________
(John A.H. Shober)
/s/ Merril L. Stott Director June 9, 1995
____________________________
(Merril L. Stott)
/s/ Erroll C. Sult Director June 9, 1995
____________________________
(Erroll Sult)
<PAGE> 28
AIRGAS, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULES
Page
Reference In
Report on
Form 10-K
_________
Independent Auditors' Report . . . . . . . . . . . . . . . . . . F-2
Statement of Management's Financial Responsibility . . . . . . . F-3
Consolidated Balance Sheets at March 31, 1995 and 1994 . . . . . F-4
Consolidated Statements of Earnings for the Years Ended
March 31, 1995, 1994 and 1993. . . . . . . . . . . . . . . . . F-5
Consolidated Statements of Stockholders' Equity for the
Years Ended March 31, 1995, 1994 and 1993. . . . . . . . . . . F-6
Consolidated Statements of Cash Flows for the Years Ended
March 31, 1995, 1994 and 1993. . . . . . . . . .. . . . . . . . F-7
Notes to Consolidated Financial Statements. . . . . . . . . . . . F-8
Financial Statement Schedule:
Schedule II - Valuation and Qualifying Accounts . . . . . . F-31
All other schedules for which provision is made in the applicable accounting
regulations promulgated by the Securities and Exchange Commission are not
required under the related instructions or are inapplicable and therefore have
been omitted.
F-1
<PAGE> 29
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Airgas, Inc.:
We have audited the consolidated financial statements of Airgas, Inc. and
subsidiaries as listed in the accompanying index. In connection with our
audits of the consolidated financial statements, we also have audited the
financial statement schedule as listed in the accompanying index. These
consolidated financial statements and financial statement schedule are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these consolidated financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Airgas,
Inc. and subsidiaries as of March 31, 1995 and 1994, and the results of their
operations and their cash flows for each of the years in the three-year period
ended March 31, 1995, in conformity with generally accepted accounting
principles. Also in our opinion, the related financial statement schedule,
when considered in relation to the basic consolidated financial statements
taken as a whole, present fairly, in all material respects, the information
set forth thereon.
As discussed in notes 1 and 13 to the consolidated financial statements,
the Company retroactively adopted in 1994 the provisions of the Financial
Accounting Standards Board's Statement of Financial Accounting Standard
No. 109, "Accounting for Income Taxes."
Philadelphia, Pennsylvania KPMG PEAT MARWICK LLP
May 10, 1995
F-2
<PAGE> 30
STATEMENT OF MANAGEMENT'S FINANCIAL RESPONSIBILITY
Management has prepared and is responsible for the integrity and
objectivity of the consolidated financial statements and related financial
information in this Annual Report. The statements are prepared in conformity
with generally accepted accounting principles. The financial statements
reflect management's informed judgment and estimation as to the effect of
events and transactions that are accounted for or disclosed.
Management maintains a system of internal control at each business unit.
This system, which undergoes periodic evaluation, is designed to provide
reasonable assurance that assets are safeguarded and records are adequate for
the preparation of reliable financial data. In determining the extent of the
system of internal control, management recognizes that the cost should not
exceed the benefits derived. The evaluation of these factors requires
estimates and judgment by management.
The Company's financial statements have been audited by KPMG Peat Marwick
LLP, independent auditors. Their Independent Auditors' Report, which is based
on an audit made in accordance with generally accepted auditing standards is
presented on the previous page. In performing their audit, KPMG Peat Marwick
LLP considers the Company's internal control structure to the extent they deem
necessary in order to plan their audit, determine the nature, timing and
extent of tests to be performed and issue their report on the consolidated
financial statements.
The Audit Committee of the Board of Directors meets with the independent
auditors and management to satisfy itself that they are properly discharging
their responsibilities. The auditors have direct access to the Audit
Committee.
Airgas, Inc.
/s/ Britton H. Murdoch /s/ Peter McCausland
________________________ _______________________
Britton H. Murdoch Peter McCausland
Vice President and Chairman, President and
Chief Financial Officer Chief Executive Officer
F-3
<PAGE> 31
AIRGAS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS March 31,
________________
(In thousands, except per share amounts) 1995 1994
________________________________________ ____ ____
ASSETS (NOTE 8)
Current Assets
Trade receivables, less allowances for doubtful
accounts of $4,161 in 1995 and $4,207 in 1994 . . . . . .$ 93,423 $ 79,034
Inventories (Note 4) . . . . . . . . . . . . . . . . . . . 65,947 51,721
Prepaid expenses and other current assets. . . . . . . . . 10,467 8,367
_______ _______
Total current assets. . . . . . . . . . . . . . . . . 169,837 139,122
_______ _______
Plant and Equipment, at cost (Note 5). . . . . . . . . . . 464,983 390,832
Less accumulated depreciation. . . . . . . . . . . . . . (118,715) (96,201)
_______ _______
Plant and equipment, net . . . . . . . . . . . . . . . . 346,268 294,631
_______ _______
Other Non-current Assets (Note 6) . . . . . . . . . . . . . 41,388 30,421
Goodwill, net of accumulated amortization
of $15,094 in 1995 and $11,875 in 1994. . . . . . . . . . 88,144 50,723
_______ _______
$645,637 $514,897
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt (Note 8) . . . . . . . .$ 11,780 $ 10,304
Accounts payable, trade. . . . . . . . . . . . . . . . . . 43,782 34,644
Accrued expenses and other current liabilities (Note 7). . 60,191 47,103
_______ ______
Total current liabilities . . . . . . . . . . . . . . 115,753 92,051
_______ _______
Long-Term Debt (Note 8). . . . . . . . . . . . . . . . . . 259,970 205,311
Deferred Income Taxes (Note 13). . . . . . . . . . . . . . 67,540 53,096
Other Non-current Liabilities. . . . . . . . . . . . . . . 11,116 6,635
Minority Interest in Subsidiaries (Note 19). . . . . . . . 1,606 937
Commitments and Contingencies (Note 17)
Stockholders' Equity (Note 9)
Common Stock, par value $.01 per share, 200,000 shares
authorized, 31,501 and 32,897 shares issued in
1995 and 1994, respectively . . . . . . . . . . . . . . . 315 329
Capital in Excess of Par Value . . . . . . . . . . . . . . 62,135 56,330
Retained Earnings. . . . . . . . . . . . . . . . . . . . . 133,640 102,161
Cumulative Translation Adjustments . . . . . . . . . . . . (469) (471)
Treasury Stock, 236 and 1,877 common shares at cost
in 1995 and 1994, respectively. . . . . . . . . . . . . . (5,969) (1,482)
_______ _______
Total stockholders' equity. . . . . . . . . . . . . . 189,652 156,867
_______ _______
$645,637 $514,897
======= =======
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 32
AIRGAS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
Years Ended March 31,
(In thousands, except per share amounts) ______________________________
_______________________________________ 1995 1994 1993
____ ____ ____
Net Sales
Distribution . . . . . . . . . . . . . . . . $654,381 $486,836 $379,899
Manufacturing . . . . . . . . . . . . . . . 33,602 32,513 30,872
_______ _______ _______
Total net sales . . . . . . . . . . . . 687,983 519,349 410,771
Costs and Expenses
Cost of products sold (excluding depreciation
and amortization)
Distribution . . . . . . . . . . . . . . . 320,800 238,429 188,717
Manufacturing. . . . . . . . . . . . . . . 22,076 20,741 19,396
Selling, distribution and administrative
expenses . . . . . . . . . . . . . . . . . 235,639 180,941 140,246
Depreciation and amortization. . . . . . . . 36,868 30,571 28,045
_______ _______ _______
Total costs and expenses. . . . . . . . 615,383 470,682 376,404
_______ _______ _______
Operating Income
Distribution . . . . . . . . . . . . . . . . 66,521 42,399 28,443
Manufacturing. . . . . . . . . . . . . . . . 6,079 6,268 5,924
_______ _______ _______
Total operating income . . . . . . . . . 72,600 48,667 34,367
Interest expense, net (Note 11). . . . . . . (17,625) (12,486) (11,403)
Other income, net (Note 12). . . . . . . . . 1,067 453 546
Minority interest (Note 19). . . . . . . . . (669) (317) (230)
_______ _______ _______
Earnings before income taxes. . . . . . 55,373 36,317 23,280
Income taxes (Note 13) . . . . . . . . . . . . 23,894 16,027 10,811
_______ _______ _______
Net earnings. . . . . . . . . . . . . $ 31,479 $ 20,290 $ 12,469
======= ======= =======
Earnings Per Share (Notes 3 and 9)
Primary. . . . . . . . . . . . . . . . . . $ .96 $ .63 $ .40
_______ _______ _______
Fully diluted. . . . . . . . . . . . . . . $ .96 $ .63 $ .39
_______ _______ _______
Weighted average shares
Primary. . . . . . . . . . . . . . . . . . 32,762 32,390 30,886
Fully diluted. . . . . . . . . . . . . . . 32,762 32,390 32,016
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 33
AIRGAS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF
STOCKHOLDERS' EQUITY
Years Ended March 31, 1995, 1994 and 1993
_________________________________________
Shares of Capital in
Common Stock Common Excess of
(In thousands) $.01 Par Value Stock Par Value
______________ ______________ _____ __________
Balance--April 1, 1992. . . . . . . . . 26,811.6 $268 $36,798
Net earnings . . . . . . . . . . . . . .
Foreign currency translation
adjustment. . . . . . . . . . . . . . .
Stock warrants and options exercised . . 836.6 8 3,403
Tax benefit associated with exercise
of stock options and warrants . . . . . 1,587
Shares issued upon acquisition of
minority interests (Note 19). . . . . . 702.0 8 5,214
Shares issued in connection with
Chairman's exercise of warrants
(Note 9). . . . . . . . . . . . . . . . 3,649.4 36 (36)
________ ___ ______
Balance--March 31, 1993. . . . . . . . . 31,999.6 320 46,966
Net earnings . . . . . . . . . . . . . .
Foreign currency translation
adjustment. . . . . . . . . . . . . . .
Stock warrants and options exercised . . 784.4 8 3,485
Tax benefit associated with exercise
of stock options and warrants . . . . . 3,590
Shares issued upon acquisition of
minority interests (Note 19). . . . . . 83.4 1 1,739
Shares issued in connection with
Employee Stock Purchase Plan (Note 14). 29.7 550
________ ___ ______
Balance--March 31, 1994. . . . . . . . . 32,897.1 329 56,330
Net earnings . . . . . . . . . . . . . .
Foreign currency translation
adjustment. . . . . . . . . . . . . . .
Retirement of treasury stock . . . . . . (1,877.2) (19) (1,463)
Purchase of treasury stock (Note 9). . .
Issuance of stock in connection
with acquisitions . . . . . . . . . . . 61.6 1 1,437
Stock warrants and options exercised . . 269.4 3 1,267
Tax benefit associated with exercise
of stock options and warrants . . . . . 1,858
Shares issued in connection with
Employee Stock Purchase Plan (Note 14). 150.1 1 2,706
________ ___ ______
Balance--March 31, 1995. . . . . . . . . 31,501.0 $315 $62,135
======== === ======
COLUMNS CONTINUED ON NEXT PAGE
F-6
<PAGE> 34 AIRGAS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF
STOCKHOLDERS' EQUITY - (Continued)
Years Ended March 31, 1995, 1994 and 1993
_________________________________________
Cumulative
Retained Translation Treasury
(In thousands) Earnings Adjustments Stock
______________ _________ ___________ ________
Balance--April 1, 1992 . . . . . . . . . $69,402 $(55) $(1,482)
Net earnings. . . . . . . . . . . . . . . 12,469
Foreign currency translation
adjustment . . . . . . . . . . . . . . . (49)
Stock warrants and options exercised. . .
Tax benefit associated with exercise
of stock options and warrants. . . . . .
Shares issued upon acquisition of
minority interests (Note 19) . . . . . .
Shares issued in connection with
Chairman's exercise of warrants
(Note 9) . . . . . . . . . . . . . . . .
______ ___ _____
Balance--March 31, 1993 . . . . . . . . . 81,871 (104) (1,482)
Net earnings. . . . . . . . . . . . . . . 20,290
Foreign currency translation
adjustment . . . . . . . . . . . . . . . (367)
Stock warrants and options exercised. . .
Tax benefit associated with exercise
of stock options and warrants. . . . . .
Shares issued upon acquisition of
minority interests (Note 19) . . . . . .
Shares issued in connection with
Employee Stock Purchase Plan (Note 14) .
_______ ____ _____
Balance--March 31, 1994 . . . . . . . . . 102,161 (471) (1,482)
Net earnings. . . . . . . . . . . . . . . 31,479
Foreign currency translation
adjustment . . . . . . . . . . . . . . . 2
Retirement of treasury stock. . . . . . . 1,482
Purchase of treasury stock (Note 9) . . . (5,969)
Issuance of stock in connection
with acquisitions. . . . . . . . . . . .
Stock warrants and options exercised. . .
Tax benefit associated with exercise
of stock options and warrants. . . . . .
Shares issued in connection with
Employee Stock Purchase Plan (Note 14) .
_______ ____ ______
Balance--March 31, 1995 . . . . . . . . .$133,640 $(469) $(5,969)
======= ===== =======
See accompanying notes to consolidated financial statements.
F-6, Continued
<PAGE> 35 AIRGAS INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands) Years Ended March 31,
1995 1994 1993
____ ____ ____
Cash Flows From Operating Activities
Net earnings . . . . . . . . . . . . . . . . . . $31,479 $20,290 $12,469
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation and amortization . . . . . . . . 36,868 30,571 28,045
Deferred income taxes . . . . . . . . . . . . 11,548 8,189 5,158
Equity in earnings of joint venture . . . . . (840) (1,258) (897)
Gain on sale of investment. . . . . . . . . . (560) -- --
(Gain)/Loss on sale of plant and equipment. . 110 (63) (292)
Minority interest in earnings . . . . . . . . 669 317 230
Stock issued for employee benefit plan expense 2,707 550 --
Changes in assets and liabilities, excluding
effects of business acquisitions:
Trade receivables, net. . . . . . . . . . . (1,179) (5,444) 1,552
Inventories . . . . . . . . . . . . . . . . (1,874) 1,626 3,909
Prepaid expenses and other current assets . 198 (546) 969
Accounts payable, trade. . . . . . . . . . 2,934 3,799 (845)
Accrued expenses and other current
liabilities. . . . . . . . . . . . . . . . 2,324 5,572 1,507
Other assets and liabilities, net . . . . . 298 (714) 1,928
_______ ______ ______
Net cash provided by operating activities. 84,682 62,889 53,733
_______ ______ ______
Cash Flows From Investing Activities
Capital expenditures . . . . . . . . . . . . . . (36,712) (21,318) (14,702)
Proceeds from sale of plant and equipment. . . . 2,563 1,914 2,259
Business acquisitions, net of cash acquired. . . (86,342) (93,375) (43,072)
Purchase of investment . . . . . . . . . . . . . (17,026) -- --
Proceeds from sale of investment . . . . . . . . 17,892 -- --
Other, net . . . . . . . . . . . . . . . . . . . 116 (287) (502)
_______ ______ ______
Net cash used by investing activities. . . .(119,509) (113,066) (56,017)
_______ _______ ______
Cash Flows From Financing Activities
Proceeds from borrowings . . . . . . . . . . . . 394,193 195,292 90,939
Repayment of debt. . . . . . . . . . . . . . . .(359,253) (150,844) (95,207)
Repurchase of treasury stock . . . . . . . . . . (5,969) -- --
Exercise of options and warrants . . . . . . . . 1,270 3,493 3,411
Net overdraft. . . . . . . . . . . . . . . . . . 4,591 2,459 3,944
_______ ______ ______
Net cash provided by financing activities. . 34,832 50,400 3,087
_______ ______ ______
Effects of discontinued activities, net. . . . . (5) (223) (803)
_______ ______ ______
Cash Increase (Decrease) . . . . . . . . . . . . -- -- --
Cash--beginning of year. . . . . . . . . . . . . -- -- --
______ ______ ______
Cash--End of Year. . . . . . . . . . . . . . . . $ -- $ -- $ --
====== ====== ======
For supplemental cash flow disclosures see Note 18.
See accompanying notes to consolidated financial statements.
F-7
<PAGE> 36
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Basis of Presentation
The consolidated financial statements include the accounts of Airgas,
Inc. and its subsidiaries (the "Company"). All significant intercompany
balances and transactions have been eliminated in consolidation.
(b) Inventories
Inventories are stated at the lower of cost or market with cost for
approximately 77% and 79% percent of the inventories at March 31, 1995 and
1994, respectively, determined by the first-in, first-out (FIFO) method. Cost
for the remainder of inventories was determined using the last-in, first-out
(LIFO) method.
(c) Plant and Equipment
Plant and equipment are stated at cost. Depreciation is provided on the
straight-line basis over the estimated useful lives of the related assets.
Effective April 1, 1993, the Company changed its estimate of the useful
lives of its acetylene and high pressure cylinders from 20 to 30 years. This
change was made to better reflect the estimated periods during which these
assets will remain in service. The change had the effect of reducing
depreciation expense in 1994 by approximately $3.1 million and increasing net
earnings by $1.9 million or $.06 per share.
The Company changed the estimated useful life of cylinders as a result of
thorough studies and analyses. The studies considered technological advances
in cylinders, empirical data obtained from cylinder manufacturers and other
industry experts and experience gained from the Company's maintenance of a
cylinder population of approximately two million cylinders.
(d) Other Assets
Costs related to the acquisition of long-term debt are deferred and
amortized over the term of the related debt. Costs and payments pursuant to
noncompetition arrangements entered into in connection with business
acquisitions are amortized over the terms of the arrangements which are
principally over 5 years. On an ongoing basis, management reviews the
valuation and amortization of intangible assets.
(e) Goodwill
Goodwill represents costs in excess of net assets of businesses acquired
and is amortized on a straight-line basis over the expected periods to be
benefited, which currently ranges from 20 to 40 years. The Company assesses
the recoverability of this intangible asset by determining whether the
amortization of the goodwill balance over its remaining life can be recovered
through projected undiscounted future cash flows.
F-8
<PAGE> 37
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - (Continued)
(f) Joint Venture
The Company is a partner in a joint venture which is accounted for using
the equity method.
(g) Income Taxes
In fiscal 1994, the Company retroactively adopted Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes," (Statement No.
109), as of April 1, 1992. Statement No. 109 requires the use of the
liability method of accounting for deferred income taxes. The adoption of
Statement No. 109 had no material impact on the Company's results of
operations or retained earnings. The provision for income taxes includes
federal, foreign, state and local income taxes currently payable and those
deferred because of temporary differences between the financial statement and
tax bases of assets and liabilities.
(h) Foreign Currency Translation
The functional currency of the Company's foreign operations is the
applicable local currency. The translation of foreign currencies into U.S.
dollars is performed for balance sheet accounts using current exchange rates
in effect at the balance sheet date and for revenue and expense accounts using
average exchange rates during each reporting period. The gains or losses, net
of applicable deferred income taxes, resulting from such translations are
included in stockholders' equity. Gains and losses arising from foreign
currency transactions are reflected in the consolidated statements of earnings
as incurred.
(i) Concentrations of Credit Risk
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of trade receivables.
Concentrations of credit risk are limited due to the Company's large number of
customers and their dispersion across many industries. Credit terms granted to
customers are generally net 30 days.
(j) Revenue Recognition
Sales are recorded upon shipment to the customer.
F-9
<PAGE> 38 AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(k) Financial Instruments
In hedging interest rate exposure, the Company enters into interest rate
swap agreements. These instruments are not entered into for trading purposes
and the Company has the ability and intent to hold these instruments to
maturity. The Company only uses non-leveraged instruments. When interest
rates change, the difference to be paid or received is accrued and recognized
as interest expense over the life of the agreement. The fair values of the
Company's financial instruments are estimated based on quoted market prices
for the same or similar issues.
The carrying amounts for accounts receivable, accounts payable and
current portion of long-term debt approximate fair value because of the
short-term maturity of these financial instruments.
(l) Reclassification
Certain reclassifications have been made in previously issued financial
statements to conform to the current presentation.
(2) ACQUISITIONS
The Company acquires businesses primarily engaged in the distribution of
industrial, medical and specialty gases and related welding supplies and
accessories. Acquisitions have been recorded using the purchase method of
accounting, and, accordingly, results of their operations have been included
in the Company's consolidated financial statements since the effective dates
of the respective acquisitions.
1995--During 1995, the Company purchased twenty-five businesses. The
largest of these acquisitions and their effective dates included The Jimmie
Jones Company (August 1, 1994) and Post Welding Supply (November 1, 1994).
The aggregate purchase price for these acquisitions amounted to approximately
$83 million. The purchase price for the remaining twenty-three businesses
amounted to approximately $41 million.
On November 1, 1994, the Company entered into an agreement with Poligaz,
S.A., (Poligaz), for the purchase of an interest in Poligaz for approximately
$3.3 million. The Company's investment in Poligaz is accounted for at cost,
and is included as other non-current assets.
1994--During 1994, the Company purchased eighteen businesses. The
largest of these acquisitions and their effective dates included General
Welding Supply Co. (July 1, 1993), PDI Western Distributing Group, Inc. (July
1, 1993), Phoenix Northeast Distributors Group, Inc. (September 1, 1993) and
certain operations of The BOC Group, Inc. (February 1, 1994). The aggregate
purchase price for these acquisitions amounted to approximately $90 million.
The purchase price for the remaining fourteen businesses amounted to
approximately $31 million.
1993--During 1993, the Company purchased seventeen businesses. The
largest of these acquisitions and their effective dates included Virginia
Welding Supply, Inc. (July 27, 1992), Cryodyne Corp. (January 1, 1993) and
Presto Technologies, Inc. (January 29, 1993). The aggregate purchase price for
these acquisitions amounted to approximately $45 million. The purchase price
for the remaining fourteen businesses amounted to approximately $16 million.
F-10
<PAGE> 39
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(2) ACQUISITIONS - (Continued)
In connection with the above business acquisitions, the total purchase
price, fair value of assets acquired, cash paid and liabilities assumed were
as follows:
Years Ended March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
Cash paid . . . . . . . . . . . . . . . . . . $ 83,033 $ 89,782 $ 42,228
Notes issued to sellers . . . . . . . . . . . 14,518 6,208 6,381
Notes payable assumed and capital leases. . . 9,067 4,196 5,884
Other liabilities assumed and accrued
acquisition costs. . . . . . . . . . . . . . 20,198 20,486 6,407
_______ _______ ______
Total purchase price allocated to assets
acquired. . . . . . . . . . . . . . . . . . $126,816 $120,672 $ 60,900
======= ======= ======
Also, as discussed in note 19, the Company has accounted for the
acquisition of certain subsidiary minority interests in 1994 and 1993 using
the purchase method of accounting.
In connection with certain acquisitions, the Company is required to make
future payments to sellers based on future earnings of the acquired business
in excess of predetermined amounts. Such payments, if any, are capitalized as
an additional cost of the acquisition. Amounts payable under contingent
payment terms continue through 1997 and are limited to $3.4 million. To-date,
the Company has made aggregate payments of $660 thousand under these
contingent terms.
The purchase price for business acquisitions and minority interests were
allocated to the assets acquired and liabilities assumed based on their
estimated fair values. Costs in excess of net assets acquired (goodwill) for
1995, 1994 and 1993 amounted to $40.8 million, $9.9 million and $7.7 million,
respectively.
The following presents unaudited estimated pro forma operating results as
if the 1995 and 1994 acquisitions had been consummated on April 1, 1993. These
pro forma results have been prepared for comparative purposes only and do not
purport to be indicative of what would have occurred had the acquisitions been
made as of April 1, 1993 or of results which may occur in the future.
Years Ended March 31,
_____________________
(In thousands except per share amounts) 1995 1994
_______________________________________ ____ ____
Net sales . . . . . . . . . . . . . . . . . . . $737,104 $697,507
Net earnings. . . . . . . . . . . . . . . . . . 31,786 22,212
Earnings per share:
Primary. . . . . . . . . . . . . . . . . . . . .97 .69
Fully diluted. . . . . . . . . . . . . . . . . .97 .69
F-11
<PAGE> 40
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(2) ACQUISITIONS - (Continued)
Subsequent to March 31, 1995, the Company has acquired, entered into
agreements, or signed letters of intent to acquire industrial gas distribution
businesses with an aggregate purchase price of approximately $42 million.
(3) EARNINGS PER SHARE
Primary and fully diluted earnings per share amounts were determined
using the Treasury Stock method.
(4) INVENTORIES
Inventories consist of: March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Finished goods. . . . . . . . . . . . . . . . . . . $65,693 $51,263
Raw materials . . . . . . . . . . . . . . . . . . . 1,315 1,117
______ ______
67,008 52,380
Less reduction to LIFO cost . . . . . . . . . . . . (1,061) (659)
______ ______
$65,947 $51,721
====== ======
(5) PLANT AND EQUIPMENT
The major classes of plant and equipment, at cost, are as follows:
March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Land and land improvements . . . . . . . . . . . . $ 17,571 $ 15,879
Buildings and leasehold improvements . . . . . . . 43,714 30,494
Machinery and equipment, including cylinders . . . 376,284 322,336
Transportation equipment . . . . . . . . . . . . . 25,944 20,830
Construction in progress . . . . . . . . . . . . . 1,470 1,293
_______ _______
$464,983 $390,832
======= =======
Depreciation and amortization of plant and equipment charged to operations
amounted to $26.3 million, $21.1 million and $19.7 million in 1995, 1994 and
1993, respectively.
F-12
<PAGE> 41
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(6) OTHER NONCURRENT ASSETS
Other noncurrent assets include:
March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Investment in a joint venture (Note 10). . . . . . $ 1,597 $ 1,308
Noncompete agreements and other intangible
assets, at cost, net of accumulated
amortization of $37.4 million in 1995
and $30.0 million in 1994 . . . . . . . . . . . . 31,955 26,673
Other assets. . . . . . . . . . . . . . . . . . . . 7,836 2,440
______ ______
$41,388 $30,421
====== ======
(7) ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
Accrued expenses and other current liabilities include:
March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Cash overdraft. . . . . . . . . . . . . . . . . . . $11,638 $ 7,047
Insurance payable and related reserves. . . . . . . 6,304 5,341
Customer cylinder deposits. . . . . . . . . . . . . 6,242 3,325
Other accrued expenses and current liabilities. . . 36,007 31,390
______ ______
$60,191 $47,103
====== ======
The cash overdraft is attributable to the float of the Company's outstanding
checks.
(8) INDEBTEDNESS
(a) Long-term debt consists of the following:
March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Revolving credit borrowings . . . . . . . . . . . . $195,000 $151,235
Senior subordinated notes . . . . . . . . . . . . . 27,857 35,714
Acquisition notes . . . . . . . . . . . . . . . . . 26,532 16,014
Industrial Development Board revenue bonds. . . . . 3,450 4,645
All other notes, at various rates and maturities. . 18,911 8,007
_______ _______
Total long-term debt. . . . . . . . . . . . . . . . 271,750 215,615
Less current installments . . . . . . . . . . . . . (11,780) (10,304)
_______ _______
Long-term debt, excluding current installments. . . $259,970 $205,311
======= =======
F-13
<PAGE> 42
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(8) INDEBTEDNESS - (Continued)
During 1995, the Company increased its unsecured revolving credit
facility with various commercial banks from $200 million to $250 million and
extended the maturity of the facility to August 2001. The revolving credit
facility provides for the issuance of letters of credit up to $50 million.
Under the terms of the revolving credit facility, interest is payable
quarterly with equal quarterly principal payments beginning in September 1996
and continuing through June 2001. At March 31, 1995, $105 million of
borrowings were outstanding under the revolving credit facility at money
market rates of 6.5%. At the Company's option, borrowings under the revolving
credit facility may bear interest at a rate per year equal to prime, the Libor
rate, the Certificate of Deposit rate, or the Banker's Acceptance rate, in
each case plus an applicable margin (for which no borrowings were outstanding
at March 31, 1995).
Also, during 1995, the Company entered into an additional $100 million
unsecured line of credit with two commercial banks which matures in July 1996
and provides for borrowings at the Libor rate plus an applicable margin ($75
million outstanding at 6.7% as of March 31, 1995). The Company intends to
terminate its $100 million facility in conjunction with an anticipated
increase in the Company's $250 million revolving credit facility in August
1995, which will have terms and conditions similar to its existing $250
million facility.
The Company also had a $25 million line of credit agreement with a
commercial bank that provides for unsecured money market rate borrowings with
no fixed date of maturity ($15 million outstanding at 6.36% as of March 31,
1995).
Senior subordinated notes with an original face value aggregating $55
million require semi-annual interest payments at 11.375%. Equal annual
principal payments of $4.3 million for $17.1 million of the senior
subordinated notes continue through August 1998 and equal annual principal
payments of $3.6 million for $10.7 million of the senior subordinated notes
continue through July 1997.
Acquisition notes represent notes issued to sellers of businesses
acquired and are repayable in periodic installments including interest at an
average rate of 7.4%. Some acquisition notes require balloon payments which
are included in the aggregate maturity schedule.
Industrial Development revenue bonds have variable interest rates ranging
from 60% to 75% of the prime rate. The bonds mature at various dates between
1996 and 2006. Certain bonds are redeemable at the option of the issuer. The
bonds are secured by mortgages on certain plant and equipment.
Certain of the Company's credit facility agreements contain restrictive
covenants which include the maintenance of a minimum equity level, maintenance
of certain financial ratios and restrictions on additional borrowings and
dividend payments.
F-14
<PAGE> 43 AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(8) INDEBTEDNESS - (Continued)
The aggregate maturities of long-term debt for the five years ending
March 31, 2000 and thereafter are as follows (in thousands):
Years Ending March 31, Aggregate Maturity
______________________ __________________
1996 . . . . . . . . . . . . . . . . . . . $ 11,780
1997 . . . . . . . . . . . . . . . . . . . 104,332
1998 . . . . . . . . . . . . . . . . . . . 48,326
1999 . . . . . . . . . . . . . . . . . . . 31,292
2000 . . . . . . . . . . . . . . . . . . . 36,217
2001 and thereafter. . . . . . . . . . . . 39,803
_______
$271,750
=======
The fair value of long term debt as of March 31, 1995 was approximately $274
million.
(b) Swap Agreements
In managing interest rate exposure, principally under the Company's
floating rate revolving credit facilities, the Company has entered into
thirteen interest rate swap agreements during the period from June 1992
through March 31, 1995. The interest rate swap agreements are with major
financial institutions having a total notional principal amount of $138
million at March 31, 1995. Approximately $119 million of the swap agreements
require fixed interest payments based on an average effective rate of 7.3% for
remaining periods ranging between 3 and 8 years. The remaining $19 million of
swap agreements require floating rates (6.5% at March 31, 1995). The effect
of the swap agreements were to increase interest expense $1.2 million and $1.4
million in 1995 and 1994, respectively. Under the terms of four of the swap
agreements, the Company has elected to receive the discounted value of the
counterparty's interest payments upfront. At March 31, 1995, approximately
$2.0 million and $7.0 million of such payments were included in accrued
expenses and other non-current liabilities, respectively.
The Company continually monitors its positions and the credit ratings of
its counterparties, and does not anticipate nonperformance by the
counterparties. The net gain to settle all interest rate swap agreements at
March 31, 1995 was approximately $900 thousand.
The aggregate maturities of the Company's interest rate swaps by type of
swap for the five years ending March 31, 2000 and thereafter are as follows
(in thousands):
Notional Principal Amounts
__________________________
Years Ending March 31, Pay-Fixed Receive-Fixed
______________________ _________ _____________
1998 . . . . . . . . . . . . . 30,000 0
1999 . . . . . . . . . . . . . 12,500 7,500
2000 and thereafter. . . . . . 76,074 12,000
_______ ______
$118,574 $19,500
======= ======
F-15
<PAGE> 44
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(9) STOCKHOLDERS' EQUITY
(a) Common Stock
In August 1994, the Company increased the number of authorized shares of
common stock from 55 million to 200 million shares.
On October 28, 1993, the Company's Board of Directors declared a
two-for-one stock split to stockholders of record on November 9, 1993, payable
on November 24, 1993. Stock options and other rights to acquire the Company's
common stock reflect the split. All references to the number of shares,
except shares authorized, reflect the stock split.
(b) Preferred Stock and Redeemable Preferred Stock
The Company is authorized to issue 20 million shares of preferred stock.
At March 31, 1995 and 1994, no shares were outstanding. The preferred stock
may be issued from time to time by the Board of Directors in one or more
series, and the Board of Directors is authorized to fix the dividend rights
and terms, conversion rights, voting rights, rights and terms of redemption,
liquidation preferences, and any other rights, preferences, privileges and
restrictions of any series of Preferred Stock, and the number of shares
constituting each such series and designation thereof.
Additionally, the Company is authorized to issue 30,000 shares of
redeemable preferred stock. At March 31, 1995 and 1994, no shares were
outstanding.
(c) Treasury Stock
In January 1995, the Company's Board of Directors approved the repurchase
of up to one million shares of Airgas common stock. At March 31, 1995, the
Company had purchased 235,900 shares of common stock. Through May 10, 1995,
the Company has purchased an additional 420,200 shares.
(d) Stock Options
The Company has a stock option plan for officers and key employees and
has reserved 7,040,000 shares under this plan. Options are granted on terms
and conditions determined by a committee of the Board of Directors. At March
31, 1995, 2,367,038 options were available for issuance.
F-16
<PAGE> 45
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(9) STOCKHOLDERS' EQUITY - (Continued)
The following table summarizes the activity of the plan during the three
years ended March 31, 1995: Number Price Per
of Shares Share
__________ _________
March 31, 1993
Outstanding, beginning of year . . . . . . . . 2,274,408 $2.88 - $6.00
Granted. . . . . . . . . . . . . . . . . . . . 769,000 6.60 - 6.97
Exercised. . . . . . . . . . . . . . . . . . . (382,650) 2.88 - 5.79
Expired. . . . . . . . . . . . . . . . . . . . (144,112) 2.88 - 6.60
March 31, 1994
Outstanding, beginning of year . . . . . . . . 2,516,646 2.91 - 6.97
Granted. . . . . . . . . . . . . . . . . . . . 669,660 12.63 - 17.13
Exercised. . . . . . . . . . . . . . . . . . . (527,704) 2.91 - 6.97
Expired. . . . . . . . . . . . . . . . . . . . (33,152) 3.66 - 12.63
March 31, 1995
Outstanding, beginning of year . . . . . . . . 2,625,450 $ 2.91 -$17.13
Granted. . . . . . . . . . . . . . . . . . . . 502,300 22.63 - 29.41
Exercised. . . . . . . . . . . . . . . . . . . (212,030) 2.91 - 15.78
Expired. . . . . . . . . . . . . . . . . . . . (1,250) 6.60 - 12.63
Outstanding, end of year . . . . . . . . . . . 2,914,470 $ 3.66 -$29.41
The Company maintains a stock option plan covering Directors who are not
employees which has 400,000 shares reserved. At March 31, 1995, 220,000
options were available for issuance.
The following table summarizes the activity of the plan during the three
years ended March 31, 1995:
Number Price Per
of Shares Share
__________ _________
March 31, 1993
Outstanding, beginning of year . . . . . . . . 92,000 $4.19 - $4.41
Granted. . . . . . . . . . . . . . . . . . . . 32,000 4.19 - 8.31
March 31, 1994
Outstanding, beginning of year . . . . . . . . 124,000 4.19 - 8.31
Granted. . . . . . . . . . . . . . . . . . . . 28,000 17.13
Exercised. . . . . . . . . . . . . . . . . . . (16,000) 4.19 - 4.41
March 31, 1995
Outstanding, beginning of year . . . . . . . . 136,000 4.19 - 17.13
Granted. . . . . . . . . . . . . . . . . . . . 20,000 27.63
Outstanding, end of year . . . . . . . . . . . 156,000 4.19 - 27.63
(e) Stock Purchase Warrants
The Company and the Chairman of the Company were parties to a Stock and
Warrant Issuance Agreement, as amended (the "Warrant Agreement"), which was
entered into in connection with the Company's acquisition of US Airgas, Inc.,
of which the Chairman was the majority shareholder, in May 1986. Pursuant to
the Warrant Agreement, the Chairman received warrants to purchase a total of
7,063,716 shares of the Company's common stock. Subsequent to the grant
dates, the Chairman transferred warrants to purchase 1,488,400 shares of
common stock to employees of the Company and to certain other individuals.
The expiration date of the warrants held by these individuals is May 1, 1996.
F-17
<PAGE> 46
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(9) STOCKHOLDERS' EQUITY - (Continued)
During 1991, in connection with an amendment to the Warrant Agreement
which extended the original expiration date and increased the exercise price
of the warrants, the Chairman exercised warrants to purchase 605,864 shares of
common stock for approximately $1.1 million. On February 17, 1993, the
Chairman exchanged warrants to purchase 4,962,612 shares of common stock for a
net issuance, as provided for under the Warrant Agreement, of 3,649,464 shares
of common stock.
The following table summarizes the activity of the stock purchase
warrants during the three years ended March 31, 1995.
Number Price Per
of Shares Share
__________ _________
March 31, 1993
Outstanding, beginning of year . . . . . . . . 6,461,452 2.52 - 6.00
Exercised. . . . . . . . . . . . . . . . . . . (446,000) 2.52 - 4.38
Chairman's net issuance exercise . . . . . . . (4,962,612) --
March 31, 1994
Outstanding, beginning of year . . . . . . . . 1,052,840 3.36 - 4.38
Exercised. . . . . . . . . . . . . . . . . . . (240,700) 3.52 - 4.38
March 31, 1995
Outstanding, beginning of year . . . . . . . . 812,140 $3.36 - $4.38
Exercised. . . . . . . . . . . . . . . . . . . 57,400 3.52 - 4.38
Outstanding, end of year . . . . . . . . . . . 754,740 $3.36 - $4.38
(f) Shareholder Rights Plan
Under the terms of a Shareholder Rights Plan, preferred share purchase
rights were distributed during 1988 as a dividend at the rate of one right for
each common share. The number of rights outstanding is subject to adjustment
under certain circumstances and all rights expire on August 1, 1998. The
rights are not exercisable until a person or entity acquires twenty percent of
the Company's common stock. Each right will entitle the holder to buy $32.50
worth of the Company's common stock at an exercise price of $16.25.
(10) JOINT VENTURE
The Company is a partner in a joint venture which primarily sells calcium
carbide. The Company and its joint venture partner, Elkem Metals Company
("Elkem"), have equal control over activities of the joint venture. Based on
a product sourcing arrangement, the joint venture purchases all of its calcium
carbide needs from the venturers. Also, earnings and losses generated by the
joint venture, are allocated 55 percent to the Company and 45 percent to
Elkem. The Company's calcium carbide operations and equity in the earnings
related to the joint venture are reported as components of manufacturing net
sales and operating expenses.
The Company and Elkem receive marketing fees, based on net sales, for
acting as exclusive sales and marketing agents for the joint venture.
Additionally, as general manager of the joint venture, Elkem receives a
management fee based on net sales.
F-18
<PAGE> 47
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(10) JOINT VENTURE - (Continued)
Condensed balance sheet information as of March 31, 1995 and statement of
operations for the joint venture for the year ended March 31, 1995 are as
follows:
(In thousands)
_____________
Balance Sheet
Current assets . . . . . . . . . . . . . . . . . . . . . . $ 6,680
Property, plant and equipment, net . . . . . . . . . . . . 348
______
$ 7,028
=====
Current liabilities. . . . . . . . . . . . . . . . . . . . $ 4,274
Partners' capital. . . . . . . . . . . . . . . . . . . . . 2,754
______
Total liabilities and partners' capital. . . . . . . . . $ 7,028
======
Statement of Operations
Net sales. . . . . . . . . . . . . . . . . . . . . . . . . $40,239
Costs and expenses . . . . . . . . . . . . . . . . . . . . (38,836)
Other income, net. . . . . . . . . . . . . . . . . . . . . 89
______
Net earnings. . . . . . . . . . . . . . . . . . . . . $ 1,492
======
(11) INTEREST EXPENSE, NET
Interest expense, net, consists of:
March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
Interest expense. . . . . . . . . . . . . . . $18,476 $13,189 $12,157
Interest and finance charge income. . . . . . (851) (703) (754)
______ ______ ______
$17,625 $12,486 $11,403
====== ====== ======
(12) OTHER INCOME, NET
Other income, net, consists of:
March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
Net gain (loss) from plant and equipment
sales. . . . . . . . . . . . . . . . . . . . $ (110) $ 63 $292
Gain on sale of investment. . . . . . . . . . 560 -- --
Other income,net . . . . . . . . . . . . . . 617 390 254
_____ ___ ___
$1,067 $453 $546
===== === ===
F-19
<PAGE> 48
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(13) INCOME TAXES
Pre-tax earnings were derived from the following sources:
Years Ended March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
United States . . . . . . . . . . . . . . . . $54,239 $35,621 $22,917
Foreign . . . . . . . . . . . . . . . . . . . 1,134 696 363
______ ______ ______
$55,373 $36,317 $23,280
====== ====== ======
Income tax expense consisted of:
Years Ended March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
Current:
Federal . . . . . . . . . . . . . . . . . $ 9,997 $ 6,515 $ 4,762
Foreign . . . . . . . . . . . . . . . . . 573 326 111
State . . . . . . . . . . . . . . . . . . 1,775 997 780
______ ______ ______
12,345 7,838 5,653
______ ______ ______
Deferred:
Federal . . . . . . . . . . . . . . . . . . 9,829 6,827 4,348
Foreign . . . . . . . . . . . . . . . . . . 47 61 96
State . . . . . . . . . . . . . . . . . . . 1,673 1,301 714
______ ______ ______
11,549 8,189 5,158
______ ______ ______
$23,894 $16,027 $10,811
====== ====== ======
F-20
<PAGE> 49
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(13) INCOME TAXES - (Continued)
Significant differences between taxes computed at the federal statutory
rate and the provision for income taxes were:
Years Ended March 31,
___________________________
1995 1994 1993
____ ____ ____
Taxes at U.S. federal statutory rate . . . . . . 35.0% 35.0% 34.0%
Increase in income taxes resulting from:
State income taxes, net of federal benefit . . . 4.0 4.1 4.2
Increase in statutory rate on deferred tax items -- 4.5 --
Amortization of non-deductible goodwill. . . . . 1.8 2.3 3.1
Adjustment of federal and state accruals . . . . -- (4.5) --
Other, net . . . . . . . . . . . . . . . . . . . 2.4 2.7 5.1
____ ____ ____
43.2% 44.1% 46.4%
==== ==== ====
The significant components of deferred income tax expense attributable to
earnings for the years ended March 31, 1995 and 1994 are as follows:
Years Ended March 31,
___________________________
(In thousands) 1995 1994
______________ ____ ____
Deferred tax expense (exclusive of the
effects of other components listed below). . . . $11,549 $ 8,189
Adjustments to deferred tax assets and
liabilities for enacted changes in tax laws
and rates. . . . . . . . . . . . . . . . . . . . -- 663
Adjustment of federal and state accruals. . . . . -- (663)
______ _____
$11,549 $ 8,189
====== =====
F-21
<PAGE> 50
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(13) INCOME TAXES - (Continued)
The tax effects of cumulative temporary differences that gave rise to the
significant portions of the deferred tax liability and deferred tax asset were
as follows:
Years Ended March 31,
_______________________
(In thousands) 1995 1994
______________ ____ ____
Deferred Tax Assets:
____________________
Inventories . . . . . . . . . . . . . . . . . . $ 1,368 $ 1,015
Accounts Receivable . . . . . . . . . . . . . . 885 997
Deferred Rental Income. . . . . . . . . . . . . 880 799
Insurance Reserves. . . . . . . . . . . . . . . 1,791 1,383
Other Reserves. . . . . . . . . . . . . . . . . 2,296 1,600
AMT Credit Carryforwards. . . . . . . . . . . . 3,079 5,656
Other . . . . . . . . . . . . . . . . . . . . . 1,185 835
______ ______
11,484 12,285
______ ______
Deferred Tax Liabilities:
_________________________
Property and equipment. . . . . . . . . . . . . (70,787) (57,975)
Intangible Assets . . . . . . . . . . . . . . . (2,734) (3,258)
Other . . . . . . . . . . . . . . . . . . . . . (286) (551)
______ ______
(73,807) (61,784)
______ ______
Net Deferred Tax Liability . . . . . . . . . . . $(62,323) $(49,499)
====== ======
The Company has recorded tax benefits amounting to $1.9 million, $3.6
million and $1.6 million in 1995, 1994 and 1993, respectively, resulting from
the exercise of stock options and warrants. This benefit has been recorded in
capital in excess of par value.
The Internal Revenue Service (the "IRS") has completed an examination of
the Company's consolidated income tax returns for the years ended March 31,
1988 through 1991. The results of the completed examination did not have a
material effect on the Company's financial position, results of operations or
liquidity. The IRS has also notified the Company that an examination will be
conducted for the year ended March 31, 1993. Management believes that the
results of the pending examination will not have a material effect on the
Company's financial position, results of operations or liquidity.
F-22
<PAGE> 51 AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(13) INCOME TAXES - (Continued)
In fiscal 1994, the Company retroactively adopted Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes,"
(Statement No. 109) as of April 1, 1992. The adoption of Statement No. 109
had no material impact on the Company's results of operations or retained
earnings. The effect of adopting Statement No. 109 at April 1, 1992 was to
establish a current deferred tax asset of $2.3 million, increase net property
and equipment and goodwill by $9.0 million and $100 thousand, respectively,
and to increase deferred tax liabilities by $11.4 million. The restatement at
March 31, 1993 resulted in a current deferred tax asset of $2.2 million, an
increase in net property and equipment and goodwill of $10.9 million and $3.0
million, respectively, and an increase in deferred tax liabilities of $16.1
million.
(14) BENEFIT PLANS
(a) Pension and Profit Sharing Plans
The Company has a defined contribution 401(k) plan covering substantially
all full-time employees. Under the terms of the plan, the Company makes
matching contributions up to two percent of participants' wages plus
additional discretionary profit sharing contributions based upon the
profitability of the Company. Amounts expensed under the plan for 1995, 1994
and 1993 were $4.7 million, $3.3 million and $2.3 million, respectively.
During 1993, the Company authorized termination of two defined benefit
pension plans effective December 31, 1992. At December 31, 1994, the plans'
projected benefit obligations approximate the plans' net assets available for
benefits. The settlement of the vested benefit obligations by the purchase of
nonparticipating annuity contracts or lump-sum payments for covered employees
is expected to be completed during 1996 or 1997. No significant gain or loss
is anticipated when the plans' benefit obligations are settled.
Certain subsidiaries of the Company participate in multi-employer
pension plans which provide defined benefits to union employees. Contributions
are made to the plans in accordance with negotiated labor contracts. The
Company has not taken any action to terminate or withdraw from these plans.
Management believes that the Company's liability, if any, for multi-employer
plan withdraw liability will not have a material effect on the Company's
financial position, results of operations, or liquidity. Amounts expensed
under these plans for 1995 and 1994 were $418 thousand and $227 thousand,
respectively.
(b) Employee Stock Purchase Plan
During January 1994, the Company established an employee stock purchase
plan (the "Plan") to encourage and assist employees to acquire an equity
interest in the Company. The Plan is authorized to issue 1 million shares of
common stock. Generally, employees may elect to have 1 to 15 percent of their
gross pay withheld to buy Airgas, Inc. common stock at 85 to 95 percent of the
market value depending upon base salary levels. Market value under the Plan
is either the employees' enrollment date market value or the quarterly
purchase date market value, whichever is lower. An employee may lock-in a
purchase price for up to 27 months. The Plan is designed to comply with the
requirements of section 423 of the Internal Revenue Code.
F-23
<PAGE> 52
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(14) BENEFIT PLANS - (Continued)
Under the Plan, 150,102 and 29,735 shares were issued at an average
purchase price of $18.03 and $17.99 per share during 1995 and 1994,
respectively.
(c) Other Employee Benefits
The Company sponsors a multi-employer postretirement medical benefit plan
for certain employees of one subsidiary under a collective bargaining
agreement. In accordance with SFAS 106 "Employers Accounting for
Postretirement Benefits Other Than Pensions" and APB Opinion No. 16 "Business
Combinations", the postretirement benefit obligation was recorded at the
acquisition date.
The net postretirement benefit expense for the year ended March 31, 1995
was $88 thousand. The Company's funded postretirement benefit obligation was
$837 thousand at March 31, 1995.
In determining the APBO, the discount rate used to estimate the actuarial
present value of other postretirement benefits was 8.25% at March 31, 1995.
The assumed rate of increase in the health care cost trend rate for employees
less than age 65 was 9.75% for March 31, 1995, declining gradually to 6.0%
over the next four years. For employees 65 and older, the assumed rate of
increase is 6.62% for March 31, 1995, declining gradually to 5.5% over the
next four years. A 1% increase in the healthcare cost trend rate would have
increased net postretirement benefit expense approximately $17 thousand and
the APBO approximately $124 thousand at March 31, 1995.
The Company does not have any significant benefit arrangements related to
SFAS No. 112 "Employers' Accounting for Postemployment Benefits," and
accordingly, the effects of adopting Statement No. 112 were immaterial.
(15) RELATED PARTIES
The Chairman and Vice President -- Corporate Development, were partners
in the law firm which provides legal services to the Company. During the years
ended March 31, 1995, 1994 and 1993, fees paid to the law firm totalled $525
thousand, $551 thousand, and $395 thousand, respectively.
The Company is a party to a sales agency agreement for the sale of
carbon products with a company which is a greater than five percent
stockholder and a director of which is a former director of the Company. The
sales agency agreement expires in October 2003. During the years ended March
31, 1995, 1994 and 1993, the Company paid approximately $543 thousand, $515
thousand and $495 thousand, respectively, under this agreement.
A member of the Company's board of directors is the president of a
national producer and distributor of industrial gases, welding supplies and
related equipment in the Southeastern United States. During the years ended
March 31, 1995 and 1994, this company paid $914 thousand and $1.1 million,
respectively to a joint venture of the Company for the purchase of calcium
carbide.
F-24
<PAGE> 53
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(16) LEASES
The Company leases certain distribution facilities and equipment under
long-term operating leases with varying terms. Most leases contain renewal
options and in some instances, purchase options. Rentals under these long-term
leases (exclusive of real estate taxes, insurance, and other expenses payable
under the terms of the leases) for the years ended March 31, 1995, 1994 and
1993, amounted to $12.9 million, $9.7 million and $7.6 million, respectively.
Additionally, the Company leases certain operating facilities from employees
of the Company who were previous owners of businesses acquired.
During 1995, the Company entered into certain operating leases with a
trust established by a commercial bank. The trust is committed to purchase
real estate properties up to an aggregate amount of $25 million. The trust
holds title to the properties and leases the properties to the Company. The
rental payments are based on LIBOR plus an applicable margin and the cost of
the property acquired by the trust. The Company has entered into interest
rate swap agreements in a notional principal amount of $10 million to hedge
the effects of fluctuations in the LIBOR based rental rate.
At the expiration of the leases with the trust in 1999, the Company has
the option to purchase the real properties at amortized cost or assist in the
sale of the properties to a third party. The Company has guaranteed a portion
of the debt outstanding against these properties in the event the proceeds of
a sale are not sufficient to cover the trust's investment in the properties.
At March 31, 1995, the Company had a contingent guarantee of approximately
$4.2 million related to this lease facility.
At March 31, 1995, future minimum lease payments under noncancellable
operating leases are as follows: (in thousands)
______________
1996 . . . . . . . . . . . . . . . . . . $13,561
1997 . . . . . . . . . . . . . . . . . . 10,784
1998 . . . . . . . . . . . . . . . . . . 8,719
1999 . . . . . . . . . . . . . . . . . . 5,900
2000 . . . . . . . . . . . . . . . . . . 3,523
2001 and thereafter. . . . . . . . . . . 5,533
______
$48,020
======
F-25
<PAGE> 54
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(17) COMMITMENTS AND CONTINGENCIES
The Company is involved in various legal and regulatory proceedings which
have arisen in the ordinary course of its business and have not been finally
adjudicated. These actions, when ultimately concluded and determined, will
not, in the opinion of management, have a material adverse effect upon the
Company's consolidated financial position, results of operations or liquidity.
(18) CASH FLOWS
Cash paid for interest expense and income taxes was as follows:
Years Ended March 31,
___________________________
(In thousands) 1995 1994 1993
______________ ____ ____ ____
Interest . . . . . . . . . . . . . . . . . . . $19,011 $13,502 $12,457
Income taxes (net of refunds). . . . . . . . . 11,411 5,333 4,450
====== ====== ======
The total purchase price, fair value of assets acquired, cash paid and
liabilities assumed for business acquisitions is described in note 2.
During 1995 and 1994, the Company entered into capital lease obligations
for approximately $3.7 million and $700 thousand, respectively.
During 1995, the Company retired 1.9 million shares of treasury stock.
(19) MINORITY INTEREST IN SUBSIDIARIES
Minority interests in subsidiaries represent the minority shareholders'
proportionate share of the equity and the results of operations of certain
subsidiaries. Under the terms of exchange rights agreements between the
Company and minority shareholders, the Company, under certain circumstances,
may require or permit exchange of the minority interests of a subsidiary
for common stock of the Company. The agreements provide the minority
shareholders with the right to exchange their subsidiary shares for common
stock of the Company on August 31, 1995 or any other exchange date designated
by the Board of Directors. Each exchange will be based on the fair value of
the subsidiary's shares and the market price of the Company's common stock as
of valuation dates designated by the Board of Directors.
F-26
<PAGE> 55
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
On February 28, 1994 and July 1, 1992, in connection with optional
exchanges, certain minority shareholders elected to exchange their minority
interests for an aggregate of 83,366 and 702,000 shares of common stock,
respectively. The market price of the Company's common stock on February 28,
1994 and July 1, 1992 was $20.875 and $7.438 per share, respectively . The
acquisition of the minority interests has been recorded using the purchase
method of accounting.
During 1995, 1994 and 1993, the Company sold minority interests in
certain of its subsidiaries to employees based on the estimated fair market
value of the subsidiary shares. These sales of subsidiary shares were
accounted for as capital transactions and, therefore, no gain or loss was
recorded.
(20) SUMMARY BY BUSINESS SEGMENT
The Company, through its subsidiaries, is principally engaged in two
related businesses: 1) the distribution of industrial, medical and specialty
gases, and the distribution of protective and welding equipment; and 2) the
manufacture of products for the industrial gas industry.
Industrial, medical and specialty gases are distributed through the
Company's subsidiaries which operate in four divisions with locations in 37
states and Canada. The industrial gas distribution market is broad and
includes most major industries.
F-27
<PAGE> 56
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Products manufactured by the Company include nitrous oxide, a gas with
applications in the medical, food packaging and certain high technology
electronic industries and calcium carbide and carbon products for the
production of acetylene gas and for the non-ferrous metal industry.
(In thousands) Distribution Manufacturing Total
______________ ____________ _____________ _____
1995
Net sales. . . . . . . . . . . . . . . . $654,381 $ 33,602 $687,983
Operating income . . . . . . . . . . . . 66,521 6,079 72,600
Assets . . . . . . . . . . . . . . . . . 613,320 32,317 645,637
Depreciation and amortization. . . . . . 35,548 1,320 36,868
Additions to plant and equipment
excluding business acquisitions. . . . . 35,961 751 36,712
1994
Net sales . . . . . . . . . . . . . . . 486,836 32,513 519,349
Operating income . . . . . . . . . . . . 42,399 6,268 48,667
Assets . . . . . . . . . . . . . . . . . 487,701 27,196 514,897
Depreciation and amortization. . . . . . 29,101 1,470 30,571
Additions to plant and equipment
excluding business acquisitions. . . . . 20,515 803 21,318
1993
Net sales . . . . . . . . . . . . . . . 379,899 30,872 410,771
Operating income . . . . . . . . . . . . 28,443 5,924 34,367
Assets . . . . . . . . . . . . . . . . . 375,718 23,759 399,477
Depreciation and amortization. . . . . . 26,540 1,505 28,045
Additions to plant and equipment
excluding business acquisitions. . . . . 13,792 910 14,702
Corporate operating expenses are allocated between the Company's
distribution and manufacturing business segments based on relative sales
dollars.
F-28
<PAGE> 57
AIRGAS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(21) SUPPLEMENTARY INFORMATION (UNAUDITED)
Summary By Quarter
This table summarizes the unaudited results of operations for each
quarter of 1995 and 1994:
(In thousands, except per share data) First Second Third Fourth
_____________________________________ _____ ______ _____ ______
1995
Net sales . . . . . . . . . . . . . . . $159,462 $164,986 $174,112 $189,423
Operating income. . . . . . . . . . . . 15,701 17,115 18,577 21,207
Net earnings. . . . . . . . . . . . . . 6,789 7,460 7,790 9,440
Net earnings per share (1):
Primary . . . . . . . . . . . . . . . $ .21 $ .23 $ .24 $ .29
Fully diluted . . . . . . . . . . . . $ .21 $ .23 $ .24 $ .29
1994 (2)
Net sales . . . . . . . . . . . . . . . $115,934 $126,763 $130,081 $146,571
Operating income. . . . . . . . . . . . 10,233 11,645 12,041 14,748
Net earnings. . . . . . . . . . . . . . 4,192 4,633 5,055 6,410
Net earnings per share (1):
Primary . . . . . . . . . . . . . . . $ .13 $ .14 $ .16 $ .20
Fully diluted . . . . . . . . . . . . $ .13 $ .14 $ .16 $ .20
__________________
(1) Earnings per share calculations for each of the quarters are based on the
weighted average number of shares outstanding in each period. Therefore,
the sum of the quarters do not necessarily equal the full year earnings
per share.
(2) Effective April 1, 1993, the Company changed its estimate of the useful
lives of its acetylene and high pressure cylinders from 20 to 30 years.
This change was made to better reflect the estimated periods during which
these assets will remain in service. The change had the effect of
reducing depreciation expense in 1994 by approximately $3.1 million and
increasing net earnings by $1.9 million or $.06 per share.
F-29
<PAGE> 58
(21) SUPPLEMENTARY INFORMATION (UNAUDITED) - (Continued)
Financial Summary
Years Ended March 31, (6)
________________________________
(In thousands, except per share 1995 1994 1993 1992 1991
amounts) (3)
_______________________________ ____ ____ ____ ____ ____
Operating Results
Net sales . . . . . . . . . . .$687,983 $519,349 $410,771 $351,491 $322,478
Depreciation and amortization(1) 36,868 30,571 28,045 23,670 21,410
Operating income. . . . . . . . 72,600 48,667 34,367 26,316 17,286
Interest expense, net . . . . . 17,625 12,486 11,403 12,838 15,179
Income taxes(2) . . . . . . . . 23,894 16,027 10,811 7,718 3,400
Net earnings. . . . . . . . . . 31,479 20,290 12,469 7,292 1,166
Earnings Per Share (4):
Primary:
Net earnings . . . . . . . . .$ .96 $ .63 $ .40 $ .27 $ .05
Fully diluted:
Net earnings . . . . . . . . .$ .96 $ .63 $ .39 $ .26 $ .05
______________________________________________________________________________
Balance Sheet Data
Working capital . . . . . . . .$ 54,084 $ 47,071 $ 40,253 $ 39,425 $ 48,774
Total assets. . . . . . . . . . 645,637 514,897 399,477 338,218 307,576
Current portion of long-term
debt. . . . . . . . . . . . . . 11,780 10,304 9,923 10,026 7,383
Long-term debt. . . . . . . . . 259,970 205,311 158,629 151,098 149,826
Stockholders' equity (5). . . . 189,652 156,867 127,571 104,931 91,779
__________________
(1) Effective April 1, 1993, the Company changed its estimate of the useful
lives of its acetylene and high pressure cylinders from 20 to 30 years.
This change was made to better reflect the estimated periods during which
these assets will remain in service. The change had the effect of
reducing depreciation expense in 1994 by approximately $3.1 million and
increasing net earnings by $1.9 million or $.06 per share.
(2) The Company has retroactively adopted Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes," (Statement No. 109) as
of April 1, 1992. Statement No. 109 required the use of the liability
method of accounting for deferred income taxes. The adoption of Statement
No. 109 had no material impact on the Company's results of operations or
retained earnings.
(3) During 1991, the Company recorded a $4.2 million pre-tax restructuring
charge related to the disposal of certain businesses and severance costs
associated with downsizing of the Company. Including the restructuring
charge, operating losses of these businesses totalled $5.3 million during
1991. During 1992 and 1993, the restructured businesses were sold.
(4) See notes 3 and 9 to the Company's consolidated financial statements for
information regarding earnings per share calculations and stock split
information.
(5) The Company has not paid any dividends.
(6) During the fiscal years 1991 through 1995, the Company acquired 99
industrial gas distributors.
F-30
<PAGE> 59
SCHEDULE II
CONSOLIDATED
AIRGAS, INC. AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
For the Years Ended March 31, 1995, 1994 and 1993
(In thousands of dollars)
Column A Column B Column C
________ ________ ________
Additions
_________
Charged
Balance at Charged to (Credited)
Beginning Cost and to Other
Description of Period Expense Accounts
____________ _________ __________ ____________
1995 Accounts Receivable --
Allowance for doubtful accounts . . $ 4,207 $ 3,102 $ 1,033 (1)
LIFO cost reserve . . . . . . . . . 659 402 --
Insurance reserves. . . . . . . . . 5,341 17,038 132
1994 Accounts Receivable --
Allowance for doubtful accounts . . $ 3,392 $ 2,884 $ 1,155 (1)
LIFO cost reserve . . . . . . . . . 465 194 --
Insurance reserves. . . . . . . . . 7,046 13,031 165
1993 Accounts Receivable --
Allowance for doubtful accounts . . $ 2,947 $ 2,185 $ 1,054 (1)
LIFO cost reserve . . . . . . . . . 441 24 --
Insurance reserves. . . . . . . . . 5,087 10,998 106
(COLUMNS CONTINUED ON NEXT PAGE)
F-31
<PAGE> 60
SCHEDULE II
CONSOLIDATED
AIRGAS, INC. AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
For the Years Ended March 31, 1995, 1994 and 1993
(In thousands of dollars)
(Columns Continued)
Column A Column D Column E
________ ________ ________
Balance
at End of
Description Deductions Period
____________ ______________ ________
1995 Accounts Receivable --
Allowance for doubtful accounts . . . $ (4,181) (2) $ 4,161
LIFO cost reserve . . . . . . . . . . -- 1,061
Insurance reserves. . . . . . . . . . (16,207) 6,304
1994 Accounts Receivable --
Allowance for doubtful accounts . . . $ (3,224) (2) $ 4,207
LIFO cost reserve . . . . . . . . . . -- 659
Insurance reserves. . . . . . . . . . (14,901) 5,341
1993 Accounts Receivable --
Allowance for doubtful accounts . . . $ (2,794) (2) $ 3,392
LIFO cost reserve . . . . . . . . . . -- 465
Insurance reserves. . . . . . . . . . (9,145) 7,046
________
(1) Includes collections on accounts previously written-off and allowances for
doubtful accounts of businesses acquired less the allowance for doubtful
accounts of businesses sold.
(2) Write-off of uncollectible accounts.
F-31, Continued
<PAGE>
<PAGE> EX-1
Exhibit 11
AIRGAS, INC. AND SUBSIDIARIES
EARNINGS PER SHARE CALCULATIONS
For the Years Ended March 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
Years Ended March 31,
____________________________________________
1995 1994
Primary/ Primary/ 1993
Fully Fully 1993 Fully
Diluted Diluted Primary Diluted
_______ _______ _______ _______
<S> <C> <C> <C> <C>
Adjustments of Shares Outstanding
_________________________________
Shares of common stock
outstanding-weighted 31,073,964 30,674,073 26,203,678 26,203,678
Net common stock equivalents 1,688,460 1,715,711 4,682,582 5,812,340
__________ __________ __________ __________
Adjusted shares outstanding 32,762,424 32,389,784 30,886,260 32,016,018
========== ========== ========== ==========
Actual Net Earnings
___________________
Actual net earnings $31,479,000 $20,290,000 $12,469,000 $12,469,000
========== ========== ========== ==========
Net Earnings Per Share $ .96 $ .63 $ .40 $ .39
========== ========== ========== ==========
</TABLE>
Primary and fully diluted earnings per share amounts for 1995, 1994 and 1993
were determined using the treasury stock method.
<PAGE>
<PAGE> EX-2
Exhibit 21
AIRGAS, INC. AND SUBSIDIARIES
Airgas, Inc. (Parent)
Airgas Breathing Air Systems, Inc.
Airgas Canada, Inc.
Airgas Holdings, Inc.
Airgas Holdings Canada Limited
Airgas Houston
Airgas International, Inc.
Airgas Management, Inc.
Airgas New England Real Estate, Inc.
Airgas Ontario, Inc.
Airgas Realty, Inc.
American Carbide and Carbon Corporation (d/b/a Midwest Carbide)
Bay Airgas, Inc.
Cascade Airgas, Inc.
Cryodyne Technologies, Inc.
Cylinder Leasing Corp.
Empire Airgas, Inc.
Florida Airgas,Inc.
Great Lakes Airgas, Inc.
Great Western Airgas, Inc.
Gulf States Airgas, Inc.
Keystone Airgas, Inc.
Lone Star Airgas, Inc.
Maritius Industrial Gases, Inc.
Michigan Airgas, Inc.
Mid America Airgas, Inc.
Mid America Airgas Holdings
Midwest Airgas, Inc.
Mountain Airgas, Inc.
Nitrous Oxide Corp.
Northeast Airgas, Inc.
Northern Gases, Inc.
Pacific Airgas, Inc.
G.S. Parsons Company
Post Airgas, Inc.
Potomac Airgas, Inc.
Sierra Airgas, Inc.
Sooner Airgas, Inc.
Southeast Airgas, Inc.
Southern California Airgas, Inc.
Specialty Products and Equipment, Inc.
Trinity Airgas
U.S. Airgas, Inc.
Westwind Company
Virginia Welding Supply
Airgas Polska SP.ZO.O.
Poligaz, S.A.
<PAGE>
<PAGE> EX-3
Exhibit 23
Consent of Independent Auditors'
The Board of Directors
Airgas, Inc.:
We consent to incorporation by reference in the Registration Statements (Nos.
33-39433, 33-39325, 33-48388 and 33-57893) on Form S-3 and (Nos. 33-25419,
33-21780, 33-33954, 33-64056, 33-64058, 33-64112 and 33-64114) on Form S-8 of
Airgas, Inc. of our report dated May 10, 1995, relating to the consolidated
balance sheets of Airgas, Inc. and subsidiaries as of March 31, 1995 and 1994,
and the related consolidated statements of earnings, stockholders' equity, and
cash flows and related schedule for each of the years in the three-year period
ended March 31, 1995, which report is included in the March 31, 1995 Annual
Report on Form 10-K of Airgas, Inc. Our report refers to a change in the
accounting for income taxes.
KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
June 6, 1995
<PAGE>
<PAGE>
<PAGE> EX-4
AIRGAS, INC.
AMENDED CERTIFICATE OF INCORPORATION (1)
____________________
ARTICLE 1
The name of the Corporation is Airgas, Inc.
ARTICLE 2
The address of the registered office of the Corporation in the State of
Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at that address is The Corporation
Trust Company.
ARTICLE 3
The purpose of the Corporation is to engage in any lawful act or activity
for which Corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE 4
The total number of shares of capital stock of all classes which the
Corporation has authority to issue is Two Hundred Twenty Million Thirty
Thousand (220,030,000) shares, of which Two Hundred Million (200,000,000)
shares shall be Common Stock, with a par value of One Cent ($0.01) per share,
Twenty Million (20,000,000) shares shall be Preferred Stock, with a par value
of One Cent ($0.01) per share, and Thirty Thousand (30,000) shares shall be
Non-Voting Preferred Stock, with a par value of One Hundred Dollars ($100) per
share.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of
stock are as follows:
COMMON STOCK
Subject to all the rights of the Preferred Stock and Non-Voting Preferred
Stock, and except as may be expressly provided with respect to the Preferred
herein, by law or by the Board of Directors pursuant to this Article 4, the
holders of Common Stock shall have the exclusive right to vote for the
election of directors and on all other matters requiring stockholder action,
each share being entitled to one vote.
(1) Includes three amendments filed on the following dates: August 13, 1987,
November 12, 1989 and August 3, 1994.
<PAGE> EX-5
PREFERRED STOCK
The Preferred Stock may be issued from time to time by the Board of
Directors as shares of one or more series. Subject to the provisions hereof
and the limitations prescribed by law, the Board of Directors is expressly
authorized, prior to issuance, by adopting resolutions providing for the
issuance of, providing for a change in the number of, shares of any particular
series and, to the extent from time to time required by law, by filing a
certificate pursuant to the General Corporation Law or other law hereafter in
effect relating to the same or substantially similar subject matter, to
establish or change the number of shares to be included in each such series
and to fix the designation and relative powers, preferences and rights and the
qualifications and limitations or restrictions thereof relating to the shares
of each such series. The authority of the Board of Directors with respect to
each series include, but not limited to, determination of the following:
(a) the distinctive serial designation of such series and the number of
shares constituting such series provided that the aggregate number of shares
constituting all series of Preferred Stock shall not exceed Twenty Million
(20,000,000);
(b) the annual dividend rate on shares of such series, whether dividends
shall be cumulative and, if so, from which date or dates;
(c) whether the shares of such series shall be redeemable and, if so,
the terms and conditions of such redemption, including the date or dates upon
which such shares shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different conditions and at
different redemption dates;
(d) the obligation, if any, of the Corporation to retire shares of such
series pursuant to a sinking fund;
(e) whether shares of such series shall be convertible into, or
exchangeable for, shares of stock or any other class or classes and, if so,
the terms and conditions of such conversion or exchange, including the price
or prices or the rate or rates of conversion or exchange and the terms of
adjustment, if any;
(f) whether the shares of such series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights;
(g) the rights of the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation; and
(h) any other relative rights, powers, preferences, qualification,
limitations or restrictions thereof relating to such series.
The share of Preferred Stock of any one series shall be identical with
each other in all respects except as to the date from and after which the
dividends thereon shall be cumulative, if cumulative.
The number of authorized shares of Preferred Stock may be increased or
decreased by the affirmative vote of a majority of the stock of the
Corporation entitled to vote without the separate vote of holders of Preferred
Stock as a class.
<PAGE> EX-6
NON-VOTING PREFERRED STOCK
The designations, powers, preferences, rights, qualifications,
limitations and restrictions thereof, and the powers conferred upon the Board
of Directors with respect to the fixing of the preferences, limitations and
relative rights of the shares of Non-Voting Preferred Stock, are as follows:
1. The shares of Non-Voting Preferred Stock may be issued from time to
time, in one or more series of any number of shares, as and when the Board of
Directors shall determine, provided that the aggregate number of shares issued
and not cancelled of any and all such shares of Non-Voting Preferred Stock
shall not exceed the total number of shares of Non-Voting Preferred Stock
herein authorized.
2. All shares of the Non-Voting Preferred Stock shall be of equal rank
and shall be identical in all respects, except that, authority is hereby
vested in the Board of Directors to issue the Non-Voting Preferred Stock in
series, and in connection with the creation of such series to fix by
resolution or resolutions providing for the issue of shares thereof the
preferences, limitations and relative rights of such series to the extent
permitted by this Certificate of Incorporation and the applicable law, in the
following respects:
(a) whether the shares of such series shall be subject to redemption
and, if so, whether redemption shall be mandatory, optional, or both; the
redemption price or prices; and such other terms and conditions on which
shares of Non-Voting Preferred Stock may be redeemed;
(b) whether the shares of such series shall be entitled to limited
voting powers or other special rights upon the failure of the Corporation to
pay dividends on the Non-Voting Preferred Stock.
3. The holders of the Non-Voting Preferred Stock at the time outstanding
shall be entitled to receive, out of funds legally available for the payments
of dividends, cumulative preferential dividends at the annual dividend rate of
$6.00 per share, payable quarter-yearly in each year, on the dates fixed for
the purpose by the Board of Directors, to shareholders of record on the
respective dates, not exceeding 40 days preceding such dividend payment dates,
fixed for the purpose by the Board of Directors, provided however, that
commencing with the first quarter-yearly dividend payment date after four (4)
years after the issuance thereof, annual dividend rate for the Non-Voting
Preferred Stock thereafter shall be $8.00 per share. The dividends on shares
of Non-Voting Preferred Stock shall be cumulative, so that unless the
dividends on outstanding shares of the Non-Voting Preferred Stock, at the
annual dividend rates, and from the dates for accumulative thereof, shall have
been paid or declared set apart for payment for all past quarter-yearly
dividends, but without interest on accrued dividends, no dividend shall be
made on the Common Stock. Any accumulation of dividends on the Non-Voting
Preferred Stock shall not bear interest. The holders on the Non-Voting
Preferred Stock shall not be entitled to receive any dividends thereon other
than the dividends referred to in this Paragraph 3.
4. The Corporation, by action of its Board of Directors may redeem the
whole or any parts of any series of the Non-Voting Preferred Stock at any time
or from time to time, except as may be otherwise provided in the resolutions
providing for the issuance thereof, at the redemption price of the shares
fixed therefore, together with a sum in the case of each share so to be
redeemed, computed at the annual dividend rate above provided from the date
from which dividends on such share became cumulative to the date fixed for
<PAGE> EX-7
such redemption, less the aggregate of the dividends theretofore on such
redemption date paid thereon. Whether any such redemption of the Non-Voting
Preferred Stock shall be optional or mandatory, or both optional and
mandatory, the redemption price or prices, and all other terms and conditions
of any such redemption, shall be fixed by action of the Board of Directors in
the resolution creating and issuing such series of such Non-Voting Preferred
Stock.
5. Before any amount shall be paid to, or any assets distributed among,
the holders of the Common Stock upon any liquidation, dissolution or winding
up of the Corporation, and after paying or providing for the payment of all
creditors of the Corporation, the holder of all shares of each series on Non-
Voting Preferred Stock at the time outstanding shall be entitled to be paid
$100 per share, together with a sum in the case of each such share, computed
at the annual dividend rate herein provided, from the date from which
dividends on such share became cumulative to the date fixed for the payment of
such distributive amount, less the aggregate of the dividends theretofore or
on such date paid thereon or declared and set aside for payment thereon, and
no more.
6. Whenever the full dividends on the shares of all series of the Non-
Voting Preferred Stock at the time outstanding for all past quarter-yearly
dividend periods shall have been paid or declared and set apart for payment,
then such dividends (payable in cash, stock or otherwise), as may be
determined by the Board of Directors may be declared and paid on the Common
Stock but only out of the funds legally available for payment of such
dividends.
7. In the event of any liquidations, dissolution or winding up of the
Corporation, all assets and funds of the Corporation remaining after paying or
providing for the payment of all creditors of the Corporation remaining after
paying or providing for payment to the holders of the shares of all series of
the Non-Voting Preferred Stock of all the full distributive amounts to which
they are respectively entitled, as herein provided, shall be divided among and
paid to the holders of the Common Stock according to their respective shares.
8. (a) No holder or shares of the Common Stock shall be entitled as such
a matter of rights to subscribe for or purchase any part of any new or
additional issue of Common Stock, or securities convertible into Common Stock,
whether issued for cash, property, services, by way of dividends or otherwise.
9. (a) At all meetings of the shareholders of the Corporation, the
holders of shares of Common Stock shall be entitled to one vote for each share
of Common Stock held by them respectively. The holders of shares of the Non-
Voting Preferred Stock shall have a right to vote and shall not be entitled to
notice of any meeting of shareholders of the Corporation, nor to participate
in any such meeting except as herein otherwise expressly provided and except
for those purposes, if any for which said rights cannot be denied or waived
under any mandatory provision of law which shall be controlling.
(b) If and when dividends payable on the Non-Voting Preferred Stock
shall be in default in an amount equivalent to or exceeding four full quarter-
yearly dividends on shares of any series of the Non-Voting Preferred Stock
then outstanding, the holders of all shares of such series shall be entitled
to elect the number of directors, and to exercise such limited voting powers,
as shall be provided by action of the Board of Directors in the resolution
creating and issuing the Non-Voting Preferred Stock.
<PAGE> EX-8
10. The powers of the Board of Directors of the Corporation to fix the
terms and conditions on which the shares of Non-Voting Preferred Stock may be
redeemed, and to fix the limited voting powers of the holders of the shares of
the Non-Voting Preferred Stock upon default of the payment of dividends
payable on the Non-Preferred Stock, as authorized herein, shall be exercised
by the Board of Directors, and may be exercised by the Executive Committee of
the Board of Directors acting for the Board of Directors, by resolution duly
adopted at or prior to the time of creating and issuing each series of Non-
Voting Preferred Stock, by the vote of a majority of directors present at a
duly convened meeting at which a quorum is present, or by unanimous consent in
writing signed by all members of the Board of Directors or the Executive
Committee, as the case may be. Nothing in this paragraph shall authorize the
Board of Directors to change in any manner the rights and preferences of any
outstanding shares of the Non-Voting Preferred Stock previously issued and
outstanding or required, so long as any shares of the Non-Voting Preferred
Stock are then outstanding.
11. So long as any shares of the Non-Voting Preferred Stock are
outstanding, to the extent amendment would change in any manner the rights and
preferences of any shares of the Non-Voting Preferred Stock, this Article IV
may not be amended without the approval of the holders of a majority of the
outstanding shares of the Non-Voting Preferred Stock voting as a single class.
ARTICLE 5
All power of the Corporation shall be exercised by or under the direction
of the Board of Directors except as otherwise provided herein or required by
law.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further creation, definition, limitation and
regulation of the power of the Corporation and of its directors and of its
stockholders, it is further provided:
1. Number, Election and Terms of Directors. Except as otherwise fixed
pursuant to the provisions of Article 4 hereof relating to the rights of the
holders of any class or series of stock having preference over the Common
Stock as to dividends to elect additional directors under specified
circumstances, the number of Directors of the Corporation shall [be fixed at
nine (9)] consist of no less than seven and no more than thirteen members, as
shall be specifically determined from time to time by resolution of the Board
of Directors. The Directors, other than those who may be elected by the
holders of any class or series of stock having preference over the Common
Stock as to dividends or upon liquidation, shall be classified, with respect
to the time for which they severally hold office, into three classes, as
nearly equal in number as possible as shall be provided in the manner
specified in the By-laws, one class to hold office initially for a term
expiring at the annual meeting of stockholders to be held in 1987, another
class to hold office initially for a term expiring at the annual meeting of
stockholders to be held in 1988, and another class to hold office initially
for a term expiring at the annual meeting of stockholders to be held in 1989,
with the members of each class to hold office until their successors are
elected and qualified. At each annual meeting of the stockholders of the
Corporation, the successors to the class of Directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
<PAGE> EX-9
meeting of stockholders held in the third year following the year of their
election.
2. Newly Created Directorships and Vacancies. Expect as otherwise fixed
pursuant to the provisions of Article 4 hereof relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
solely by the affirmative vote of a majority of the remaining Directors then
in office, even though less than a quorum of the Board of Directors. Any
Director elected in accordance with the preceding sentence shall hold office
until the next annual meeting of shareholders. No decrease in the number of
Directors constituting the Board of Directors shall shorten the term of any
incumbent Director.
3. Removal of Directors. Subject to the rights of any class or series of
stock having preference over the Common Stock as to dividends or upon
liquidation to elect Director under specified circumstances, any Director may
be removed from office without cause only by the affirmative vote of the
holders of 67% of the combined voting power of the then outstanding shares of
stock entitled to vote generally in the election of Directors, voting together
as a single class.
4. Stockholder Action. Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called annual
or special meeting of such holders and may not be effected by any consent in
writing by such holders.
5. Special Meetings. Except as otherwise required by law and subject to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Chairman of the
Board, the President, the Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors, or pursuant to the request of
holders of 33% of the combined voting power of the then outstanding shares of
stock entitled to vote generally in the election of Directors, voting together
as a single class.
6. By-Law Amendments. The Board of Directors shall have power to make,
alter, amend and repeal the By-Laws (except so far as the By-Laws adopted by
the stockholders shall otherwise provide.) Any By-Laws made by the Directors
under the powers conferred hereby may be altered, amended or repealed by the
Directors or by the stockholders. Notwithstanding the foregoing and anything
contained in this certificate of incorporation to the contrary, Article III of
the By-Laws shall not be altered, amended or repealed and no provision
inconsistent therewith shall be adopted without the affirmative vote of the
holders of at least 67% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class.
7. Amendment, Repeal, etc. Notwithstanding anything contained in this
certificate of incorporation to the contrary, the affirmative vote of the
holders of at least 67% of the voting power of all shares of the Corporation
entitled to vote generally in the election of Directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with, or repeal, this Article 5 or any provision hereof.
<PAGE> EX-10
Article 6
1. Vote Required for Certain Business Combinations.
(a) Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this certificate of incorporation, and
except as otherwise expressly provided in Section 2 of this Article 6:
(i) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other Corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate of any Interest Stockholder of any
assets of the Corporation or any Subsidiary having an aggregate fair market
value of $100 million or more; or
(iii) The issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair market value of
$100 million or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any of its Subsidiaries or any other transaction
(whether or not with or into or otherwise involving an interested Stockholder)
which has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of Equity Security (as
hereinafter defined) of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 67% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class (it being understood that
for the purpose of this Article 6, each share of the Voting Stock shall have
the number of votes granted to it pursuant to Article 4 of this certificate of
incorporation). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise.
(b) Definition of "Business Combination". The term "Business
Combination" used in this Article 6 shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of Paragraph A of
this Section 1.
<PAGE> EX-11
2. When the Higher Vote is Note Required. The provisions of Section 1
of this Article 6 shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this certificate of
incorporation, if all of the conditions specified in either of the following
paragraphs A and B are met:
(a) Approval by Disinterested Directors. The Business Combination shall
have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
(b) Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common stock acquired by it (1)
within the two-year period immediately prior to the first public announcement
of the terms of the proposed Business Combination (the "Announcement Date") or
(2) in the transaction in which it became an Interested Stockholder, whichever
is higher; and
(B) the fair market value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (such latter date is referred to in this Article 6 as
the "Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the fair market value as
of the date of the consummation of the business combination of consideration
other than cash to be received per share by holders of shares of any other
class of outstanding Voting Stock shall be at least equal to the highest of
the following (it being intended that the requirements of this paragraph b(ii)
shall be required to be met with respect to every class of outstanding Voting
Stock, whether or not the Interested Stockholder has previously acquired any
shares of a particular class of Voting Stock):
(A) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common stock acquired by it (1)
within the two-year period immediately prior to the Announcement Date or (2)
in the transaction in which it became an Interested Stockholder, whichever is
higher;
(B) (if applicable) the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are entitled in
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation; and
(C) the fair market value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date, whichever is
higher.
<PAGE> EX-12
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in cash or
in the same form as the Interest Stockholder has previously paid for shares of
such class of Voting Stock. If the Interested Stockholder has paid for shares
of any class of Voting Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock previously acquired by it. The
price determined in accordance with paragraphs B(i) and B(ii) of this Section
2 shall be subject to appropriate adjustment in the event of any stock
dividend, stock split, combination of shares or similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (a)
except as approved by a majority of the Disinterested Directors, there shall
have been no failure to declare and pay at the regular date therefore any full
quarterly dividends (whether or not cumulative) on any outstanding stock
having preference over the Common Stock as to dividends or upon liquidation;
(b) there shall have been (1) no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any subdivision of
the Common Stock), except as approved by a majority of the Disinterested
Directors, and (2) an increase in such annual rate of dividends as necessary
to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of the Common Stock,
unless the failure to increase such annual rate is approved by a majority of
the Disinterested Directors; and (c) such Interested Stockholder shall have
not become the beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such Interested Stockholder
becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
3. Certain Definitions. For the purpose of this Article 6:
(a.) A "person" shall mean any individual, firm, Corporation or other entity.
(b.) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of 20% or more
of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the beneficial
<PAGE> EX-13
owner, directly or indirectly, or 20% or more of the voting power of the then
outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(c.) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(A) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(d.) For the purpose of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 3 but shall not include any
other shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding upon exercise of conversion rights, warrants or
options or otherwise.
(e.) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule l2b-2 of the General Rules and Regulations
under the Securities Exchange Act of l934, as in effect on January l, l985.
(f.) "Subsidiary" means any Corporation of which a majority of any class
of Equity Security is owned, directly or indirectly, by the Corporation,
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph b of the Section 3, the term "Subsidiary"
shall mean only a Corporation of which a majority of each class of Equity
Security is owned, directly or indirectly, by the Corporation.
(g.) "Disinterested Director" means any member of the Board of Directors
who is unaffiliated with the Interested Stockholder and was a member of the
Board of Directors prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested Director who is
unaffiliated with the Interested Stockholder and is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then on the
Board of Directors.
(h.) "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30 day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange - Listed Stocks, or, if such stock is not quoted on the Composite
<PAGE> EX-14
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of l934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30 day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board of Directors in good faith; and
(ii) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined by the Board of
Directors in good faith.
(i.) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
paragraphs B(i) and (ii) of Section 2 of this Article 6 shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(j.) "Equity Security" shall have the meaning ascribed to such term in
Section 3(a)(II) of the Securities Exchange Act of 1934, as in effect on
January l, l985.
4. Powers of the Board of Directors. A majority of the Directors shall
have the power and duty to determine for the purposes of this Article 6, on
the basis of information known to them after reasonable inquiry, (a) whether a
person is an Interested Stockholder, (b) the number of shares of Voting Stock
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, (d) whether the assets which are the object of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $l00 million or
more. A majority of the Directors shall have the further power to interpret
all of the terms and provisions of this Article 6.
5. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article 6 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
6. Amendment, Repeal, etc. Notwithstanding any other provisions of this
certificate of incorporation or the By-Laws (and notwithstanding the fact that
a lesser percentage may be specified by law, this certificate of incorporation
or the By-Laws) the affirmative vote of the holders of 67% or more of the
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with this Article 6
or any provision hereof.
ARTICLE 7
1. Prevention of "Greenmail". Any direct or indirect purchase or other
acquisition by the Corporation of any Equity Security (as hereinafter defined)
of any class from any Interested Securityholder (as hereinafter defined) who
has beneficially owned such securities for less than two years prior to the
date of such purchase or any agreement in respect thereof shall, except as
hereinafter expressly provided, require the affirmative vote of the holders of
at least a majority of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), excluding Voting Stock beneficially owned by
<PAGE> EX-15
such Interested Securityholder, voting together as a single class (it being
understood that for the purposes of this Article 7, each share of Voting Stock
shall have the number of votes granted to it pursuant to Article 4 of this
certificate of incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or any agreement with any national
securities exchange, or otherwise, but no such affirmative vote shall be
required with respect to any purchase or other acquisition of securities made
as part of a tender or exchange offer by the Corporation to purchase
securities of the same class made on the same terms to all holders of such
securities and complying with the applicable requirements of the Securities
Exchange Act of l934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations).
2. Certain Definitions. For the purposes of this Article 7:
(a.) A "person" shall mean any individual, firm, Corporation or
other entity.
(b.) "Interested Securityholder" shall mean any person (other than
the Corporation or any Corporation of which a majority of any class of Equity
Security is owned, directly or indirectly, by the Corporation) who or which:
(i) is the beneficial owner, directly or indirectly, of 20% or more
of the class of securities to be acquired; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 20% or more of the class of securities to be
acquired; or
(iii) is an assignee or has otherwise succeeded to any shares of
the class of securities to be acquired which were at any time within the
two-year period immediately prior to the date in question beneficially owned
by an Interested Securityholder, if such assignment or succession shall have
occurred in the course of a transaction or transactions not involving a public
offering with the meaning of the Securities Act of l933.
(c.) A person shall be a "beneficial owner" of any security of any
class of the Corporation:
(i) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly; or
(ii) Which such person or any of its Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) any right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing any security of any class of the Corporation.
<PAGE> EX-16
(d.) For the purposes of determining whether a person is an
Interested Securityholder pursuant to paragraph b of this Section 2, the
relevant class of securities outstanding shall be deemed to comprise all such
securities deemed owned through application of paragraph c of this Section 2,
but shall not include other securities of such class which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(e.) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule l2b-2 of the General Rules and Regulations
under the Securities Exchange Act of l934, as in effect on January l, l985.
(f.) "Equity Security" shall have the meaning ascribed to such term
in Section 3(a)(ll) of the Securities Exchange Act of l934, as in effect on
January l, l985.
ARTICLE 8
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate of incorporation, in the manner now or
hereafter prescribed by statute and this certificate of incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation. Any such amendment, alteration, change or repeal shall be of no
force and effect prior to the expiration of thirty (30) days after the
affirmative vote of the holders of the appropriate majority of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of Directors.
ARTICLE 9
The name and address of each incorporator is as follows:
Name Mailing Address
McKinley C. McAdoo Five Radnor Corporate Center
Suite 500
l00 Matsonford Road
Radnor, Pennsylvania l9087
ARTICLE 10
The Corporation is to have perpetual existence.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a Corporation pursuant to the General Corporation Law of
Delaware does make this certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true and accordingly have
hereunto set my hand and seal this l9th day of August, l986.
________________________(SEAL)
/s/McKinley McAdoo
<PAGE>
<PAGE> EX-17
[EXECUTION COPY]
SIXTH AMENDED AND RESTATED
LOAN AGREEMENT
DATED AS OF AUGUST 30, 1994
BY AND AMONG
AIRGAS, INC.
AND
AIRGAS HOLDINGS, INC.
AS BORROWERS,
THE BANKS NAMED HEREIN,
AND
NATIONSBANK OF NORTH CAROLINA, N.A.,
AS AGENT
<PAGE>
<PAGE> EX-18
Table of Contents
Section Title Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
1.01 Definitions . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms. . . . . . . . . . . . . . . . .15
ARTICLE II REVOLVING LOANS . . . . . . . . . . . . . . . . .15
2.01 Revolving Credit Loans. . . . . . . . . . . . . .15
2.02 (a) Minimum Amounts. . . . . . . . . . . . . . .15
(b) Types of Revolving Credit Loans. . . . . . .16
(c) Notice . . . . . . . . . . . . . . . . . . .16
(d) Limitation on Numbers of
Revolving Credit Loans . . . . . . . . . .16
2.03 Revolving Credit Notes. . . . . . . . . . . . . .17
2.04 Revolving Credit Loan Interest Rates. . . . . . .17
2.05 (a) Commitment Fee . . . . . . . . . . . . . . .18
(b) Reduction of Revolving Credit Loan
Commitments. . . . . . . . . . . . . . . .18
ARTICLE III TERM LOANS. . . . . . . . . . . . . . . . . . . .19
3.01 (a) Term Loans . . . . . . . . . . . . . . . . .19
(b) Types of Term Loans. . . . . . . . . . . . .19
(c) Notice . . . . . . . . . . . . . . . . . . .19
(d) Limitation on Numbers of Term Loans. . . . .20
3.02 Term Notes . . . . . . . . . . . . . . . . . . .20
3.03 Term Loan Interest Rates. . . . . . . . . . . . .20
ARTICLE IV LETTER OF CREDIT TERM LOANS . . . . . . . . . . .21
4.01 (a) Letter of Credit Term Loans. . . . . . . . .21
(b) Types of Letter of Credit Term Loans . . . .21
4.02 Repayment of Letter of Credit Term Loans . . . .22
4.03 Letter of Credit Term Notes . . . . . . . . . . .22
4.04 Letter of Credit Term Loan Interest Rates . . . .22
ARTICLE V LETTERS OF CREDIT . . . . . . . . . . . . . . . .23
5.01 Letters of Credit . . . . . . . . . . . . . . . .23
(a) General Provisions . . . . . . . . . . . . .23
(b) Requests for Letters of Credit . . . . . . .24
(c) Participations of Banks in
Letters of Credit . . . . . . . . . . . . .24
(d) Reimbursement of Drawings. . . . . . . . . .24
(e) Indemnification of LC Agent. . . . . . . . .25
(f) Letter of Credit Fee(s). . . . . . . . . . .26
(g) Sharing of Letter of Credit Fees . . . . . .26
5.02 Additional Costs. . . . . . . . . . . . . . . . .27
5.03 Quarterly Reports Concerning Letters of Credit. .27
5.04 Guarantee Subsidiaries as Account Parties . . . .27
<PAGE> EX-19
ARTICLE VI BANKERS' ACCEPTANCES. . . . . . . . . . . . . . .27
6.01 Bankers' Acceptances. . . . . . . . . . . . . . .27
(a) General Provisions . . . . . . . . . . . . .27
(b) Requirements for Bankers' Acceptances;
Ratable Creation . . . . . . . . . . . . .28
(c) Requests for and Creation of
Bankers' Acceptances . . . . . . . . . . .29
(d) Reimbursement of Advances. . . . . . . . . .29
(e) Ineligible Bankers' Acceptances. . . . . . .30
(f) Records of Bankers' Acceptance Transactions.30
(g) Authorized Signatory . . . . . . . . . . . .30
(h) Guarantee Subsidiaries as Account Parties. .31
ARTICLE VII MONEY MARKET LOANS. . . . . . . . . . . . . . . .31
7.01 Money Market Loans. . . . . . . . . . . . . . . .31
(a) Money Market Loan Requests . . . . . . . . .31
(b) Money Market Quotes. . . . . . . . . . . . .31
(c) Acceptance of Money Market Quotes. . . . . .32
(d) Funding of Money Market Loans. . . . . . . .33
(e) Money Market Notes . . . . . . . . . . . . .33
(f) Limitations on Money Market Loans. . . . . .33
(g) Repayment of Money Market Loans. . . . . . .33
(h) Interest . . . . . . . . . . . . . . . . . .34
(i) Limitation on Money Market Loans . . . . . .34
(j) Money Market Loan Requests through Agent . .34
ARTICLE VIII ADDITIONAL PROVISIONS REGARDING
REVOLVING CREDIT LOANS, TERM LOANS,
LETTER OF CREDIT TERM LOANS,
MONEY MARKET LOANS AND BANKERS' ACCEPTANCES . . .34
8.01 Additional Interest Rate Provisions . . . . . . .34
(a) Default Rate . . . . . . . . . . . . . . . .34
(b) LIBOR Base Rate Unascertainable. . . . . . .35
(c) CD Base Rate Unascertainable . . . . . . . .35
8.02 Conversion and Continuation of Loans. . . . . . .36
8.03 Prepayments . . . . . . . . . . . . . . . . . . .38
8.04 Additional Costs. . . . . . . . . . . . . . . . .39
8.05 Changes in Laws or Regulations. . . . . . . . . .41
8.06 Compensations . . . . . . . . . . . . . . . . . .42
8.07 Payments and Prepayments. . . . . . . . . . . . .42
8.08 Capital Adequacy Protection . . . . . . . . . . .44
8.09 HLT Classification. . . . . . . . . . . . . . . .44
8.10 Limitation of Liability of Holdings . . . . . . .45
ARTICLE IX CONDITIONS PRECEDENT AS OF CLOSING DATE . . . . .46
9.01 Conditions Precedent to Initial Loans . . . . . .46
ARTICLE X CONDITIONS OF LENDING . . . . . . . . . . . . . .47
10.01 Conditions of Lending . . . . . . . . . . . . . .47
10.02 Revolving Credit Loan Commitment
Limitation; Reaffirmation . . . . . . . . . . .47
<PAGE> EX-20
ARTICLE XI REPRESENTATIONS AND WARRANTIES. . . . . . . . . .48
11.01 (a) Incorporation. . . . . . . . . . . . . . . .48
(b) Power and Authority
to Own Properties and Assets . . . . . . .48
(c) Power and Authority to Execute,
Deliver and Perform the Loan Documents . .48
(d) Loan Documents Valid and Binding
Obligations. . . . . . . . . . . . . . . .48
(e) Execution, Delivery and Performance. . . . .48
(f) Title to Properties. . . . . . . . . . . . .49
(g) Subsidiaries . . . . . . . . . . . . . . . .49
(h) Interests in Other Person. . . . . . . . . .49
(i) Audited Balance Sheet. . . . . . . . . . . .49
(j) Litigation . . . . . . . . . . . . . . . . .49
(k) Compliance with Laws . . . . . . . . . . . .50
(l) Hazardous Materials. . . . . . . . . . . . .50
(m) Margin Stock; Regs G, U, T and X . . . . . .50
(n) Patents, Licenses and Trademarks . . . . . .50
(o) MEPP . . . . . . . . . . . . . . . . . . . .51
(p) "Investment" or "Holding" Company. . . . . .51
(q) (i) No Judgments, Orders, or Decrees. . . .51
(ii) No Defaults . . . . . . . . . . . . . .51
(r) Taxes. . . . . . . . . . . . . . . . . . . .51
(s) ERISA. . . . . . . . . . . . . . . . . . . .51
(t) Material Misstatement. . . . . . . . . . . .52
(u) No Governmental Approvals. . . . . . . . . .52
ARTICLE XII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . .52
12.01 Affirmative Covenants . . . . . . . . . . . . . .52
(a) (i) Annual Audited Financial Reports . . .52
(ii) Annual Projections. . . . . . . . . . .52
(b) Quarterly Financial Reports. . . . . . . . 52
(c) Financial Information Concerning Certain
Acquired Companies. . . . . . . . . . . .53
(d) Officer's Certification. . . . . . . . . . .53
(e) Stockholder and SEC Reports. . . . . . . . .53
(f) Other Information. . . . . . . . . . . . . .54
(g) Primary Depository . . . . . . . . . . . . .54
(h) Fiscal Year . . . . . . . . . . . . . . . .54
(i) Use of Loan Proceeds . . . . . . . . . . . .54
(j) Maintenance of Properties . . . . . . . . .54
(k) Maintenance of Corporate Existence . . . . .54
(l) Compliance with Laws . . . . . . . . . . . .54
(m) Hazardous Materials. . . . . . . . . . . . .54
(n) Indemnification of Banks.. . . . . . . . . .55
(o) Insurance. . . . . . . . . . . . . . . . . .55
(p) Patents. . . . . . . . . . . . . . . . . . .55
(q) Books of Records and Accounts. . . . . . . .55
(r) Inspection . . . . . . . . . . . . . . . . .56
(s) Certified Public Accountants . . . . . . . .56
(t) Notice of Event of Default . . . . . . . . .56
(u) Agent's Fee. . . . . . . . . . . . . . . . .56
(v) Other Notices. . . . . . . . . . . . . . . .56
(w) ERISA. . . . . . . . . . . . . . . . . . . .56
(x) Further Assurances . . . . . . . . . . . . .57
(y) New Subsidiaries . . . . . . . . . . . . . .57
<PAGE> EX-21
ARTICLE XIII NEGATIVE COVENANTS. . . . . . . . . . . . . . . .58
13.01 Negative Covenants. . . . . . . . . . . . . . . .58
(a) Indebtedness . . . . . . . . . . . . . . . .58
(b) Liens. . . . . . . . . . . . . . . . . . . .59
(c) Acquisitions, Consolidations, Mergers. . . .60
(d) Asset Dispositions . . . . . . . . . . . . .60
(e) Sale/Leaseback Transactions. . . . . . . . .61
(f) Dissolution, Liquidation or Termination. . .61
(g) Guarantees . . . . . . . . . . . . . . . . .61
(h) Investments. . . . . . . . . . . . . . . . .61
(i) Accounts Receivable. . . . . . . . . . . . .63
(j) Insider Transactions . . . . . . . . . . . .63
(k) Loans and Advances . . . . . . . . . . . . .64
(l) Dividends. . . . . . . . . . . . . . . . . .64
(m) Partnerships, Joint Ventures . . . . . . . .64
(n) Line of Business . . . . . . . . . . . . . .64
(o) Accounting Practices . . . . . . . . . . . .65
(p) Leverage Ratio . . . . . . . . . . . . . . .65
(q) Current Ratio. . . . . . . . . . . . . . . .65
(r) Fixed Charge Coverage Ratio. . . . . . . . .65
(s) Book Net Worth . . . . . . . . . . . . . . .65
(t) Payment of Subordinated Debt . . . . . . . .65
(u) Amendment of Senior Subordinated
Note Purchase Agreement. . . . . . . . . . .65
ARTICLE XIIIA INCORPORATION OF SUBORDINATED DEBT COVENANTS. . .66
ARTICLE XIV EVENTS OF DEFAULT AND ACCELERATION. . . . . . . .66
14.01 Events of Default and Acceleration. . . . . . . .66
ARTICLE XV THE AGENT . . . . . . . . . . . . . . . . . . . .69
15.01 Appointment and Authorization . . . . . . . . . .69
15.02 Reliance..... . . . . . . . . . . . . . . . . . .69
15.03 Responsibilities. . . . . . . . . . . . . . . . .69
15.04 Reliance Upon Communications. . . . . . . . . . .70
15.05 Event of Default. . . . . . . . . . . . . . . . .70
15.06 No Representations . . . . . . . . . . . . . . .70
15.07 Indemnification . . . . . . . . . . . . . . . . .71
15.08 Dealings with Credit Parties. . . . . . . . . . .71
15.09 Resignation . . . . . . . . . . . . . . . . . . .72
<PAGE> EX-22
ARTICLE XVI MISCELLANEOUS . . . . . . . . . . . . . . . . . .72
16.01 Notices . . . . . . . . . . . . . . . . . . . . .72
16.02 Waiver. . . . . . . . . . . . . . . . . . . . . .74
16.03 Survival. . . . . . . . . . . . . . . . . . . . .74
16.04 Costs . . . . . . . . . . . . . . . . . . . . . .74
16.05 Amendments. . . . . . . . . . . . . . . . . . . .75
16.06 Year . . . . . . . . . . . . . . . . . . . . . .76
16.07 Set-Off . . . . . . . . . . . . . . . . . . . . .76
16.08 Payment on Business Day . . . . . . . . . . . . .76
16.09 Counterparts . . . . . . . . . . . . . . . . . .76
16.10 Assignment . . . . . . . . . . . . . . . . . . .76
16.11 Term . . . . . . . . . . . . . . . . . . . . . .77
16.12 Joint and Several Obligations of Borrowers. . . .77
16.13 Governing Law . . . . . . . . . . . . . . . . . .77
16.14 Priority of Loans and Money Market Loans. . . . .78
16.15 Conversions to U.S. Currency. . . . . . . . . . .78
16.16 Return of Old Notes . . . . . . . . . . . . . . .78
16.17 Dealings by Banks With Credit Parties . . . . . .78
16.18 No Deduction for Foreign Taxes. . . . . . . . . .78
<PAGE>
<PAGE> EX-23
Exhibits
Exhibit A Banks' Commitment Levels
Exhibit B Guaranty Agreement
Exhibit C Form of Guaranty Joinder Agreement
Exhibit D Contingent Liability
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Term Note
Exhibit G Form of Letter of Credit Term Note
Exhibit H Form of Request for Bankers' Acceptances
Exhibit I Form of Money Market Note
Exhibit J Form of Legal Opinion
Exhibit K Liens
Exhibit L Airgas Subsidiaries
Exhibit M Interest in Other Persons
Exhibit N Litigation
Exhibit O Form of Officer's Compliance Certificate
Exhibit P Insurance Coverage
Exhibit Q Existing Indebtedness
<PAGE>
<PAGE> EX-24
Schedules
Schedule 1 $25,000,000 Senior Subordinated Note Purchase
Agreement
Schedule 2 $30,000,000 Senior Subordinated Note Purchase
Agreement
Schedule 3 Existing Letters of Credit
Schedule 4 Loan Documents for $30,000,000 NationsBank
Revolving Line of Credit
<PAGE>
<PAGE> EX-25
SIXTH AMENDED AND RESTATED
LOAN AGREEMENT
THIS SIXTH AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 30,
1994 (the "Loan Agreement"), amends and restates that certain Fifth Amended
and Restated Loan Agreement dated as of October 13, 1993 (as amended from time
to time, the "Prior Loan Agreement") by and among Airgas, Inc. and certain of
its Subsidiaries and the Banks hereinafter referred to and defined and
NationsBank of North Carolina, N.A., as agent for such Banks, and is made by
and among
AIRGAS, INC., a Delaware corporation ("Airgas"); and
AIRGAS HOLDINGS, INC., a Delaware corporation ("Holdings" - Airgas and
Holdings may be referred to individually herein as a "Borrower" and
collectively as the "Borrowers");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association
("NationsBank");
THE BANK OF NEW YORK, a New York corporation ("BNY");
FIRST FIDELITY BANK, N.A., a national banking association ("Fidelity");
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, NA, a
national banking association ("PNB");
CONTINENTAL BANK, an Illinois state bank ("Continental");
MERIDIAN BANK, a Pennsylvania state bank ("Meridian");
NBD BANK, N.A., a national banking association ("NBD");
CIBC INC. , a Delaware corporation ("CIBC"); and
PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC" -
hereinafter, NationsBank, BNY, Fidelity, PNB, Continental, Meridian, NBD, CIBC
and PNC may be referred to individually as a "Bank" and collectively as the
"Banks"); and
NATIONSBANK NATIONAL BANK OF NORTH CAROLINA, N.A., a national banking
association (in its capacity as agent for the Banks, hereinafter referred to
in such capacity as the "Agent").
RECITALS:
A. The Borrowers have requested that the Banks provide the Borrowers
with a $250,000,000.00 credit facility for the purposes of (i) refinancing
certain existing indebtedness of Airgas and certain of its Subsidiaries to the
Banks, (ii) financing the acquisition of new Subsidiaries, (iii) financing
other investments permitted under this Loan Agreement and (iv) satisfying
capital expenditure, working capital and letter of credit needs of the
Borrowers and the Guarantee Subsidiaries.
<PAGE> EX-26
B. The Banks have agreed to provide the requested credit facility to
the Borrowers on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Borrowers, the Agent and the Banks agree as follows:
ARTICLE I
Definitions
1.01 For the purposes hereof:
"Adjusted Net Worth" means, as of any date of determination thereof, the
excess of (i) the amount of the "present fair saleable value" of the assets of
Holdings as of such date of determination, over (ii) the amount of all
"liabilities, contingent or otherwise", of Holdings as of such date of
determination, as such quoted terms are determined in accordance with
applicable Federal and state laws governing determinations of the insolvency
of debtors. In determining the Adjusted Net Worth of Holdings for purposes of
calculating Holdings' Maximum Obligated Amount in respect of any Extension of
Credit, the liabilities of Holdings to be used in such determination pursuant
to clause (ii) of the preceding sentence shall in any event include the
liabilities of Holdings hereunder in respect of all Extensions of Credit other
than the Extension of Credit in respect of which such calculation is being
made;
"Affiliate", with respect to any Person, means any other Person
(i) which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
first Person; or
(ii) which beneficially owns or holds 5% or more of any class of the
Voting Stock (or in the case of such first Person which is not a
corporation, 5% or more of the equity interest) of such first Person; or
(iii) of which 5% or more of the Voting Stock (or in the case of a
Person which is not a corporation, 5% or more of the equity interest) is
beneficially owned or held by such first Person;
"Applicable Margin" means, at any time, the applicable margin
corresponding to the ratios described below in effect as of the most recent
Rate Determination Date (as hereinafter defined):
<PAGE> EX-27
A. Revolving Credit Loans and Bankers' Acceptances
Applicable
Margin Applicable Applicable
for Margin Margin
Pricing Funded Debt Fixed Charge Eurodollar for for Bankers'
Level Coverage Ratio Coverage Ratio Loans CD Loans Acceptances
_______ ______________ ______________ _________ ________ ___________
V Equal to or Less than 1.50:1.00 1% 1 1/8% 1%
greater than
3.50:1.00
IV Less than Equal to or greater
3.50:1.00 but than 1.50:1.00 but
greater than less than 1.60:1.00 7/8% 1% 7/8%
or equal to
3.00:1.00
III Less than Equal to or greater
3.00:1.00 but than 1.60:1.00 but
greater than less than 2.00:1.00 3/4% 7/8% 3/4%
or equal to
2.50:1.00
II Less than Equal to or greater
2.50:1.00 but than 2.00:1.00 but
greater than less than 2.50:1.00 5/8% 3/4% 5/8%
or equal to
2.00:1.00
I Less than Equal to or greater
2.00:1.00 than 2.50:1.00 1/2% 5/8% 1/2%
B. Term Loans and Letter of Credit Term Loans
Applicable Applicable
Margin Margin
Pricing Funded Debt Fixed Charge for for
Level Coverage Ratio Coverage Ratio Eurodollar Loans CD Loans
______ ______________ _______________ ________________ _________
V Equal to or Less than 1.50:1.00 1 1/2% 1 5/8%
greater than
3.50:1.00
IV Less than Equal to or greater
3.50:1.00 but than 1.50:1.00 but
greater than less than 1.60:1.00 1 3/8% 1 1/2%
or equal to
3.00:1.00
<PAGE> EX-28
III Less than Equal to or greater
3.00:1.00 but than 1.60:1.00 but
greater than less than 2.00:1.00 1 1/4% 1 3/8%
or equal to
2.50:1.00
II Less than Equal to or greater
2.50:1.00 but than 2.00:1.00 but
greater than less than 2.50:1.00 1 1/8% 1 1/4%
or equal to
2.00:1.00
I Less than Equal to or greater
2.00:1:00 than 2.50:1.00 1% 1 1/8%
In the event that, as of any Rate Determination Date, the Leverage Ratio
and the Fixed Charge Coverage Ratio then applicable are at different Pricing
Levels, then the Applicable Margins in the higher of the two Pricing Levels
shall apply.
Determination of the appropriate Applicable Margin based on the Funded
Debt Coverage Ratio and the Fixed Charge Coverage Ratio shall be made as of
the Closing Date and as of each March 31, June 30, September 30 and December
31 thereafter (each such date a "Rate Determination Date"). The Funded Debt
Coverage Ratio and the Fixed Charge Coverage Ratio in effect as of a Rate
Determination Date (as calculated by the chief financial officer of Airgas and
set forth in the related statement of such chief financial officer delivered
to the Banks in accordance with Section 12.01(d) hereof) shall establish the
Applicable Margins for the second calendar quarter immediately following such
Rate Determination Date. A change in the Applicable Margins shall be
effective as of the first day of the second calendar quarter after the Rate
Determination Date giving rise to such change and shall be applicable
thereafter until the effective date of any subsequent change. The Agent shall
(i) verify the calculations of the Funded Debt Coverage Ratio and the Fixed
Charge Coverage Ratio provided by the chief financial officer of Airgas as
described above for each Rate Determination Date and (ii) determine the
Applicable Margins as of each Rate Determination Date. The Agent shall
promptly notify the Borrowers and the Banks of the Applicable Margins so
determined. Such determinations by the Agent of the Applicable Margins shall
be conclusive absent manifest error. The Applicable Margins as of the Closing
Date are 3/4% for Revolving Credit Loans which are Eurodollar Loans, 7/8%
for Revolving Credit Loans which are CD Loans and 3/4% for Bankers'
Acceptances.
"BA Discount Rate" means, with respect to any Bankers' Acceptance, the
rate per annum (computed on the basis of a year of 360 days) equal to the sum
of (i) the rate determined by the Agent to be the average (rounded upward to
the nearest whole multiple of 1/100 of 1%) of the current quoted discount
rates for bankers' acceptances of each of the Reference Banks on the date of
creation of such Bankers' Acceptance for bankers' acceptances in an amount
substantially equal to the face amount of the related Bankers' Acceptance to
be created by each such Reference Banks and having the same maturity as such
Bankers' Acceptance plus (ii) the Applicable Margin for Bankers' Acceptances
at such time determined in accordance with the definition of "Applicable
Margin" set forth in this Section 1.01;
<PAGE> EX-29
"BA Documents" means, with respect to any Bankers' Acceptance, such
documents and agreements as the applicable accepting Bank reasonably may
require in connection with the creation of such Bankers' Acceptance;
"BA Outstandings" means, at any time with respect to the Bankers'
Acceptances created by any Bank, the sum of (i) the maximum aggregate amount
which is, or at any time thereafter may become, payable by such Bank under all
Bankers' Acceptances of such Bank then outstanding, plus (ii) the aggregate BA
Reimbursement Obligations of such Bank at such time;
"BA Reimbursement Obligation" means, at any time with respect to any
Bankers' Acceptance of any Bank, any unpaid obligation of the Borrowers to
reimburse such Bank for amounts theretofore advanced by such Bank under such
Bankers' Acceptance;
"Bankers' Acceptance" means a draft drawn by the Borrowers (or by either
of them, or, as contemplated by Section 6.01(h) hereof, by a Guarantee
Subsidiary) on, and accepted and discounted by, a Bank pursuant to Section
6.01 hereof;
"Bankers' Acceptance Commitment", for each Bank, means the commitment of
such Bank to create Bankers' Acceptances in a maximum face amount equal to the
amount set forth beside the name of such Bank on Exhibit A hereto;
"Book Net Worth" means, at any time, consolidated net stockholders'
equity of Airgas and its Subsidiaries determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis excluding any
Capital Stock to which a Redemption Obligation relates so long as such
Redemption Obligation is outstanding;
"Borrowers' Obligations" means, without duplication, the obligations of
the Borrowers to the Banks, the Agent and the LC Agent (including the
obligations to pay principal of and interest on the Loans, the Money Market
Loans, the LC Reimbursement Obligations and the BA Reimbursement Obligations
and to pay all fees and other amounts payable by the Borrowers) hereunder and
under the Notes and the Money Market Notes;
"Business Day" means any day not a Saturday, Sunday or legal holiday on
which each of the Banks is open for business; provided, however, that, when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London Interbank Market;
"Canadian Lender" means a bank or other financial institution organized
and existing under the laws of Canada or any province or other political
subdivision thereof, or any subsidiary of such a Bank or other financial
institution;
"Canadian Subsidiary" means a direct or indirect Subsidiary of Airgas
which is organized and existing under the laws of Canada or any province or
other political subdivision thereof;
"Capital Base" means, at any time, the sum of (i) Funded Debt at such
time, plus (ii) Book Net Worth at such time;
"Capital Stock" means common stock and any class or series of preferred
stock;
<PAGE> EX-30
"CD Base Rate" means the rate, on the day of borrowing, bid by New York
certificate of deposit dealers of recognized standing for the purchase of
NationsBank's negotiable certificates of deposit at face value in the
requested amount and maturity, such rate being adjusted for the cost of (i)
reserve requirements as prescribed by the Board of Governors of the Federal
Reserve System and (ii) insurance premiums on certificates of deposit paid to
the Federal Deposit Insurance Corporation;
"CD Letter of Credit Term Loan" means a Letter of Credit Term Loan that
is a CD Loan;
"CD Loan" means a Loan bearing interest based on the CD Base Rate in
accordance with the provisions of Articles II, III, IV and VIII hereof;
"CD Revolving Credit Loan" means a Revolving Credit Loan that is a CD
Loan;
"CD Term Loan" means a Term Loan that is a CD Loan;
"Closing Date" means the date as of which this Loan Agreement is executed
by the Borrowers, the Banks and the Agent and all of the conditions precedent
set forth in Article IX hereof have been satisfied;
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a) hereof;
"Consistent Basis", in reference to the application of Generally Accepted
Accounting Principles, means that the accounting principles observed in the
period referred to are comparable in all material respects to those applied in
the most recent preceding period;
"Controlled Group" means the group of trades or businesses under common
control as defined in Section 414(c) of the Internal Revenue Code of 1986 (as
the same may be amended from time to time) and the applicable regulations
thereunder, of which Airgas or any of its Subsidiaries is a part or may become
a part;
"Credit Party" means any of the Borrowers and the Guarantee Subsidiaries;
"Current Assets" means, at any time, all items which, according to
Generally Accepted Accounting Principles, would be classified as current
assets on a consolidated balance sheet of Airgas and its Subsidiaries;
"Current Liabilities" means, at any time, all items which, according to
Generally Accepted Accounting Principles, would be classified as current
liabilities on a consolidated balance sheet of Airgas and its Subsidiaries;
"Current Maturities" means, at any time, (i) current maturities of Long
Term Debt as of such time and (ii) short term notes payable by Airgas or any
of its Subsidiaries as of such time, all as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
"Current Ratio" means, at any time such calculation is made, the ratio
obtained by dividing Current Assets by Current Liabilities;
<PAGE> EX-31
"EBITDA" means, with respect to the twelve-month period ending on the
date such calculation is made, the sum of (i) Net Income for such period, plus
(ii) an amount which, in the determination of Net Income for such period, has
been deducted for (A) Interest Expense, (B) total Federal, state, local and
foreign income and similar taxes of Airgas and its Subsidiaries on a
consolidated basis and (C) depreciation and amortization expense of Airgas and
its Subsidiaries on a consolidated basis, all as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
"ERISA" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Eurodollar Letter of Credit Term Loan" means a Letter of Credit Term
Loan that is a Eurodollar Loan;
"Eurodollar Loan" means a Loan bearing interest based on the LIBOR Base
Rate in accordance with the provisions of Articles II, III, IV and VIII
hereof;
"Eurodollar Revolving Credit Loan" means a Revolving Credit Loan that is
a Eurodollar Loan;
"Eurodollar Term Loan" means a Term Loan that is a Eurodollar Loan;
"Event of Default" shall have the meaning given to said term in Section
14.01 hereof;
"Executive Officer" means the chief executive officer, chief operating
officer or chief financial officer of the Person in question;
"Existing Letters of Credit" means the letters of credit set forth on
Schedule 3 attached hereto;
"Extension of Credit" means any Loan or Money Market Loan advanced
hereunder, any Letter of Credit issued hereunder (and obligations to make
advances thereunder) and any Bankers' Acceptance created hereunder (and
obligations to make advances thereunder);
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions, with members of the Federal
Reserve System only, arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Agent);
"Fixed Charge Coverage Ratio" means, with respect to the twelve-month
period ending on the date such calculation is made, the ratio of (i) Operating
Income for such period to (ii) Fixed Charges for such period;
"Fixed Charges" means, for any period, the sum of (i) Interest Expense
for such period, plus (ii) Current Maturities as of the first day of such
period;
"Funded Debt" means, at any time, the sum, without duplication, of (i)
the aggregate principal balance of all outstanding Loans, Money Market Loans
and BA Outstandings at such time, plus (ii) the aggregate amount of Current
Maturities at such time, plus (iii) the aggregate principal balance of all
Long Term Debt at such time;
<PAGE> EX-32
"Funded Debt Coverage Ratio" means, at any time such calculation as is
made, the ratio of (i) Funded Debt at such time to (ii) EBITDA for the
twelve-month period ending on the date of such calculation;
"Generally Accepted Accounting Principles" means those principles of
accounting set forth in pronouncements of the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants, as such
principles are from time to time supplemented and amended;
"Guarantee Subsidiary" means each of the direct and indirect Subsidiaries
of Airgas which is a party to the Guaranty Agreement, including each direct or
indirect Subsidiary of Airgas which becomes a party to the Guaranty Agreement
pursuant to a Guaranty Joinder Agreement;
"Guaranty Agreement" means the Guaranty Agreement in the form of Exhibit
B attached hereto;
"Guaranty Joinder Agreement" means a Guaranty Joinder Agreement
substantially in the form of Exhibit C attached hereto;
"Holdings' Maximum Obligated Amount" means, as of any date of
determination thereof, the sum of (i) with respect to each Extension of Credit
(or portion thereof) which is used (or the proceeds of which are used) to make
a Valuable Transfer to Holdings, the outstanting amount of such Extension of
Credit (or such portion thereof) as of such date, plus (ii) with respect to
each Extension of Credit (or portion thereof) which is not used (or the
proceeds of which are not used) to make a Valuable Transfer to Holdings, the
lesser of (a) the outstanding amount of such Extension of Credit (or such
portion thereof) as of such date of determination or (b) the greater of (1)
95% of the Adjusted Net Worth of Holdings at the time of such Extension of
Credit or (2) 95% of the Adjusted Net Worth of Holdings as of such date;
"Interest Expense" means, for any period, consolidated interest expense
of Airgas and its Subsidiaries for such period, as determined in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis;
"Interest Payment Date" means, (i) as to any CD Loan having an Interest
Period of 30, 60 or 90 days, any Eurodollar Loan having an Interest Period of
1, 2 or 3 months or any Money Market Loan, the last day of the applicable
Interest Period, and (ii) as to any CD Loan having an Interest Period longer
than 90 days or any Eurodollar Loan having an Interest Period longer than 3
months, the last day of June, September, December and March in each year and
the last day of the applicable Interest Period and (iii) as to any Prime Loan,
the last day of June, September, December and March in each year. If any
Interest Payment Date falls on a day which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business Day
(unless, in case of a Eurodollar Loan, the same would fall in a succeeding
month, in which case such Interest Payment Date shall be deemed to be the
first preceding Business Day);
"Interest Period" means, (i) as to any CD Loan, a period of 30, 60, 90 or
180 days' duration or, unless unavailable pursuant to the terms of Section
8.01(c) hereof, of 270 or 360 days, as the Borrowers may elect, commencing on
the date such CD Loan shall have been made or immediately upon expiration of
the Interest Period of the preceding CD Loan; (ii) as to any Eurodollar Loan,
the period commencing on the date of such Eurodollar Loan and ending on the
numerically corresponding day (or if there is no corresponding day, the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter or, unless
<PAGE> EX-33
unavailable pursuant to the terms of Section 8.01(b) hereof, in the calendar
month that is 9 or 12 months thereafter, as the Borrowers may elect; or (iii)
as to any Money Market Loan, such period as a Bank shall offer and the
Borrowers may select, in any event not to be less than 1 nor more than 90
days; provided, however, that (A) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, with respect to Eurodollar Loans,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
(B) no Interest Period with respect to a Money Market Loan or to a Revolving
Credit Loan constituting a CD Loan or a Eurodollar Loan shall end later than
the Termination Date and no Interest Period with respect to a Term Loan or a
Letter of Credit Term Loan constituting a CD Loan or a Eurodollar Loan shall
end later than the Maturity Date; and (C) with respect to the Term Loans and
Letter of Credit Term Loans, no Interest Period may be selected for a CD Loan
or a Eurodollar Loan comprising such Term Loan or Letter of Credit Term Loan
or any portion thereof which expires later than the next date for payment of
an installment of principal unless either that portion of the Term Loan or
Letter of Credit Term Loan comprised of a Prime Loan is at least equal to such
installment or the last day of an Interest Period for a CD Loan or a
Eurodollar Loan occurs on or prior to such installment payment date and such
Loan or Loans are in an amount which, when added to the Prime Loan portion, is
at least equal to such installment at the due date thereof;
"Jackson" means Jackson Products, Inc., a former Delaware corporation and
Subsidiary of Airgas;
"LC Agent" means the Agent; provided, however, that with respect to each
Existing Letter of Credit, the term "LC Agent" means the Bank which is the
issuer of such Letter of Credit;
"LC Documents" means, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered thereunder, any
application therefor, and any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations;
"LC Outstandings" means, at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
all Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate LC Reimbursement Obligations at such time;
"LC Reimbursement Obligations" means, at any time with respect to any
Letter of Credit, any unpaid obligation of the Borrowers to reimburse the LC
Agent for amounts theretofore paid by the LC Agent pursuant to a drawing under
such Letter of Credit;
"Letter of Credit" means (i) any letter of credit issued by the LC Agent
for the account of a Borrower (or, as contemplated by Section 5.04 hereof, a
Guarantee Subsidiary) in accordance with the terms of Section 5.01 hereof and
(ii) any Existing Letter of Credit;
"Letter of Credit Term Loan" means a loan or loans made pursuant to
Section 4.01 hereof;
<PAGE> EX-34
"Letter of Credit Term Note" or "Letter of Credit Term Notes" means a
promissory note or promissory notes, as the case may be, of the Borrowers
executed and delivered as provided in Section 4.03 hereof;
"Leverage Ratio" means, at any time such calculation is made, the ratio
of (i) Funded Debt at such time to (ii) the Capital Base at such time;
"LIBOR Base Rate" means the rate at which deposits in the requested
aggregate amount and maturity are offered to NationsBank by prime banks in the
London Interbank Market as of 11:00 a.m. London time, on the second Business
Day prior to the applicable Interest Period, such rate being adjusted for the
cost of reserve requirements as prescribed by the Board of Governors of the
Federal Reserve System;
"Loan" or "Loans" means any Revolving Credit Loans, Term Loans or Letter
of Credit Term Loans;
"Loan Documents" means this Loan Agreement, the Notes, the Money Market
Notes and the Guaranty Agreement (together with any Guaranty Joinder
Agreement);
"Long Term Debt" means, at any time, all items which, in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis, would
be classified as long term debt (including Subordinated Debt, purchase money
indebtedness, indebtedness permitted under Section 13.01(a)(v) hereof, and
capitalized leases) on a consolidated balance sheet of Airgas and its
Subsidiaries;
"Majority Banks" means, at any time, (i) the holders of at least 67% of
the sum of (A) the aggregate unpaid principal amount of the Notes at such
time, plus (B) the LC Outstandings at such time, plus (C) the BA Outstandings
at such time, or (ii) if no amounts are outstanding under any of the Notes and
there are no LC Outstandings or BA Outstandings, Banks having at least 67% of
the aggregate amount of the Revolving Credit Loan Commitments at such time, or
(iii) if an Event of Default shall have occurred and be continuing, the
holders (in any event not to be less than five (5) of the Banks) of at least
67% of the sum of (A) the aggregate unpaid principal amount of the Notes at
such time, plus (B) the aggregate unpaid principal amount of the Money Market
Notes at such time, plus (C) the LC Outstandings at such time, plus (D) the BA
Outstandings at such time;
"Material Plan" shall have the meaning given to said term in Section
14.01(i) hereof;
"Maturity Date" means a date five (5) years after the Termination Date
(as the Termination Date may be extended from time to time in accordance with
the terms hereof);
"Money Market Loan" means a loan made pursuant to Section 7.01 hereof;
"Money Market Note" or "Money Market Notes" means a promissory note or
promissory notes, as the case may be, of the Borrowers, executed and delivered
as provided in Section 7.01(e) hereof;
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 7.01(b) hereof;
<PAGE> EX-35
"Money Market Rate" means that fixed rate of interest equal to the rate
quoted for such amounts and for such time periods specified by a Bank to the
Borrowers upon a request for a Money Market Quote pursuant to Section 7.01(b)
hereof;
"Multiemployer Plan" means an employee pension benefit plan within the
meaning of Section 3(37) of ERISA to which a member of the Controlled Group is
making, or accruing an obligation to make, contributions or has within the
preceding 5 plan years made contributions, including for these purposes any
Person which ceased to be a member of the Controlled Group during such 5 year
period;
"Net Income" means, for any period, net income after taxes of Airgas and
its Subsidiaries on a consolidated basis for such period, as determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Note" or "Notes" means any Revolving Credit Note or Notes, Letter of
Credit Term Note or Notes or Term Note or Notes, as the case may be, of the
Borrowers, executed and delivered under this Loan Agreement;
"Operating Income" means, for any period, the sum of (i) the amount by
which total operating revenues exceed total operating expenses for such period
as determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis and as reported in the related consolidated
financial statements for such period of Airgas and its Subsidiaries described
in Sections 12.01(a)(i) and (b) hereof, plus (ii) consolidated cash income of
Airgas and its Subsidiaries for such period from investments in partnerships,
joint venturers or similar investments permitted under Section 13.01(m)
hereof, plus (iii) consolidated depreciation and amortization expense of
Airgas and its Subsidiaries for such period, minus (iv) consolidated capital
expenditures of Airgas and its Subsidiaries for such period other than capital
expenditures related to (A) an acquisition permitted under Section
13.01(h)(iv) or (vi) hereof and (B) purchases of property and/or equipment at
the time of acquisition leased to any acquired company as permitted under
Section 13.01(h)(v) hereof, all as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"PBGC" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government or
agency or political subdivision thereof;
"Plan" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Prime Letter of Credit Term Loan" means a Letter of Credit Term Loan
that is a Prime Loan;
"Prime Loan" means a Loan bearing interest based on the Prime Rate in
accordance with the provisions of Articles II, III, IV and VIII hereof;
"Prime Rate" means the rate of interest per annum as announced publicly
in Charlotte, North Carolina by NationsBank as its Prime Rate in effect from
time to time, which is not necessarily the best or lowest rate of interest
offered by NationsBank to its customers;
<PAGE> EX-36
"Prime Revolving Credit Loan" means a Revolving Credit Loan that is a
Prime Loan;
"Prime Term Loan" means a Term Loan that is a Prime Loan;
"Redemption Obligation" means (i) the contingent liability of Airgas or
any of its Subsidiaries with respect to cash redemption obligations relating
to Capital Stock issued by Airgas or any of its Subsidiaries to any officer,
director, shareholder or other principal of any Subsidiary created or acquired
after the Closing Date and (ii) the contingent liability described on Exhibit
D attached hereto;
"Reference Banks" means NationsBank, Continental and Fidelity;
"REIT" shall have the meaning given to said term in Section 13.01(d)(ii)
hereof;
"Reportable Event" shall have the meaning given to said term in Section
12.01(w) hereof;
"Revolving Credit Loan" means a loan made pursuant to Sections 2.01 and
2.02 hereof;
"Revolving Credit Loan Commitment", for each Bank, means the commitment
of such Bank to make Revolving Credit Loans in a maximum principal amount
equal to the amount set forth beside the name of such Bank on Exhibit A
hereto;
"Revolving Credit Note" or "Revolving Credit Notes" or "Revolving Notes"
shall mean a promissory note or promissory notes, as the case may be, of the
Borrowers, executed and delivered as provided in Section 2.03 hereof;
"Sale/Leaseback Transaction" shall have the meaning given to such term in
Section 13.01(e) hereof;
"Senior Subordinated Note Purchase Agreements" means a collective
reference to (i) the agreement, as amended, in the form attached hereto as
Schedule 1 whereby Airgas has issued $25,000,000.00 of its 11.375% senior
subordinated notes due June 1, 1997 and (ii) the agreement, as amended, in the
form attached hereto as Schedule 2 whereby Airgas has issued $30,000,000.00 of
its 11.375% senior subordinated notes due August 1, 1998;
"Subordinated Debt" means (i) the indebtedness of up to $55,000,000.00
incurred by Airgas pursuant to the terms of the Senior Subordinated Note
Purchase Agreements, the repayment of which is subordinated to the repayment
of the indebtedness of Airgas to the Banks hereunder on terms described in the
Senior Subordinated Note Purchase Agreements, and (ii) additional subordinated
indebtedness incurred by Airgas provided that (A) no Event of Default
specified in Article XIV hereof, nor any event which upon notice or lapse of
time or both, would constitute such an Event of Default, exists immediately
prior to or would exist immediately after such additional subordinated
indebtedness is incurred and (B) all of the terms and conditions of such
additional subordinated indebtedness (including the terms relating to the
subordination of such indebtedness to the indebtedness of Airgas hereunder)
are consented to by the Majority Banks prior to the time such indebtedness is
incurred; provided, however, the aggregate outstanding principal balance of
all indebtedness permitted to be incurred pursuant to subsections (i) and (ii)
of this definition shall not exceed $105,000,000.00 at any one time;
<PAGE> EX-37
"Subsidiary" or "Subsidiaries" means any Person of which more than fifty
percent (50%) of the equity interest in such Person at the time of computation
is owned, directly or indirectly, by a Credit Party or a Subsidiary of a
Credit Party;
"Term Loan" means a loan or loans made pursuant to Section 3.01 hereof;
"Term Note" or "Term Notes" means a promissory note or promissory notes,
as the case may be, of the Borrowers, executed and delivered as provided in
Section 3.02 hereof;
"Termination Date" shall mean August 31, 1996; provided that, on August
31, 1995 and on each August 31 thereafter, the Termination Date may be
extended for an additional one year period as requested in writing to the
Banks at least 30 days in advance by the Borrowers and agreed to in writing by
all of the Banks in their sole discretion;
"Total Assets" means, at any time, all items which would, in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis,
be classified as assets (other than intangible assets) on a consolidated
balance sheet of Airgas and its Subsidiaries;
"Unutilized Revolving Credit Loan Commitments" means, at any time, the
excess of (i) the aggregate Revolving Credit Loan Commitments at such time
over (ii) the sum of (A) the aggregate outstanding principal balance of the
Revolving Credit Loans at such time, plus (B) the LC Outstandings at such
time, plus (C) the BA Outstandings at such time plus (D) the aggregate
outstanding principal amount of the Money Market Loans at such time;
"U.S. currency" and "U.S." shall each mean freely transferable lawful
money of the United States;
"Valuable Transfer" means (i) all loans, advances or capital
contributions made to or for the benefit of, or letters of credit issued for
the account or benefit of, Holdings with any Extension of Credit (or with any
proceeds thereof), (ii) all debt securities or other obligations of Holdings
acquired from Holdings, retired by Holdings or collateralized by Holdings with
any Extension of Credit (or with any proceeds thereof), (iii) the fair market
value of all property acquired with any Extension of Credit (or with any
proceeds thereof) and transferred, absolutely and not as collateral, to
Holdings and (iv) all equity securities of Holdings acquired from Holdings
with any Extension of Credit (or with any proceeds thereof); and
"Voting Stock" means common stock of a corporation, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of the corporate directors (or Persons performing similar functions).
1.02 All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
<PAGE> EX-38
ARTICLE II
Revolving Loans
2.01 Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make Revolving Credit Loans to the Borrowers, or either of
them, at any time or from time to time on or after the date hereof and until
the Termination Date, in an aggregate principal amount at any time outstanding
not exceeding the amount of its then applicable Revolving Credit Loan
Commitment; provided that, at no time shall (i) the sum of (A) the aggregate
principal balance of all outstanding Revolving Credit Loans made by all of the
Banks, plus (B) the aggregate LC Outstandings, plus (C) the aggregate BA
Outstandings of all of the Banks, plus (D) the aggregate principal balance of
all outstanding Money Market Loans, exceed (ii) the aggregate Revolving Credit
Loan Commitments of all of the Banks. The Borrowers may borrow, repay and
reborrow hereunder on or after the date hereof and prior to the Termination
Date, subject to the terms, provisions and limitations set forth herein.
2.02 (a) The Revolving Credit Loans made by the Banks on any one date
shall be in a minimum aggregate principal amount of $1,500,000.00 or in an
integral multiple of $100,000.00 in excess thereof. Revolving Credit Loans
shall be made ratably from the Banks in accordance with their respective
Revolving Credit Loan Commitments; provided, however, that the failure of any
Bank to make its Revolving Credit Loan shall not in itself relieve any
other Bank of its obligation to lend hereunder. The initial Revolving Credit
Loan by each Bank shall be made against delivery to such Bank of an
appropriate Revolving Credit Note, payable to the order of such Bank, as
referred to in Section 2.03 hereof. In the event any Bank shall fail to make
a Revolving Credit Loan to the Borrowers in accordance with the terms hereof,
any other Bank may, but shall not be obligated to, make such Revolving Credit
Loan to the Borrowers.
(b) Each Revolving Credit Loan shall be either a CD Loan, a Eurodollar
Loan or a Prime Loan (or a combination thereof) as the Borrowers may request
subject to and in accordance with this Section. Subject to other provisions
of this Section and the provisions of Section 8.02 hereof, Revolving Credit
Loans of more than one type may be outstanding at the same time.
(c) Except for Revolving Credit Loans made pursuant to the terms of
Section 5.01 or Section 6.01 hereof, the Borrowers shall give the Agent prior
written, telefax or telephonic notice, no later than the Business Day of the
proposed borrowing in the case of a Prime Loan, no later than two Business
Days prior to the Business Day of the proposed borrowing in the case of a CD
Loan and no later than three Business Days prior to the Business Day of the
proposed borrowing in the case of a Eurodollar Loan, of each borrowing under
Section 2.01 hereof. In each case, such notice shall be irrevocable and shall
specify the aggregate amount of the proposed borrowing and the date thereof
(which shall be a Business Day). Such notice, to be effective, must be
received by the Agent not later than 10:00 a.m. (or 1:00 p.m. with respect to
a Eurodollar Loan), Charlotte, North Carolina time, on the Business Day
specified for a borrowing consisting of a Prime Loan, on the second Business
Day prior to the date specified for a borrowing consisting of a CD Loan and on
the third Business Day prior to the date specified for a borrowing consisting
of a Eurodollar Loan. Such notice shall specify whether the Revolving Credit
Loan then being requested is to be (or what portion or portions thereof are to
be) a Prime Loan, a CD Loan, or a Eurodollar Loan and, if such Loan or any
portion or portions thereof is to be a CD Loan or a Eurodollar Loan, the
Interest Period with respect thereto. If no election is specified in such
<PAGE> EX-39
notice, such Revolving Credit Loan (or the portion thereof as to which no
election is specified) shall be a Prime Loan. The Agent shall promptly on the
same day provide the Banks notice that it has received notice from the
Borrowers pursuant to this paragraph. On the borrowing date specified in such
notice, each Bank shall make its ratable share of the borrowing available to
the Borrowers at Account No. 001-641-844 maintained at the offices of
NationsBank, no later than 5:00 p.m., Charlotte, North Carolina time, in
Federal or other immediately available funds.
(d) Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrowers shall not in any notice of borrowing under this
Section 2.02 request any CD Revolving Credit Loan or any Eurodollar Revolving
Credit Loan which, if made, would result in an aggregate of more than nine
separate CD Revolving Credit Loans of any Bank or nine separate Eurodollar
Revolving Credit Loans of any Bank or nine separate CD Revolving Credit Loans
of any Bank, Eurodollar Revolving Credit Loans of any Bank and Bankers'
Acceptances being outstanding hereunder at any one time. For purposes of the
foregoing, (i) Loans made ratably by the Banks pursuant to a discrete
borrowing request shall be considered a single Loan, (ii) Loans of any single
type having different Interest Periods, regardless of whether they commence or
expire on the same date, shall be considered separate Loans and (iii) Bankers'
Acceptances created ratably by the Banks pursuant to a discrete bankers'
acceptance request shall be considered a single Bankers' Acceptance. The
Borrowers may continue any CD Revolving Credit Loan or Eurodollar Revolving
Credit Loan, or convert all or any part of any Prime Revolving Credit Loans,
CD Revolving Credit Loans or Eurodollar Revolving Credit Loans into Loans of
another type, in accordance with Section 8.02 hereof and subject to the
limitations set forth therein.
2.03 The Revolving Credit Loans by each Bank shall be evidenced by a
Revolving Credit Note duly executed on behalf of each of the Borrowers, dated
the date hereof, in substantially the form of Exhibit E attached hereto,
payable to the order of such Bank in a principal amount equal to the Revolving
Credit Loan Commitment of such Bank. Each Revolving Credit Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 2.04 hereof. The aggregate unpaid principal amount of the
Revolving Credit Loans of each Bank at any time shall be the principal amount
owing on the Revolving Credit Note of such Bank at such time. The principal
amount of each Revolving Credit Loan, as evidenced by a Revolving Credit Note,
shall be due and payable on the Termination Date. All accrued and unpaid
interest on the outstanding principal balance of each Revolving Credit Note
shall be payable on each Interest Payment Date; provided that, if any such day
is not a Business Day, such interest shall be payable on the next succeeding
Business Day (unless, in case of a Eurodollar Loan, the same would fall in a
succeeding month, in which case such principal shall be payable on the first
preceding Business Day). All payments under the Revolving Credit Notes shall
be made in accordance with Section 8.07 hereof.
2.04 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Revolving Credit Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 days) equal to
the Prime Rate. Interest shall be payable on each Prime Revolving Credit Loan
quarterly on each Interest Payment Date, commencing with the first of such
dates to occur after the date of such Prime Revolving Credit Loan, and on
the Termination Date or the date of conversion of such Prime Revolving Credit
Loan to a Loan of a different type.
<PAGE> EX-40
(b) Subject to the provisions of Section 8.01 hereof, each CD Revolving
Credit Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the CD
Base Rate plus the Applicable Margin. Interest shall be payable on each CD
Revolving Credit Loan on each applicable Interest Payment Date and at maturity
or the date of conversion of such CD Revolving Credit Loan to a Loan of a
different type. The Agent shall determine the applicable CD Base Rate for
each Interest Period at 10:00 A.M., or as soon as practicable thereafter, on
the date when such determination is to be made in respect of such Interest
Period and shall promptly and on the same day notify the Borrowers and the
Banks of the CD Base Rate so determined. Such determination shall be
conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Revolving Credit Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the LIBOR Base Rate plus the Applicable Margin. Interest shall be payable on
each Eurodollar Revolving Credit Loan on each applicable Interest Payment Date
and at maturity or the date of conversion of such Eurodollar Revolving Credit
Loan to a Loan of a different type. The Agent shall determine the applicable
LIBOR Base Rate for each Interest Period at 11:00 a.m., London time, or as
soon as practicable thereafter,on the date when such determination is to be
made in respect of such Interest Period and shall promptly and on the same day
notify the Borrowers and the Banks of the LIBOR Base Rate so determined. Such
determination shall be conclusive absent manifest error.
2.05 (a) The Borrowers jointly and severally agree to pay in immediately
available funds to the Agent (without offset or counterclaim), for the account
of the Banks, in consideration of the Revolving Credit Loan Commitments
hereunder, on the last day of each June, September, December and March,
commencing with the first such date after the date hereof, and on the date of
any reduction or termination of the Revolving Credit Loan Commitments of the
Banks hereunder, a commitment fee (hereinafter called for the purpose of this
Section 2.05(a) the "Commitment Fee") of (i) one-fourth of one percent (1/4%)
per annum (computed on the basis of the actual number of days elapsed in a
year of 365 days) on the average daily Unutilized Revolving Credit Loan
Commitments during the preceding period or quarter, and (ii) one-eighth of one
percent (1/8%) per annum (computed on the basis of the actual number of days
elapsed in a year of 365 days) on the average daily amount of Money Market
Loans outstanding pursuant to Article VII hereof during the preceding period
or quarter. The Commitment Fee shall commence to accrue as of the date
hereof, and shall cease to accrue, with respect to subsection (i) above, on
the earlier of the Termination Date or the termination of the Revolving Credit
Loan Commitments of the Banks hereunder, and, with respect to subsection (ii)
above, on the Termination Date.
(b) (i) The Borrowers may in full permanently terminate, or from time
to time in part permanently reduce, the Revolving Credit Loan Commitments, in
each case upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent. Reductions of the Revolving Credit Loan
Commitments pursuant to the terms of Section 5.01, Section 6.01 or Section
7.01 hereof shall not be considered permanent reductions of the Revolving
Credit Loan Commitments. Each partial reduction of the Revolving Credit Loan
Commitments shall be in an aggregate principal amount of $5,000,000.00 or in
an integral multiple of $1,000,000.00 in excess thereof. The Agent shall
promptly on the same day provide the Banks notice that it has received notice
from the Borrowers pursuant to this subparagraph.
<PAGE> EX-41
(ii) In the case of any termination or reduction of the Revolving
Credit Loan Commitments pursuant to subparagraph (i) above, immediately after
giving effect to such termination or reduction, (A) the sum of (1) the
aggregate principal balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (1) the aggregate LC Outstandings, plus (3) the
aggregate BA Outstandings of all of the Banks, plus (4) the aggregate
principal balance of all outstanding Money Market Loans, shall not exceed (B)
the aggregate Revolving Credit Loan Commitments of all of the Banks. Each
reduction in the aggregate Revolving Credit Loan Commitments pursuant to
subparagraph (i) above shall be made ratably among the Banks in accordance
with each Bank's Revolving Credit Loan Commitment.
ARTICLE III
Term Loans
3.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make a Term Loan to the Borrowers on the Termination Date
in an amount equal to the then outstanding principal balance of such Bank's
Revolving Credit Note, the proceeds of which will be used to repay the
outstanding principal balance under such Revolving Credit Note. Each Bank
shall make its Term Loan hereunder against delivery to such Bank of an
appropriate Term Note, payable to the order of such Bank, as referred to in
Section 3.02 hereof. Each Bank shall make its Term Loan by making the
principal amount of such Term Loan available to the Borrowers at the
Borrowers' Account No. 001-641-844 maintained at the offices of NationsBank,
no later than 5:00 p.m., Charlotte, North Carolina time, on the Termination
Date, in Federal or other immediately available funds.
(b) Each Term Loan shall be either a Prime Loan, a CD Loan or a
Eurodollar Loan (or a combination thereof) as the Borrowers may request
pursuant to this Section. Subject to the other provisions of this Section and
the provisions of Section 8.02 hereof, Term Loans of more than one type may be
outstanding at the same time.
(c) The Borrowers shall give the Agent prior irrevocable written,
telefax or telephonic notice, no later than the Business Day of the proposed
borrowing in the case of a Prime Loan, no later than two Business Days prior
to the Business Day of the proposed borrowing in the case of a CD Loan and no
later than three Business Days' prior to the Business Day of the proposed
borrowing in the case of a Eurodollar Loan (which notice, to be effective,
must be received by the Agent not later than 10:00 a.m. (or 1:00 p.m. with
respect to a Eurodollar Loan), Charlotte, North Carolina time, on the Business
Day prior to the Termination Date, in the case of a Prime Loan, on the second
Business Day prior to the Termination Date, in the case of a CD Loan, and on
the third Business Day prior to the Termination Date, in the case of a
Eurodollar Loan) specifying whether such Term Loans are to be (or what portion
or portions thereof are to be) Prime Loans, CD Loans or Eurodollar Loans, and
if such Loans or any portion or portions thereof are to be CD Loans or
Eurodollar Loans, the Interest Period with respect thereto. If no election is
specified in such notice, such Term Loans (or the portion thereof as to which
no election is specified) shall be Prime Loans. The Agent shall promptly on
the same day provide the Banks notice that it has received notice from the
Borrowers pursuant to this paragraph.
<PAGE> EX-42
(d) Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrowers shall not in any notice of borrowing under this
Section 3.01 request any CD Term Loan or any Eurodollar Term Loan which, if
made, would result in an aggregate of more than nine separate CD Term Loans or
nine separate Eurodollar Term Loans or nine separate CD Term Loans and
Eurodollar Term Loans of any Bank being outstanding hereunder at any one time.
For purposes of the foregoing, (i) Loans made ratably by the Banks pursuant to
a discrete borrowing request shall be considered a single Loan and (ii) Loans
of any single type having different Interest Periods, regardless of whether
they commence or expire on the same date, shall be considered separate Loans.
The Borrowers may continue any CD Term Loans or Eurodollar Term Loans or
convert all or any part of any Prime Term Loans, CD Term Loans or Eurodollar
Term Loans into Term Loans of another type in accordance with Section 8.02
hereof and subject to the limitations set forth therein.
3.02 The Term Loan by each Bank shall be evidenced by a Term Note duly
executed on behalf of each of the Borrowers, dated as of the Termination Date,
in substantially the form of Exhibit F attached hereto, payable to the order
of such Bank in the outstanding principal amount of such Bank's Revolving
Credit Note as of the Termination Date. The principal amount of each Term
Note shall be payable in twenty (20) consecutive equal quarterly installments,
such installments being due on the last day of each June, September, December
and March beginning with the principal installment due on the first such date
to occur following the Termination Date. Except in the case of the final
installment, which shall be exact and in an amount equal to the outstanding
principal balance of such Term Note, all installment payments of principal
shall be rounded up to the next whole dollar. Each Term Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 3.03 hereof.
3.03 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Term Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 days) equal to the Prime
Rate plus one-half of one percent (1/2%). Interest shall be payable on each
Prime Term Loan quarterly on each Interest Payment Date, commencing with the
first of such dates after the date of such Prime Term Loan, and at maturity or
the date of conversion of such Prime Term Loan to a Loan of a different type.
(b) Subject to the provisions of Section 8.01 hereof, each CD Term Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the CD Base Rate plus
the Applicable Margin. Interest shall be payable on each CD Term Loan on each
applicable Interest Payment Date and at maturity or the date of conversion of
such CD Term Loan to a Loan of a different type. The Agent shall determine
the applicable CD Base Rate for each Interest Period at 10:00 A.M., or as soon
as practicable thereafter, on the date when such determination is to be made
in respect of such Interest Period and shall promptly and on the same day
notify the Borrowers and the Banks of the CD Base Rate so determined. Such
determination shall be conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Term Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the LIBOR
Base Rate plus the Applicable Margin. Interest shall be payable on each
Eurodollar Term Loan on each applicable Interest Payment Date and at maturity
or the date of conversion of such Eurodollar Term Loan to a Loan of a
different type. The Agent shall determine the applicable LIBOR Base Rate for
each Interest Period at 11:00 a.m., London time, or as soon as practicable
<PAGE> EX-43
thereafter, on the date when such determination is to be made in respect of
such Interest Period and shall promptly and on the same day notify the
Borrowers and the Banks of the LIBOR Base Rate so determined. Such
determination shall be conclusive absent manifest error.
ARTICLE IV
Letter of Credit Term Loans
4.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make a Letter of Credit Term Loan on the date specified in
Section 5.01(d) hereof on account of a drawing under a standby Letter of
Credit after the Termination Date but prior to the Maturity Date in an amount
equal to such Bank's ratable share of such drawing. Each Letter of Credit
Term Loan will be made in accordance with the terms of Section 5.01(d) hereof.
In the event any Bank shall fail to make a Letter of Credit Term Loan in
accordance with the terms hereof, any other Bank may, but shall not be
obligated to, make such Letter of Credit Term Loan.
(b) Each Letter of Credit Term Loan shall be a Prime Loan unless and
until later converted to a Loan of a different type pursuant to Section 8.02
hereof. Subject to the other provisions of this Section and the provisions of
Section 8.02 hereof, Letter of Credit Term Loans of more than one type may be
outstanding at the same time.
4.02 The principal amount of each Letter of Credit Term Loan shall be
payable in consecutive equal quarterly installments, such installments being
due on the last day of each June, September, December and March, beginning
with the principal installment due on the first such date to occur following
the making of such Letter of Credit Term Loan and continuing thereafter until
the Maturity Date. The amount of each such installment shall equal the amount
of the Letter of Credit Term Loan divided by the number of quarterly
installments. Except in the case of the final installment, which shall be
exact and in an amount equal to the outstanding principal balance of the
applicable Letter of Credit Term Loan, all installment payments of principal
shall be rounded up to the next whole dollar.
4.03 The Letter of Credit Term Loans by each Bank shall be evidenced by
a Letter of Credit Term Note duly executed on behalf of each of the Borrowers,
dated the Termination Date, in substantially the form of Exhibit G attached
hereto, payable to the order of such Bank in a face amount equal to such
Bank's ratable share of the aggregate undrawn amount of the then outstanding
Letters of Credit.
4.04 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Letter of Credit Term Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed in a year of 365 days) equal
to the Prime Rate plus one-half of one percent (1/2%). Interest shall be
payable on each Prime Letter of Credit Term Loan quarterly on each Interest
Payment Date, commencing with the first of such dates after the date of making
of such Prime Letter of Credit Term Loan, and at maturity or the date of
conversion of such Prime Letter of Credit Term Loan to a Loan of a different
type.
<PAGE> EX-44
(b) Subject to the provisions of Section 8.01 hereof, each CD Letter of
Credit Term Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the CD Base Rate plus the Applicable Margin. Interest shall be payable on
each CD Letter of Credit Term Loan on each applicable Interest Payment Date
and at maturity or the date of conversion of such CD Letter of Credit Term
Loan to a Loan of a different type. The Agent shall determine the applicable
CD Base Rate for each Interest Period at 10:00 A.M., or as soon as practicable
thereafter, on the date when such determination is to be made in respect of
such Interest Period and shall promptly and on the same day notify the
Borrowers and the Banks of the CD Base Rate so determined. Such determination
shall be conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Letter of Credit Term Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days)
equal to the LIBOR Base Rate plus the Applicable Margin. Interest shall be
payable on each Eurodollar Letter of Credit Term Loan on each applicable
Interest Payment Date and at maturity or the date of conversion of such
Eurodollar Letter of Credit Term Loan to a Loan of a different type. The
Agent shall determine the applicable LIBOR Base Rate for each Interest Period
at 11:00 a.m., London time, or as soon as practicable thereafter, on the date
when such determination is to be made in respect of such Interest Period and
shall promptly and on the same day notify the Borrowers and the Banks of the
LIBOR Base Rate so determined. Such determination shall be conclusive
absent manifest error.
ARTICLE V
Letters of Credit
5.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the LC Documents, if
any, executed in connection with the issuance of each Letter of Credit and any
other terms and conditions which the LC Agent may reasonably require, the LC
Agent will, at any time and from time to time from the Closing Date until the
day five (5) Business Days prior to the Termination Date, issue such Letters
of Credit as the Borrowers, or either of them, may request in a form
acceptable to the LC Agent; provided, however, that (i) at no time shall the
LC Outstandings exceed $50,000,000.00, (ii) at no time shall the LC
Outstandings with respect to all documentary Letters of Credit exceed
$10,000,000.00, (iii) no Letter of Credit shall be issued hereunder if, after
giving effect to the issuance of such Letter of Credit, (A) the sum of (1) the
aggregate principal balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (2) the aggregate LC Outstandings, plus (3) the
aggregate BA Outstandings of all of the Banks, plus (4) the aggregate
principal balance of all outstanding Money Market Loans, would exceed (B) the
aggregate Revolving Credit Loan Commitments of all of the Banks, (iv) no
Letter of Credit shall be issued hereunder if it would support any tax exempt
obligations of the applicable account party, (v) the stated expiry date of
each standby Letter of Credit shall be a date falling on or before the
Maturity Date and the stated expiry date of each documentary Letter of Credit
shall be a date falling on or before the Termination Date, (vi) the aggregate
undrawn amount of issued and outstanding standby Letters of Credit having an
expiration date later than the date one year from the date of issuance thereof
shall not at any time exceed $5,000,000.00 and (vii) the expiration date of
any documentary Letter of Credit shall be not more than 180 days from the date
of issuance thereof. Subject to the limitations set forth in the preceding
<PAGE> EX-45
sentence, the Borrowers shall be permitted to request the issuance of annually
renewable standby Letters of Credit. Each Letter of Credit shall comply with
the related LC Documents. The issuance and expiration dates of each Letter of
Credit shall be a Business Day.
(b) The request for the issuance of a Letter of Credit shall be
submitted in writing to the LC Agent not later than 10:00 a.m., Charlotte,
North Carolina time, three (3) Business Days prior to the requested date of
issuance and shall be accompanied by such documents as are specified therein
and in the related LC Documents. Upon issuance of a Letter of Credit, the LC
Agent shall promptly and on the same day notify the Banks of the amount and
terms thereof.
(c) (i) Upon the issuance of each Letter of Credit, each Bank shall
automatically acquire a participation in the liability of the LC Agent under
such Letter of Credit in an amount equal to such Bank's pro rata share (based
on such Bank's portion of the total Revolving Credit Loan Commitments) of such
liability and shall thereby absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated to pay to the
LC Agent and discharge when due in accordance with subsection (d) below, its
pro rata share of the LC Agent's liability under such Letter of Credit.
(ii) On the Closing Date, (A) each Bank shall automatically acquire
a participation in the liability of the applicable issuing Bank under each
Existing Letter of Credit in an amount equal to such Bank's pro rata share
(based on such Bank's portion of the total Revolving Credit Loan Commitments)
of such liability and shall thereby absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay to such issuing Bank and discharge when due in accordance with subsection
(d) below, its pro rata share of such issuing Bank's liability under such
Existing Letters of Credit and (B) each Existing Letter of Credit shall be
deemed for all purposes of this Loan Agreement and the other Loan Documents to
be a Letter of Credit.
(d) In the event of any drawing under any Letter of Credit, the LC Agent
will promptly and on the same day notify the Borrowers. Unless the Borrowers
shall immediately notify the LC Agent of their intent to otherwise reimburse
the LC Agent (i) any drawing under a Letter of Credit prior to the Termination
Date shall be considered a request by the Borrowers for a Revolving Credit
Loan in an amount equal to such drawing pursuant to the terms hereof and (ii)
any drawing under a standby Letter of Credit after the Termination Date shall
be considered a request by the Borrowers for a Letter of Credit Term Loan
pursuant to the terms hereof. Each Revolving Credit Loan or Letter of Credit
Term Loan made pursuant to the foregoing sentence shall be a Prime Loan
(unless and until later converted to a Loan of a different type pursuant to
the terms hereof) and shall be applied to satisfy the related LC Reimbursement
Obligation. The Borrowers shall reimburse the LC Agent on the date of drawing
under any Letter of Credit for the full amount of the related LC Reimbursement
Obligation (either with proceeds of a Revolving Credit Loan or a Letter of
Credit Term Loan, as applicable, as provided above, or otherwise) in
accordance with Section 8.07 hereof. If the Borrowers shall fail to reimburse
the LC Agent as provided hereinabove, the related LC Reimbursement Obligation
shall bear interest at a per annum rate equal to the Prime Rate plus three
percent (3%). The Borrowers' reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights
of set-off, counterclaim or defense to payment the Borrowers (or any other
applicable account party as permitted by Section 5.04 hereof) may claim or
have against the LC Agent, the Agent, the Banks, the beneficiary of the Letter
<PAGE> EX-46
of Credit drawn upon or any other Person, including without limitation any
defense based on any failure of the Borrowers (or any other applicable account
party as permitted by Section 5.04 hereof) to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit or
any related LC Documents. The LC Agent will promptly notify the other Banks
of the amount of any unpaid LC Reimbursement Obligation, and each Bank shall
promptly pay to the Agent for the account of the LC Agent the amount of such
Bank's pro rata share of such unpaid LC Reimbursement Obligation by means of a
Loan made pursuant to this Section 5.01(d) or otherwise. Such payment shall
be made on the day such notice is received by such Bank from the LC Agent if
such notice is received at or before 2:00 p.m., Charlotte, North Carolina
time, otherwise such payment shall be made at or before 5:00 p.m., Charlotte,
North Carolina time, on the Business Day next succeeding the day such notice
is received. Each Bank's obligation to make such payment to the LC Agent, and
the right of the LC Agent to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall
be made without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Bank to the LC Agent,
such Bank shall, automatically and without any further action on the part of
the LC Agent or such Bank, acquire a participation in an amount equal to such
payment (excluding the portion of such payment constituting interest owing to
the LC Agent) in the related LC Reimbursement Obligation, in the interest
thereon and in the related LC Documents, and shall have a claim against the
Borrowers with respect thereto. In allocating to the Banks interest payments
received from the Borrowers on the Revolving Credit Loans and Letter of Credit
Term Loans, the Agent is hereby directed to consider the date of
reimbursements to the Agent for the account of the LC Agent as described in
this Section 5.01(d).
(e) The Borrowers hereby agree, jointly and severally, to indemnify and
hold harmless the LC Agent, each other Bank, the Agent and each of their
respective officers, directors, affiliates, employees or agents (the
"Indemnitees") from and against any and all claims and damages, losses,
liabilities, costs and expenses which the Indemnitees may incur (or which may
be claimed against any Indemnitee) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any Letter
of Credit; provided that the Borrowers shall not be required to indemnify the
Indemnitees for any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, (i) caused by the willful misconduct or
gross negligence of any Indemnitee in determining whether a request presented
under any Letter of Credit complied with the terms of such Letter of Credit
or (ii) caused by the LC Agent's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms
and conditions of such Letter of Credit (unless such payment is prohibited by
any law, regulation, court order or decree). The provisions of this Section
5.01(e) shall remain operative and in full force and effect regardless of the
expiration of this Loan Agreement.
(f) (i) The Borrowers agree jointly and severally to pay (without offset
or counterclaim) to the Agent or, in the case of an Existing Letter of Credit,
to the applicable issuing Bank, for the account of the Banks, a per annum fee
equal to the Applicable Margin for Eurodollar Loans (as determined from time
to time as provided in the definition of "Applicable Margin" set forth in
Section 1.01 hereof) on the maximum amount then available to be drawn under
each standby Letter of Credit from the date of issuance of such Letter of
Credit until the expiration of such Letter of Credit. This standby Letter of
Credit fee shall be payable quarterly in advance beginning on the date of
issuance of such Letter of Credit and on the last day of each March, June,
<PAGE> EX-47
September and December in each year thereafter until the expiration of such
Letter of Credit.
(ii) The Borrowers agree jointly and severally to pay to the Agent
(without offset or counterclaim) for the account of the Banks (A) an issuance
fee equal to twenty-five (25) basis points on the face amount of each
documentary Letter of Credit and (B) a drawing fee equal to fifteen (15) basis
points on the amount of each drawing under any documentary Letter of Credit.
The issuance fee described in subclause (A) above shall be payable on the date
of issuance of each documentary Letter of Credit, and the drawing fee
described in subclause (B) above shall be payable on each date of drawing
under a documentary Letter of Credit.
(iii) In addition to the fees payable pursuant to clauses (i) and
(ii) above, the Borrowers hereby agree jointly and severally to pay to the
Agent, for the account of the LC Agent, (A) a negotiation fee equal to ten
(10) basis points on the amount of each drawing under a documentary Letter of
Credit and (B) the customary charges from time to time of the LC Agent with
respect to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, any Letters of Credit.
(g) Any fee paid in connection with a Letter of Credit (including an
Existing Letter of Credit) other than the fees and other amounts payable
pursuant to subsection (f)(iii) above, shall be shared by the LC Agent with
the Banks pro rata in accordance with Section 8.07 hereof; provided, however,
the Banks shall not be entitled to any such fee for an Existing Letter of
Credit which has been deemed to be earned during the period prior to June 19,
1987; provided further, any such fee shall be deemed to be earned evenly
throughout the period for which it is paid regardless of when it was paid.
5.02 In the event of the imposition hereafter of, or changes hereafter
in, the reserve or capital allocation requirements promulgated by the Board of
Governors of the Federal Reserve System of the United States or any public
body or governmental agency having jurisdiction over any Bank with respect to
the issuance of or the participation in letters of credit or the maintenance
of loan commitments, the Borrowers will pay to the Agent for the benefit of
such Bank such additional amount or amounts as will compensate such Bank for
the effect of such reserve or capital allocation requirements as determined by
such Bank on the basis of such reserve or capital allocation requirements
applicable to it, which determination shall be conclusive absent manifest
error. The provisions of this Section shall survive termination of this Loan
Agreement.
5.03 Each Bank agrees to provide the Agent with quarterly reports of all
outstanding Existing Letters of Credit issued by such Bank. Such reports
shall be delivered within 15 days of the end of each March, June, September
and December, commencing with the quarterly period ending September 30, 1993,
and shall specify the following with respect to each outstanding Existing
Letter of Credit issued by such Bank: (i) the letter of credit number for
such Letter of Credit, (ii) the beneficiary of such Letter of Credit, (iii)
the original face amount of such Letter of Credit, (iv) the then current
available amount of such Letter of Credit, (v) the amortization schedule for
such Letter of Credit, (vi) the Letter of Credit fee applicable to such Letter
of Credit and (vii) the total amount of the Letter of Credit fee accrued with
respect to such Letter of Credit during the preceding quarterly period. Each
Bank further agrees to provide the Agent with prompt notice of any change
(prior to the end of the then current quarterly period) affecting the most
recent report of such Bank to the Agent pursuant to this Section 5.03.
<PAGE> EX-48
5.04 Notwithstanding anything to the contrary set forth in this Loan
Agreement, including without limitation Section 5.01(a) hereof, a Letter of
Credit issued hereunder may contain a statement to the effect that such Letter
of Credit is issued for the account of any Guarantee Subsidiary, provided that
notwithstanding such statement, the Borrowers shall be the actual account
parties for all purposes of this Loan Agreement for such Letter of Credit and
such statement shall not affect the Borrowers' obligations hereunder with
respect to such Letter of Credit.
ARTICLE VI
Bankers' Acceptances
6.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the BA Documents, if
any, executed in connection with the creation of each Bankers' Acceptance,
each Bank, severally and not jointly, agrees to create Bankers' Acceptances
for the account of the Borrowers, or either of them, at any time or from time
to time on or after the date hereof until the date thirty-five (35) Business
Days prior to the Termination Date; provided, however, that (i) at no time
shall the BA Outstandings with respect to all Bankers' Acceptances created by
any Bank exceed such Bank's Bankers' Acceptance Commitment, (ii) at no time
shall the BA Outstandings with respect to all Bankers' Acceptances created by
all of the Banks exceed $100,000,000.00, (iii) the Borrowers shall not be
entitled to request any Bankers' Acceptance which, if created would result in
an aggregate of more than nine separate CD Loans, Eurodollar Loans and
Bankers' Acceptances being outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing, (A) Loans made ratably by the
Banks pursuant to a discrete borrowing request shall be considered a single
Loan, (B) Loans of any single type having different Interest Periods,
regardless of whether they commence or expire on the same date, shall be
considered separate Loans and (C) Bankers' Acceptances created ratably by the
Banks pursuant to a discrete bankers' acceptance request shall be considered a
single Bankers' Acceptance), (iv) the Borrowers shall not be entitled to
request any Bankers' Acceptances if, after giving effect to the Bankers'
Acceptances to be created by all of the Banks pursuant to such request, (A)
the sum of (1) the aggregate principal balance of all outstanding Revolving
Credit Loans made by all of the Banks, plus (2) the aggregate LC Outstandings,
plus (3) the aggregate BA Outstandings of all of the Banks, plus (4) the
aggregate principal balance of all Money Market Loans, would exceed (B) the
aggregate Revolving Credit Loan Commitments of all of the Banks and (v) the
Borrowers shall not be entitled to request any Bankers' Acceptances if (A)
creation by any Bank of its related Bankers' Acceptance pursuant to such
request would cause such Bank to exceed the maximum amount of outstanding
bankers' acceptances permitted by applicable law or (B) in the reasonable
opinion of the Agent or the Majority Banks, general conditions in the public
market for rediscounting bankers' acceptances render it inadvisable to create
or discount bankers' acceptances.
(b) The Bankers' Acceptances created by the Banks in connection with
each bankers' acceptance transaction shall be in a minimum aggregate principal
amount of $10,000,000.00 or in an integral multiple of $1,000,000.00 in excess
thereof. Bankers' Acceptances shall be created ratably by the Banks in
accordance with their respective Bankers' Acceptance Commitments; provided,
however, that the failure of any Bank to create its Bankers' Acceptance shall
not in itself relieve any other Bank of its obligation to create a Bankers'
Acceptance hereunder. In the event any Bank shall fail to create a Bankers'
Acceptance in accordance with the terms hereof, any other Bank may, but shall
<PAGE> EX-49
not be obligated to, create such Bankers' Acceptance. Each Bankers'
Acceptance shall comply with the related BA Documents and shall be executed on
behalf of the applicable Borrower (or other applicable account party as
permitted by Section 6.01(h) hereof) and presented to the accepting Bank
pursuant to such procedures as are provided for in such BA Documents or
otherwise provided or required by such accepting Bank. The Borrowers shall
supply to each Bank on the Closing Date, and thereafter from time to time upon
the request of such Bank, a sufficient number of blank drafts conforming to
the requirements of the related BA Documents for such Bank and duly executed
on behalf of the Borrowers (or other applicable account party as permitted by
Section 6.01(h) hereof), to be held in safekeeping by such Bank and used as
provided herein and in such related BA Documents. The maturity of any
Bankers' Acceptance shall be the date 30, 60, 90 or 180 days after the
creation thereof, as the Borrowers may elect; provided that, no such maturity
shall extend beyond the date falling five (5) Business Days before the
Termination Date. The creation and maturity dates of each Bankers' Acceptance
shall be a Business Day.
(c) The Borrowers shall give the Agent prior written, telefax or
telephonic notice, no later than 10:00 a.m., Charlotte, North Carolina time,
one (1) Business Day prior to the requested date of creation of the requested
Bankers' Acceptances. In each case, such notice shall be irrevocable, shall
be in the form of Exhibit H attached hereto and shall specify (i) the
aggregate amount of Bankers' Acceptances requested, (ii) the date of creation
of such Bankers' Acceptances, (iii) the date of maturity of such Bankers'
Acceptances and (iv) the nature of the transaction to be financed with the
proceeds of such Bankers' Acceptances. The Agent shall promptly on the same
day provide the Banks with a telefax copy of any notice that it has received
from the Borrowers pursuant to this paragraph. On the date of creation for
Bankers' Acceptances specified in such notice, each Bank shall create a
Bankers' Acceptance having a face amount equal to its ratable share of the
aggregate Bankers' Acceptances requested by the Borrowers. Upon the creation
by each Bank of a Bankers' Acceptance in accordance with the foregoing
provisions of this subsection (c), such Bank shall discount such Bankers'
Acceptance by deducting from the face amount thereof a discount equal to the
BA Discount Rate then in effect applied against the face amount of such Bank's
Bankers' Acceptance for the term thereof, and such Bank shall make the net
amount available to the Borrowers for the account of the applicable Borrower
(or other applicable account party as permitted by Section 6.01(h) hereof) at
Account No. 001-641-844 maintained at the offices of NationsBank, no later
than 5:00 p.m., Charlotte, North Carolina time, in Federal or other
immediately available funds. Each Bank may retain or rediscount, at its
election, any Bankers' Acceptance created by such Bank, and the amount
received by such Bank upon payment thereof at maturity or upon rediscounting
shall be solely for the account of such Bank. In connection with each request
for Bankers' Acceptances pursuant to this Section 6.01, the Agent shall
determine the applicable BA Discount Rate at 11:00 a.m., Charlotte, North
Carolina time, on the date of creation of the related Bankers' Acceptances and
shall promptly notify the Borrowers and the Banks of the BA Discount Rate so
determined. Such determination shall be conclusive absent manifest error.
(d) Unless the Borrowers previously shall have notified the Agent of
their intent to otherwise reimburse the Banks for advances made by the Banks
upon maturity of any Bankers' Acceptances created hereunder, the Borrowers
shall be deemed to have requested a Revolving Credit Loan pursuant to the
terms hereof in order to satisfy the related BA Reimbursement Obligations on
the date of such maturity. Each Revolving Credit Loan made pursuant to the
foregoing sentence shall be a Prime Loan (unless and until later converted to
<PAGE> EX-50
a Loan of a different type pursuant to the terms hereof) and shall be applied
to satisfy such related BA Reimbursement Obligations. The Borrowers shall
reimburse the accepting Bank on the maturity date of any Bankers' Acceptances
created by such Bank hereunder for the full amount of the related BA
Reimbursement Obligation (either with proceeds of a Revolving Credit Loan as
provided above, or otherwise) in accordance with Section 8.07 hereof. If the
Borrowers shall fail to reimburse any accepting Bank as provided hereinabove,
the related BA Reimbursement Obligations shall bear interest at a per annum
rate equal to the Prime Rate plus three percent (3%). The Borrowers'
reimbursement obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of set-off, counterclaim or
defense to payment the Borrowers (or any other applicable account party as
permitted by Section 6.01(h) hereof) may claim or have against the accepting
Bank, the Agent, the other Banks or any other Person.
(e) The Borrowers agree that, in the event that any Bankers' Acceptance
created (or to be created) hereunder shall not, in the reasonable opinion of
the accepting Bank, meet all requirements for "eligible" bankers' acceptances
(as determined in accordance with paragraph 7 of Section 13 of the Federal
Reserve Act (12 U.S.C. 372) (or any successor statute) and/or any other law,
rule or regulation applicable to such Bank), the Borrowers shall, upon demand
by such Bank, pay to the Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for any increased costs resulting therefrom
(including without limitation costs resulting from any reserve requirement,
premium liability to the Federal Deposit Insurance Corporation, or a higher
discount rate). A detailed statement as to the amount of such increased
costs, prepared in good faith and submitted by the applicable accepting Bank
to the Borrowers, shall be conclusive and binding for all purposes, absent
manifest error in computation. The provisions of this Section 6.01(e) shall
remain operative and in full force and effect regardless of the expiration of
this Loan Agreement.
(f) The Borrowers shall maintain detailed records and accounts in which
full, true and correct entries will be made of all transactions financed with
proceeds of Bankers' Acceptances created hereunder.
(g) In the event that any signatory whose signature appears on any draft
accepted and discounted by Bank shall cease to be an authorized signatory on
or prior to the date on which the related Bankers' Acceptance is created by
such Bank, the obligations of the Borrowers hereunder and under the related BA
Documents and with respect to such Bankers' Acceptance shall nevertheless be
valid and enforceable as if such signatory has been an authorized signatory
on such date.
(h) Notwithstanding anything to the contrary set forth in this Loan
Agreement, including without limitation Section 6.01(a) hereof, the Borrowers
may request the creation of Bankers' Acceptances for the account of any
Guarantee Subsidiary, provided that the Borrowers shall be the actual account
parties for all purposes of this Loan Agreement for such Bankers' Acceptances
and the fact that any Bankers' Acceptance shall have been so created for the
account of a Guarantee Subsidiary shall not affect the Borrowers' obligations
hereunder with respect to such Bankers' Acceptance.
<PAGE> EX-51
ARTICLE VII
Money Market Loans
7.01 The Banks agree that the Borrowers, or either of them, may at any
time or from time to time on or after the date hereof and until the
Termination Date request the Banks to make Money Market Loans in an aggregate
principal amount at any time outstanding not exceeding the aggregate Revolving
Credit Loan Commitments of all the Banks; provided, however, that the
aggregate principal amount of the outstanding Money Market Loans of any Bank
(individually or taken together with the outstanding Revolving Credit Loans of
such Bank) may (but shall not be required to) exceed such Bank's Revolving
Credit Loan Commitment. The Banks may, but shall have no obligation to, make
Money Market Loans and the Borrowers may, but shall have no obligation to,
accept Money Market Quotes, pursuant to the following terms and conditions:
(a) The Borrowers, or either of them, may at any
time and from time to time on or after the Closing Date
and until the Termination Date make a written, telefax or
telephonic request to all of the Banks for a Money Market
Loan. To be effective, such request must be received by
each of the Banks by such time as determined by each such
Bank in accordance with such Bank's customary practices
(in any event not to be later than 12:00 noon Eastern
Standard (or Daylight) Time) on the date of the requested
borrowing and must specify (i) that a Money Market Loan
is requested, (ii) the amount of such Money Market Loan,
which amount shall be not less than $5,000,000.00 or an
integral multiple of $1,000,000.00 in excess thereof,
provided that the Borrowers may request and borrow up to
two (2) Money Market Loans at any one time outstanding,
each of which is in an amount of not less than
$2,000,000.00 or an integral multiple of $1,000,000.00 in
excess thereof, and (iii) the Interest Period for such
Money Market Loan.
(b) Upon receipt of a request by the Borrowers for
a Money Market Loan, each Bank may, in its sole
discretion, submit a Money Market Quote containing an
offer to make a Money Market Loan in an amount up to the
amount specified in the related request for Money Market
Loans. Such Money Market Quote shall be submitted to the
Borrowers by telephone notice by such time as determined
by such Bank in accordance with such Bank's customary
practices (in any event not to be later than 1:00 p.m.
Eastern Standard (or Daylight) Time), on the date of the
requested Money Market Loan. Money Market Quotes so made
shall be irrevocable. Each Money Market Quote shall
specify (i) the date of the proposed Money Market Loan,
(ii) the maximum and minimum principal amounts of the
Money Market Loan for which such offer is being made
(which may be for all or a part of (but not more than)
the amount requested by the Borrowers), (iii) the
applicable Money Market Rate, and (iv) the applicable
Interest Period.
<PAGE> EX-52
(c) The Borrowers may, before such time as
determined by the applicable Bank in accordance with such
Bank's customary practices (in any event until 2:00 p.m.
Eastern Standard (or Daylight) Time, on the date of the
requested Money Market Loan, accept any Money Market
Quote by giving the applicable Bank and the Agent
telephone notice (immediately confirmed in writing) of
(i) the Bank or Banks whose Money Market Quote(s) is/are
accepted, (ii) the principal amount of the Money Market
Quote(s) so accepted and (iii) the Interest Period of the
Money Market Quote(s) so accepted. The Borrowers may
accept any Money Market Quote in whole or in part;
provided, however, that (a) the principal amount of each
Money Market Loan may not exceed the maximum amount
offered in the Money Market Quote and may not be less
than the minimum amount offered in the Money Market
Quote, (b) the principal amount of each Money Market Loan
may not exceed the total amount requested pursuant to
subsection (a) above, (c) the Borrowers shall not accept
a Money Market Quote made at a particular Money Market
Rate if they have decided to reject a Money Market Quote
made at a lower Money Market Rate and (d) if the
Borrowers shall accept a Money Market Quote or Quotes
made at a particular Money Market Rate but the amount of
such Money Market Quote or Quotes shall cause the total
amount of Money Market Quotes to be accepted by the
Borrowers to exceed the total amount requested pursuant
to subsection (a) above, then the Borrowers shall accept
a portion of such Money Market Quote or Quotes in an
amount equal to the total amount requested pursuant to
subsection (a) above less the amount of other Money
Market Quotes accepted with respect to such request,
which acceptance, in the case of multiple Money Market
Quotes at the same Money Market Rate, shall be made pro
rata in accordance with each such Money Market Quote at
such Money Market Rate. Money Market Quotes so accepted
by the Borrowers shall be irrevocable.
(d) Upon acceptance by the Borrowers pursuant to
subsection (c) above of all or a portion of any Bank's
Money Market Quote, such Bank shall, before such time as
determined by such Bank in accordance with such Bank's
customary practices, on the date of the requested Money
Market Loan, make such Money Market Loan available to the
Agent in Federal or other immediately available funds.
Upon receipt of such funds, the Agent will promptly make
such funds available to the Borrowers at Account No. 001-
641-844 maintained at the offices of NationsBank;
provided, however, that if on the date of such Money
Market Loan the Borrowers are to repay all or any part of
an outstanding Revolving Credit Loan, then the Agent
shall apply such Money Market Loan first to such
repayment, and only an amount equal to the excess (if
any) of the amount borrowed over the amount being repaid
shall be made available to the Borrowers.
<PAGE> EX-53
(e) The Money Market Loans of each Bank shall be
evidenced by a single Money Market Note duly executed on
behalf of each of the Borrowers, dated the date hereof,
in substantially the form of Exhibit I attached hereto,
payable to the order of such Bank in the original
principal amount of up to $250,000,000.00 with interest
on the unpaid principal amount from time to time
outstanding of each Money Market Loan evidenced thereby
as prescribed in subparagraph (h). Each Bank is hereby
authorized to record the date and amount of each Money
Market Loan made by such Bank, the maturity date thereof,
the date and amount of each payment of principal thereof
and interest thereon and the interest rate with respect
thereto on the schedule annexed to and constituting a
part of its Money Market Note, and any such recordation
shall constitute prima facie evidence of the accuracy of
the information so recorded; provided, however, that the
failure to make any such recordation shall not affect the
obligations of the Borrowers hereunder or under such
Money Market Note. Each Money Market Loan shall bear
interest for the period from and including the date of
such Money Market Loan on the principal amount thereof
from time to time outstanding at the applicable Money
Market Rate determined as provided in subparagraph (h),
and such interest shall be payable as specified in
subparagraph (h).
(f) Within the limits and the conditions set forth
in this Section 7.01, the Borrowers may from time to time
borrow under this Section 7.01, repay pursuant to
subparagraph (g) below, and reborrow under this Section
7.01.
(g) The Borrowers shall repay to each Bank which
has made a Money Market Loan on the last day of the
Interest Period for such Money Market Loan the then
unpaid principal amount of such Money Market Loan. The
Borrowers may not prepay any Money Market Loan unless
such prepayment is accompanied by payment of amounts
specified in Section 8.06 hereof. Money Market Loans may
not be converted into Loans of a different type.
(h) The Borrowers shall pay interest to each Bank
on the unpaid principal amount of each Money Market Loan
from and including the date of such Money Market Loan to
but excluding the stated maturity date thereof, at the
applicable Money Market Rate for such Money Market Loan
(calculated on the basis of a year of 360 days), payable
on the last day of the Interest Period therefor.
(i) The Borrowers shall not request a Money Market
Loan if, assuming the maximum amount of Money Market
Loans so requested is borrowed as of the date of such
request, (i) the sum of (A) the aggregate principal
balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (B) the aggregate LC Outstandings,
plus (C) the aggregate BA Outstandings of all of the
Banks, plus (D) the aggregate principal balance of all
<PAGE> EX-54
outstanding Money Market Loans, would exceed (ii) the
aggregate Revolving Credit Loan Commitments of all of the
Banks.
(j) The Borrowers and the Banks hereby agree that,
notwithstanding any other provision to the contrary
contained in this Loan Agreement, at the written
direction of the Agent in its sole discretion to the
Borrowers and the Banks, all further requests by the
Borrowers for Money Market Loans shall be made by the
Borrowers to the Banks through the Agent in accordance
with such procedures as shall be prescribed by the Agent
and acceptable to the Borrowers and the Banks.
ARTICLE VIII
Additional Provisions Regarding
Revolving Credit Loans, Term Loans,
Letter of Credit Term Loans, Money Market Loans and
Bankers' Acceptances
8.01 (a) Upon the occurrence and during the continuance of any Event of
Default, the Borrowers, jointly and severally, shall on demand from time to
time pay interest on the principal balance of the Loans and the Money Market
Loans and, to the extent permitted by law, on overdue payments of interest and
any other amounts payable hereunder or under any of the other Loan Documents
up to the date of actual payment (after as well as before judgment):
(i) in the case of principal of or interest on a
Loan, at a rate determined by the Agent to be 3% per
annum plus the rate which would otherwise be payable
under Section 2.04, Section 3.03 or Section 4.04 hereof,
as the case may be;
(ii) in the case of principal of or interest on a
Money Market Loan, at a rate 3% per annum plus the rate
which would otherwise be payable under Section 7.01(h)
hereof with respect to such Money Market Loan; and
(iii) in the case of any other amount payable
hereunder or under any of the other Loan Documents (other
than amounts referred to in clause (i) or (ii) above), at
a rate 3% per annum plus the Prime Rate.
(b) In the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a Eurodollar Loan,
any Bank shall have determined that dollar deposits in the amount of the
principal amount of and/or for the Interest Period for such Eurodollar Loan
are not generally available to such Bank in the London Interbank Market, or
that the rate at which such dollar deposits are being offered will not
adequately and fairly reflect the cost of such Bank of making or maintaining
the principal amount of such Eurodollar Loan during such Interest Period, or
reasonable means do not exist for ascertaining the LIBOR Base Rate for such
Eurodollar Loan for such Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Agent and each other Bank, and any
request by the Borrowers for a Eurodollar Loan or for conversion to or
maintenance of a Eurodollar Loan pursuant to Section 2.02, 3.01 or 8.02 hereof
<PAGE> EX-55
shall be deemed a request for a Prime Loan. After such notice shall have been
given and until the circumstances giving rise to such notice no longer exist,
each request for a Eurodollar Loan in such principal amount and/or for
such Interest Period shall be deemed to be a request for a Prime Loan. Each
determination by any of the Banks hereunder shall be conclusive absent
manifest error.
(c) In the event, and on each occasion, that on or before the day on
which the CD Base Rate for a CD Loan is to be determined, any Bank shall have
determined that such CD Base Rate for such CD Loan for the related Interest
Period cannot be ascertained for any reason, or if any Bank shall determine
that the CD Base Rate for such CD Loan will not adequately and fairly reflect
the cost to such Bank of making or maintaining the principal amount of such CD
Loan during the related Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Agent and each other Bank, and any
request by the Borrowers for a CD Loan or for conversion to or maintenance of
a CD Loan pursuant to Section 2.02, 3.01 or 8.02 hereof shall be deemed to be
a request for a Prime Loan. After such notice shall have been given and until
the circumstances giving rise to such notice no longer exist, each request for
a CD Loan in such principal amount and/or for such Interest Period shall be
deemed to be a request for a Prime Loan. Each determination by any of the
Banks hereunder shall be conclusive absent manifest error.
8.02 The Borrowers shall have the right, at any time, upon prior
written, telefax or telephonic notice to the Agent (which notice shall be
irrevocable and, to be effective, must be received by the Agent not later than
10:00 a.m., Charlotte, North Carolina time, in the case of Prime Loans, on the
Business Day of any conversion, in the case of CD Loans, on the second
Business Day preceding the date of any continuation or conversion, and in the
case of Eurodollar Loans, on the third Business Day preceding the date of any
continuation or conversion), (i) to continue any CD Loan or Eurodollar Loan or
portion thereof into a subsequent Interest Period and (ii) to convert any Loan
(but not a Money Market Loan) or portion thereof into a Loan (but not a Money
Market Loan) of a different type, subject to the following:
(a) no Event of Default shall have occurred and be
continuing at the time of such continuation or
conversion, and the representations and warranties set
forth in Article XI hereof shall be true and correct in
all material respects on and as of the date of such
continuation or conversion with the same effect as though
such representations and warranties had been made on and
as of such date, except to the extent that such
representations and warranties expressly relate to an
earlier date;
(b) if less than all Loans at the time outstanding
shall be continued or converted, such continuation or
conversion shall be made pro rata among the Banks in
accordance with the respective principal amounts of the
Loans held by the Banks immediately prior to such
continuation or conversion and the notice given to the
Banks by the Borrowers shall specify the aggregate amount
of Loans to be continued or converted;
<PAGE> EX-56
(c) in the case of a continuation or conversion of
less than all Loans, the aggregate principal amount of
Loans continued or converted shall not be less than
$1,500,000.00 or in an integral multiple of $100,000.00
in excess thereof;
(d) each conversion shall be effected by each Bank
by applying the proceeds of the new Prime Loan,
Eurodollar Loan or CD Loan, as the case may be, to the
Loan (or portion thereof) being converted, and accrued
interest on the Eurodollar Loan or CD Loan (or portion
thereof) being converted shall be paid by the Borrowers
at the time of conversion;
(e) if the new Loan made in respect of a conversion
shall be a Eurodollar or a CD Loan, the first Interest
Period with respect thereto shall commence on the date of
conversion;
(f) no Revolving Credit Loan may be converted to a
Eurodollar Loan or a CD Loan less than one (1) month or
thirty (30) days, respectively, before the Termination
Date and no Term Loan or Letter of Credit Term Loan may
be converted to a Eurodollar Loan or a CD Loan less than
one (1) month or thirty (30) days, respectively, before
the Maturity Date;
(g) any portion of a Eurodollar Loan or a CD Loan
required to be repaid on any installment repayment date
of a Term Loan or a Letter of Credit Term Loan which
installment repayment date occurs less than one (1) month
or thirty (30) days, respectively, after the end of the
then current Interest Period applicable to such
Eurodollar Loan or CD Loan shall be automatically
converted after the end of such Interest Period to a
Prime Loan;
(h) no Interest Period shall be selected by the
Borrowers for a Loan converted to or continued as a
Eurodollar Loan or a CD Loan if such Interest Period is
not available to the Borrowers pursuant to the terms of
the definition of "Interest Period" set forth in Section
1.01 and/or Section 8.01(b) or (c) hereof, as the case
may be;
(i) a Eurodollar Loan or a CD Loan may be converted
to another type of Loan only on the last day of an
Interest Period;
(j) each request for a Eurodollar Loan or a CD Loan
or a continuation thereof which shall fail to state an
applicable Interest Period shall be deemed to be a
request for an Interest Period of a thirty (30) day
duration with respect to a CD Loan and a one (1) month
duration with respect to a Eurodollar Loan;
<PAGE> EX-57
(k) Money Market Loans may not be converted into
Loans of any type and Loans may not be converted into
Money Market Loans; and
(l) no more than nine separate CD Loans or nine
separate Eurodollar Loans or nine separate CD Loans,
Eurodollar Loans and Bankers' Acceptances shall be
outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing, (i) Loans
made ratably by the Banks pursuant to a discrete
borrowing request shall be considered a single Loan, (ii)
Loans of any single type having different Interest
Periods, regardless of whether they commence or expire on
the same date, shall be considered separate Loans and
(iii) Bankers' Acceptances created ratably by the Banks
pursuant to a discrete bankers' acceptance request shall
be considered a single Bankers' Acceptance).
In the event that the Borrowers shall not give notice to continue any
Eurodollar Loan or CD Loan into a subsequent Interest Period or convert any
such Loan into a Loan of the other type, such Loan (unless repaid) shall
automatically become a Prime Loan at the expiration of the then current
Interest Period.
8.03 (a) The Borrowers shall have the right at any time and from time to
time to prepay any Prime Loan, in whole or in part, without premium or
penalty, upon prior written, telefax or telephonic notice to the Agent no
later than 10:00 a.m., Charlotte, North Carolina time, on the Business Day of
the proposed prepayment; provided, however, that each such partial prepayment
shall be in the aggregate principal amount of at least $1,500,000.00 (or in an
integral multiple of $100,000.00 in excess thereof) or the balance of such
Loan, if less.
(b) The Borrowers shall have the right to prepay any Eurodollar Loan, in
whole or in part, upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent; provided, however, that (i) each such partial
prepayment shall be in the aggregate principal amount of at least
$1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and
(ii) no such prepayment made before the last day of the Interest Period in
effect for such Loan shall be permitted unless accompanied by payment of
amounts specified in Section 8.06 hereof.
(c) The Borrowers shall have the right to prepay any CD Loan, in whole
or in part upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent; provided, however, that (i) each such partial
prepayment shall be in the aggregate principal amount of at least
$1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and
(ii) no such prepayment made before the last day of the Interest Period in
effect for such Loan shall be permitted unless accompanied by payment of
amounts specified in Section 8.06 hereof.
(d) The Borrowers may not prepay any Bankers' Acceptance or Money Market
Loan unless such prepayment is accompanied by payment of amounts specified in
Section 8.06 hereof.
<PAGE> EX-58
(e) Each notice of prepayment shall specify the prepayment date and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Loan by the amount stated therein. All prepayments
under this Section shall be shared pro rata by the Banks (except in the case
of prepayment of a Money Market Loan) and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment.
Amounts prepaid under the Revolving Credit Notes pursuant to this Section
prior to the Termination Date shall be available to be reborrowed from the
Banks under this Loan Agreement in accordance with the terms hereof. Amounts
of Term Loans prepaid may not be reborrowed. All partial prepayments of Term
Loans shall be applied to installments of principal in the inverse order of
maturity. All partial prepayments of Letter of Credit Term Loans shall be
applied to installments of principal thereof in the inverse order of maturity.
8.04 (a) The cost to any Bank of making or maintaining any Eurodollar
Loans or CD Loans, of issuing or maintaining, or participating in, any Letters
of Credit, of creating or maintaining any Bankers' Acceptances or of
maintaining its Revolving Credit Loan Commitment may fluctuate as a result of
imposition hereafter of, or changes hereafter in, the reserve requirements
promulgated by the Board of Governors of the Federal Reserve System of the
United States. Accordingly, the Borrowers shall pay to each Bank such
additional amount or amounts as will compensate it for the effect of such
reserve requirements applicable to it, which determination shall be conclusive
absent manifest error. For purposes hereof, the aforesaid reserve
requirements shall include any reserve on Eurocurrency Liabilities as defined
by Regulation D of said Board at the ratios provided in such Regulation D from
time to time. It is hereby agreed that Eurodollar Loans made hereunder
shall be deemed to constitute Eurocurrency Liabilities (as defined in such
Regulation D). Such Bank shall promptly refund any amounts received by it
pursuant to this Section 8.04(a) that were erroneously billed to the Borrowers
together with interest thereon at the Federal Funds Rate. The provisions of
this subsection shall survive termination of this Loan Agreement.
(b) In the event that after the date hereof any change in applicable law
or regulations or in the interpretation or administration thereof (including,
without limitation, any request, guideline or policy not having the force of
law) by any authority charged with the administration or interpretation
thereof shall occur which shall:
(i) subject any Bank to any tax with respect to any
Eurodollar Loan, CD Loan, Money Market Loan, Letter of
Credit (including participations therein) or Bankers'
Acceptance (other than any tax on the overall net income
of such Bank imposed by the United States of America or
by the jurisdiction in which such Bank has its principal
office or political subdivision or taxing authority
therein); or
(ii) change the basis of taxation of any payment to
any Bank of principal of or interest on any Eurodollar
Loan, CD Loan, Money Market Loan, LC Reimbursement
Obligation or BA Reimbursement Obligation or fees and
other amounts payable hereunder, or any combination of
the foregoing; or
<PAGE> EX-59
(iii) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held
by, deposits with or for the account of or loans or
commitments by an office of such Bank as it relates to
Eurodollar Loans, CD Loans, Money Market Loans, Letters
of Credit (including participations therein), Bankers'
Acceptances or the Revolving Credit Loan Commitment of
such Bank; or
(iv) impose upon such Bank any other condition with
respect to the Eurodollar Loans, CD Loans, Money Market
Loans, Letters of Credit (including participations
therein) or Bankers' Acceptances, or upon such Bank any
other condition with respect to this Loan Agreement as it
relates to Eurodollar Loans, CD Loans, Money Market
Loans, Letters of Credit (including participations
therein), Bankers' Acceptances or the Revolving Credit
Loan Commitment of such Bank;
and the result of any of the foregoing shall be to increase the cost to such
Bank of making or maintaining any Eurodollar Loan, CD Loan or Money Market
Loan, of issuing or maintaining, or participating in, any Letter of Credit, of
creating or maintaining any Bankers' Acceptance hereunder or of maintaining
its Revolving Credit Loan Commitment or to reduce the amount of any payment
(whether of principal, interest or otherwise) received or receivable by such
Bank, or to require such Bank to make any payment in connection with any
Eurodollar Loan, CD Loan, Money Market Loan, Letter of Credit (or
participation therein) or Bankers' Acceptance, in each case by or in an amount
which such Bank in its sole reasonable judgment shall deem material, then and
in each such case the Borrowers agree to pay to such Bank, as provided in
paragraph (c) below (but without duplication of the payments required under
paragraph (a) above), such amounts as shall be necessary to compensate such
Bank for such cost, reduction or payment; provided, however, that if any Bank
shall request compensation under this Section 8.04(b) with respect to any
Eurodollar Loan or CD Loan, the Borrowers may, at their option and upon
written notice to the Banks, elect to convert such Loan of such Bank into a
Prime Loan upon the payment by the Borrowers of the increased costs described
above incurred prior to such conversion and any amount owing in respect of
Section 8.06 hereof, it being understood that (A) for purposes of Sections
8.02 and 8.03 hereof, such Prime Loan, until the expiration of the Interest
Period of the Eurodollar Loan or CD Loan so converted into a Prime Loan, shall
be subject to prepayment or conversion only at such times and on such
conditions as the Loan from which it was converted and (B) upon such increased
costs being eliminated, or reduced by an amount deemed sufficient by the
Borrowers, such Prime Loan may be reconverted into a Eurodollar Loan or CD
Loan, as the case may be, having an Interest Period expiring on the same date
as the Eurodollar Loan or CD Loan previously converted into such Prime Loan;
provided further, however, that if the result of any the foregoing shall be to
decrease the cost to any Bank of making or maintaining any Eurodollar Loan, CD
Loan or Money Market Loan, of issuing or maintaining or participating in any
Letter of Credit or of creating or maintaining any Bankers' Acceptance
hereunder by a material amount, then such Bank will credit to the Borrowers an
amount equal to such decreased costs. Promptly after actual notice to any
Bank that a change referred to in this paragraph has occurred, such Bank will
give notice of such occurrence to the Borrowers and the Agent. Each Bank
agrees that it will promptly refund any amounts received by it pursuant to
this Section 8.04(b) that were erroneously billed to the Borrowers together
with interest thereon at the Federal Funds Rate. The provisions of this
<PAGE> EX-60
subsection shall survive termination of this Loan Agreement.
(c) Each Bank shall promptly deliver to the Borrowers from time to time
one or more certificates setting forth the amounts due to such Bank under
paragraph (a) or (b) above, the reserve requirements or changes as a result of
which such amounts are due and the manner of computing such amounts. Each
such certificate shall be conclusive in the absence of manifest error. The
Borrowers shall pay to each Bank the amounts shown as due on any such
certificate within 10 days after their receipt of the same. No failure on the
part of any Bank to demand compensation under paragraph (a) or (b) above on
any one occasion shall constitute a waiver of its right to demand such
compensation on any other occasion with respect to any other event. The
protection of this Section shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of any law,
regulation or other condition which shall give rise to any demand by such Bank
for compensation hereunder; provided, however, if such law, regulation or
other condition giving rise to such demand is determined to be invalid or
inapplicable, the Bank will promptly refund any amount erroneously billed to
the Borrowers together with interest thereon at the Federal Funds Rate.
8.05 (a) Notwithstanding anything to the contrary contained elsewhere
in this Loan Agreement, if any change after the date hereof in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof shall make it unlawful for a Bank to
make or maintain a Eurodollar Loan or to effect to its obligations as
contemplated hereby with respect to a Eurodollar Loan, then, by written notice
to the Borrowers, such Bank may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder, whereupon the
Borrowers shall be prohibited from requesting Eurodollar
Loans from such Bank hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to Prime Loans, whereupon all of
such Eurodollar Loans shall be automatically converted to
Prime Loans as of the effective date of such notice as
provided in paragraph (b) below (notwithstanding the
provisions of Section 8.07 hereof but subject to the
provisions of Section 8.06 hereof).
(b) For purposes of this Section 8.05, a notice to the Borrowers by any
Bank pursuant to paragraph (a) above shall be effective with respect to
outstanding Eurodollar Loans, if lawful, on the last day of the then current
Interest Period; in all other cases, such notice shall be effective on the
date of receipt by the Borrowers.
8.06 The Borrowers shall reimburse each Bank on demand for any actual
out-of-pocket loss incurred by it in the reemployment of the funds released by
any prepayment or conversion of any Eurodollar Loan, CD Loan or Money Market
Loan required or permitted by any other provision of this Loan Agreement if
such Loan or Money Market Loan is prepaid or converted other than on the last
day of any Interest Period for such Loan or Money Market Loan or upon any
failure by the Borrowers to borrow or convert or continue any Loan or Money
Market Loan or cause creation of Bankers' Acceptance after giving notice
thereof. If any prepayment hereunder makes it necessary to apply any
installment payment on a Term Note or Letter of Credit Term Note to a
<PAGE> EX-61
Eurodollar Loan or CD Loan with an Interest Period extending beyond the date
of such installment payment, the Borrowers shall reimburse each Bank upon
demand for any actual out-of-pocket loss incurred or to be incurred by such
Bank (determined in accordance with the immediately preceding sentence) in the
reemployment of funds realized on such installment payment and applied to such
Eurodollar Loan or CD Loan, as the case may be. Determinations by any Bank
under this Section 8.06 shall be conclusive absent manifest error. The
provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of this Loan Agreement.
8.07 Except as required in connection with the payment of interest on
Revolving Credit Loans and Letter of Credit Term Loans made in connection with
drawings under Letters of Credit as described in Section 5.01(d) hereof, all
payments and prepayments of principal, interest and fees (other than the
agent's fee payable to the Agent and other than the fees and other amounts
payable to the LC Agent pursuant to Section 5.01(f)(iii) hereof) in respect of
the Loans, the Letters of Credit and the Bankers' Acceptances shall be made
pro rata among the Banks in accordance with the then outstanding principal
amount of the Notes (or in accordance with the Revolving Credit Loan
Commitments if there are no amounts then outstanding under the Notes). Except
as otherwise expressly provided in Article VII hereof, all payments by the
Borrowers hereunder (other than payments in respect of Money Market Loans)
and under the Notes shall be made to the Agent at its offices at Charlotte,
North Carolina, for the account of each Bank in dollars in Federal or other
immediately available funds by 11:00 a.m. Charlotte, North Carolina time, on
the date on which such payment shall be due. All payments received by the
Agent for the account of a Bank shall be promptly on the same day remitted by
the Agent to such Bank. Upon receipt by a Bank of more than its pro rata
share of any such principal or interest payment (after taking into account any
adjustment necessary to compensate the LC Agent for the situation referred to
in the first sentence of this Section 8.07), whether voluntary or involuntary,
or of any proceeds of collateral securing the Loans, it is hereby agreed among
the Banks and the Borrowers that the Bank receiving such excess payment or
proceeds (the "Receiving Bank") shall be obligated to pay to the other Banks
for application to such Banks' Notes and/or BA Reimbursement Obligations, an
amount necessary to reduce the outstanding principal and interest balances on
such Banks' Notes and/or BA Reimbursement Obligations to the balances that
would be outstanding on such Banks' Notes and/or BA Reimbursement Obligations
if the Receiving Bank had not received more than its pro rata share of
such payment; provided, however, that in the event any amount paid by any
Receiving Bank to any other Bank pursuant to the immediately preceding
sentence is rescinded or must otherwise be returned by the Receiving Bank,
each other Bank shall, upon request of the Receiving Bank, repay to the
Receiving Bank the amount so paid by the Receiving Bank to such Bank, with
interest for the period commencing on date such payment is returned by the
Receiving Bank until the date the Receiving Bank receives such repayment at
the Federal Funds Rate. Interest in respect of any Loan or Money Market Loan
hereunder shall accrue from and including the date of such Loan or Money
Market Loan to but excluding the date on which such Loan or Money Market Loan
is paid in full. All payments of principal and interest under the Money
Market Notes shall be in accordance with the terms of Article VII hereof.
Notwithstanding anything to the contrary contained in this Section 8.07 or
elsewhere in this Loan Agreement or any other of the Loan Documents, each Bank
agrees with respect to all payments, whether voluntary or involuntary, on
account of any Money Market Loan of such Bank received by such Bank during any
period following the occurrence of an event or condition which is, or upon
lapse of a cure period specified in this Loan Agreement would constitute, an
Event of Default and until such event or condition shall have been cured (as
<PAGE> EX-62
determined by the Agent), that such payments shall be shared pro rata among
the Banks in accordance with the then outstanding principal amounts of the
Notes and the Money Market Notes and each Bank's pro rata share of the LC
Outstandings and BA Outstandings at such time. The portion of any such
payment referred to in the preceding sentence required pursuant to such
preceding sentence to be allocated to the aggregate undrawn amount of issued
and outstanding Letters of Credit and/or to the aggregate unadvanced amount of
outstanding Bankers' Acceptances shall be paid to the Agent and, subject to
the immediately succeeding sentence, held by the Agent as cash collateral in
an interest bearing account for the benefit of the Banks until such time, if
ever, as the event or condition referred to above shall have been cured (as
determined by the Agent), at which time such proceeds shall be distributed by
the Agent to the Banks on a pro rata basis based on the then outstanding
principal amounts of the Notes and the Money Market Notes. If, at any time
that the Agent is holding any such proceeds on account of issued and
outstanding Letters of Credit and/or outstanding Bankers' Acceptances, any
amounts are drawn under any such Letter of Credit or any amounts are advanced
under any such Bankers' Acceptances, then the Agent shall distribute the
proceeds so held by the Agent to the extent of such drawing to the Banks based
on the pro rata shares of the Banks in the related LC Reimbursement Obligation
or BA Reimbursement Obligations, as the case may be. To the extent that
aggregate proceeds held by the Agent on account of issued and outstanding
Letters of Credit and/or outstanding Bankers' Acceptances at any time exceed
the aggregate undrawn amount of Letters of Credit and the unadvanced amount of
Bankers' Acceptances at such time, the Agent shall distribute the proceeds so
held by the Agent to the extent of such excess to the Banks on a pro rata
basis based on the then outstanding principal amounts of the Notes and the
Money Market Notes. All payments and prepayments of principal, interest and
fees in respect of the Loans, the Money Market Loans, the Letters of Credit
and the Bankers' Acceptances shall be without deduction for on account of
any present or future taxes, duties or other charges levied or imposed by the
nation of Canada or any political subdivision or taxing authority thereof.
8.08 In the event that any Bank shall have determined that the adoption
hereafter of or any change hereafter in any applicable law, rule, regulation
or guideline regarding capital adequacy, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
by any court, or compliance by such Bank (or any lending office of such Bank)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's capital or on the capital of such Bank's holding company as a
consequence of its obligations hereunder to a level below that which such Bank
or such Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies or
the policies of such Bank's holding company, as the case may be, with respect
to capital adequacy) by an amount deemed by such Bank to be material, then
from time to time the Borrowers shall pay to such Bank such additional amount
or amounts as will compensate such Bank or such Bank's holding company for any
such reduction suffered. Within a reasonable time after making a request for
such additional amount hereunder, such Bank will furnish to the Borrowers a
statement certifying the amount of such reduction and describing the event
giving rise to such reduction, which determination shall be conclusive absent
manifest error. Failure on the part of such Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not
constitute a waiver of such Bank's rights to demand compensation for any
<PAGE> EX-63
increased costs or reduction in amounts received or receivable or reduction in
return on capital in such period or in any other period. The protection of
this Section 8.08 shall be available to the Bank regardless of any possible
conflict or invalidity or inapplicability of the law, regulation or condition
which shall have been impaired. The provisions of this Section shall remain
operative and in full force and effect regardless of the expiration of this
Loan Agreement.
8.09 Notwithstanding anything to the contrary set forth in this Loan
Agreement, the Notes, the Money Market Notes or any other of the Loan
Documents, if at any time the credit facilities contemplated hereby shall be
classified (i) by the Agent or the Majority Banks in its or their reasonable
discretion based on criteria established by any government agency involved in
the regulation or oversight of the banking industry or (ii) by any
governmental authority, central bank or comparable agency charged with the
administration thereof (including, without limitation, any retroactive
classification based on financial information subsequently made available to
the Agent and the Banks or any such governmental authority, central bank or
comparable agency) as a "highly leveraged transaction" or any term substituted
therefor (a "HLT Classification"), then, unless and until such HLT
Classification shall have been terminated by the Agent or the Majority Banks
or such other entity upon written notice from the Agent to the Borrowers and
the Banks thereof, (A) commencing with the first day of the fiscal quarter
immediately succeeding the fiscal quarter with respect to which the
determination of such HLT Classification first becomes applicable, (1) the
Applicable Margin for all Loans and the applicable interest rates under the
Money Market Notes (including without limitation the Applicable Margin
for Loans then outstanding and the interest rates on Money Market Loans then
outstanding) shall be increased by one-half of one percent (1/2%), (2) the
standby Letter of Credit fee described in Section 5.01(f)(i) hereof shall be
increased to one and one-half of one percent (1 1/2%) and the documentary
Letter of Credit fee described in Section 5.01(f)(ii)(B) hereof shall be
increased to twenty-five (25) basis points and (3) the applicable BA
Commission shall be increased by one-half of one percent (1/2%) and (B)
commencing with the first day of the third fiscal quarter immediately
succeeding the fiscal quarter with respect to which the determination of such
HLT Classification first becomes applicable, the Applicable Margin for all
Loans, the applicable interest rates under the Money Market Notes (including
without limitation the Applicable Margin for Loans then outstanding and the
interest rates on Money Market Loans then outstanding), the applicable BA
Commission and the standby Letter of Credit fee described in Section
5.01(f)(i) hereof shall be increased by the amount set forth in clause (A)
above plus one-fourth of one percent (1/4%). Each Bank shall credit against
the additional interest payable with respect to its Loans and Money Market
Loans pursuant to the terms of the preceding sentence any amounts previously
paid to such Bank by the Borrowers pursuant to Section 8.08 hereof with
respect to the related HLT Classification. The Agent shall promptly notify
the Borrowers and the Banks of any HLT Classification.
8.10 Notwithstanding any other provision to the contrary contained in
this Loan Agreement, the Notes or the Money Market Notes, the liability of
Holdings with respect to the Borrowers' Obligations shall not exceed Holdings'
Maximum Obligated Amount as determined at the earlier of the date of the
commencement of a case under the U.S. Bankruptcy Code in which Holdings is a
debtor or the date enforcement is sought against Holdings under Section 14.01
hereof with respect to the Borrowers' Obligations.
<PAGE> EX-64
ARTICLE IX
Conditions Precedent as of Closing Date
9.01 The obligations as of the Closing Date of the Banks to make any
Loans or Money Market Loans or to create any Bankers' Acceptances and of the
LC Agent to issue Letters of Credit, are subject to the conditions precedent
that the Agent shall have received on or before such day the following, in
form and substance satisfactory to the Agent:
(a) fully executed copies of this Loan Agreement
(including exhibits), the Notes and the Money Market Notes;
(b) a fully executed copy of the Guaranty Agreement;
(c) resolutions of the directors of each Credit Party
and the shareholders of each Credit Party (other than Airgas)
certified by an officer of such Credit Party as of the Closing
Date, approving and adopting the documents described in
subparagraphs (a) and (b) above to be executed by each such
Credit Party and authorizing the execution, delivery and
performance thereof;
(d) a certificate of the corporate secretary or an
assistant secretary of each Credit Party certifying the names
and true signatures of the officers of such Credit Party
authorized to sign the documents described in
subparagraphs (a) and (b) above on behalf of such Credit Party
and the other documents to be delivered hereunder;
(e) (i) the charter documents of Industrial Gases of
Wichita, Inc., The Jimmie Jones Company, Range Arc, Inc. and
Westwind Company, certified as of the Closing Date by the
Secretary of State of each such corporation's state of
incorporation and (ii) a certificate of the corporate
secretary or an assistant secretary of each other Credit
Party, certifying that the charter documents and bylaws of
such Credit Party previously delivered to the Agent have not
been amended through the Closing Date except as provided
therein;
(f) certificates of good standing for each of Industrial
Gases of Wichita, Inc., The Jimmie Jones Company, Range Arc,
Inc. and Westwind Company, issued as of a recent date by the
applicable jurisdiction of incorporation and each other
jurisdiction where any such corporation by the nature of its
business, is required to qualify as a foreign corporation;
(g) the favorable opinion of Messrs. McCausland, Keen &
Buckman, counsel to the Credit Parties, substantially in the
form of Exhibit J hereto;
(h) the Agent shall have received a facility fee of
$125,000, to be shared ratably by the Banks based on their
respective Revolving Credit Loan Commitments; and
(i) such other information and documents as the Agent
may reasonably request.
<PAGE> EX-65
ARTICLE X
Conditions of Lending
Except with respect to Revolving Credit Loans and Letter of Credit Term
Loans made pursuant to the terms of Section 5.01(d) or 6.01(d) hereof, the
obligations of the Banks to make any Loans or Money Market Loans or to create
any Bankers' Acceptances and of the LC Agent to issue any Letters of Credit,
are subject to the satisfaction of the conditions precedent set forth in
Article IX hereof on the Closing Date and to the satisfaction of the following
further conditions:
10.01 In the case of each Loan or Money Market Loan to be made hereunder
(other than a Revolving Credit Loan or a Letter of Credit Term Loan made
pursuant to the terms of Section 5.01(d) or 6.01(d) hereof), each Letter of
Credit to be issued hereunder and each Bankers' Acceptance to be created
hereunder:
(a) proper notice of such Loan, Letter of Credit or
Bankers' Acceptance, as the case may be, shall have been
given in accordance with Section 2.02(c), Section
3.01(c), Section 5.01(b), Section 6.01(c) or Section
7.01(a)-(c) hereof, as applicable;
(b) the representations and warranties set forth in
Article XI hereof shall be true and correct in all
material respects on and as of the date of such Loan,
Money Market Loan, Letter of Credit or Bankers'
Acceptance, as the case may be, with the same effect as
though such representations and warranties had been made
on and as of such date, except to the extent that such
representations and warranties expressly relate to an
earlier date; and
(c) at the time of and immediately after giving
effect to each such Loan (other than Revolving Credit
Loans and Letter of Credit Term Loans made pursuant to
the terms of Section 5.01(d) or 6.01(d) hereof), Money
Market Loan, Letter of Credit or Bankers' Acceptance, as
the case may be, no Event of Default, nor any event which
upon notice or lapse of time or both would constitute an
Event of Default, shall have occurred and be continuing.
10.02 In the case of each Revolving Credit Loan to be made hereunder,
each Money Market Loan to be made hereunder, each Letter of Credit to be
issued hereunder and each Bankers' Acceptance to be created hereunder,
immediately after giving effect to such Revolving Credit Loan, Money Market
Loan, Letter of Credit or Bankers' Acceptance, as the case may be, (i) the sum
of (A) the aggregate principal balance of all outstanding Revolving Credit
Loans made by all of the Banks, plus (B) the aggregate LC Outstandings, plus
(C) the aggregate BA Outstandings of all of the Banks, plus (D) the aggregate
principal balance of all outstanding Money Market Loans, shall not exceed (ii)
the aggregate Revolving Credit Loan Commitments of all of the Banks.
<PAGE> EX-66
Each borrowing hereunder, each issuance of a Letter of Credit hereunder
and each creation of a Bankers' Acceptance hereunder shall be deemed to be a
representation and warranty by each of the Borrowers on the date of such
borrowing, issuance or creation, as the case may be, as to the matters
specified in Sections 10.01(b) and (c) hereof and each borrowing hereunder
that is a Revolving Credit Loan or a Money Market Loan, each issuance of a
Letter of Credit hereunder and each creation of a Bankers' Acceptance
hereunder also shall be deemed to be a representation and warranty by each of
the Borrowers on the date of such borrowing, issuance or creation, as the case
may be, as to the matters specified in Section 10.02 hereof.
ARTICLE XI
Representations and Warranties
11.01 Each of the Borrowers represents and warrants that:
(a) each of the Credit Parties is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and is duly authorized and qualified to carry on its business in the manner
now being conducted by it in states in which failure to so qualify would or
might have a material adverse effect on the business or operations of such
Credit Party;
(b) each of the Credit Parties has the legal power and authority to own
its properties and assets and to carry on its businesses as now being
conducted and as contemplated by this Loan Agreement and the other Loan
Documents;
(c) each of the Credit Parties has the power and authority to execute,
deliver and perform the Loan Documents to which such Credit Party is a party;
(d) when executed and delivered, the Loan Documents will be valid and
binding obligations of each Credit Party executing such Loan Documents and
will be enforceable in accordance with their respective terms;
(e) the execution, delivery and performance of the Loan Documents:
(i) have been duly authorized by all requisite
corporate action of each Credit Party executing such Loan
Documents required for the lawful creation and issuance
thereof;
(ii) do not violate any material provision of law,
any order of any court or other agency of government or
the corporate charter, certificate of incorporation or
by-laws of any Credit Party, or any provisions of any
indenture, agreement or other instrument to which such
Credit Party or its properties or assets are or will
become bound;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default or an event
which, upon notice or lapse of time, or both, would
constitute such an event of default under any indenture,
agreement or other instrument to which such Credit Party
is a party;
<PAGE> EX-67
(iv) do not and will not result in the creation of
any lien on any assets of any Credit Party;
(f) except as set forth in Exhibit K attached hereto and except for
minor defects in title that do not reduce in any material respect the value of
such property, each of Airgas and its Subsidiaries has good and marketable
title in fee simple to all of its real property and good title to all of its
other property, and none of such property is subject to any mortgage, pledge,
lien, charge or other encumbrance of any nature whatsoever except as may
be permitted hereunder or contemplated hereby;
(g) all of the direct and indirect Subsidiaries of Airgas as of the
Closing Date are set forth in Exhibit L attached hereto;
(h) except as set forth in Exhibit M attached hereto, neither Airgas nor
any of its Subsidiaries owns any interest in any Person;
(i) the audited consolidated balance sheet, income statement and
statement of cash flows of Airgas and its Subsidiaries prepared as of March
31, 1994, copies of each of which have been furnished to each Bank, fairly
present the assets, liabilities and financial condition of Airgas and its
Subsidiaries as at the date thereof, all in accordance with Generally Accepted
Accounting Principles, and since such date to and including the date of this
Loan Agreement there has been no material adverse change in such condition or
in the operations of Airgas and its Subsidiaries taken as a whole;
(j) except as set forth in Exhibit N attached hereto, there is no
pending or, to either Borrower's knowledge following due inquiry, threatened
action or proceeding affecting Airgas or any of its Subsidiaries before any
court, governmental agency or arbitrator, specifically including without
limitation any federal, state or local environmental agency, (i) which would,
if adversely determined, materially adversely affect the financial condition
or operations of Airgas and its Subsidiaries taken as a whole, or (ii)
challenging the execution, delivery, validity or enforceability of any of the
Loan Documents;
(k) each of Airgas and its Subsidiaries is in material compliance with
all statutes, governmental regulations, and applicable judgments, specifically
including without limitation all federal, state, and local requirements
relating to protection of health or the environment in connection with the
operation of such corporation's business;
(l) during the time in which Airgas or any of its Subsidiaries has owned
any real property, no Hazardous Materials were disposed of on, under or about
such real property in such a manner as would give rise to a liability which
would have a material adverse effect on Airgas and its Subsidiaries taken as a
whole, and that, to the extent that Airgas or any of its Subsidiaries
generated, stored or transported Hazardous Materials, such activities were
done in such a manner as would not give rise to a liability for failure to
comply with any applicable federal, state and local laws, ordinances and
regulations which would have a material adverse effect on Airgas and its
Subsidiaries taken as a whole. For purposes hereof, "Hazardous Materials"
shall be defined as "hazardous substances" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.; Hazardous Materials Transportation
Act, 42 U.S.C. Section 6901 et seq.; and thosesubstances defined as "hazardous
wastes" in any state or local laws, rules or regulations applicable to Airgas
<PAGE> EX-68
or any of its Subsidiaries;
(m) none of Airgas or its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Loan or Money
Market Loan nor any Letter of Credit or Bankers' Acceptance will be used
whether directly or indirectly, incidentally or ultimately (i) to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock, or to refund indebtedness incurred
for such purpose, or (ii) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the regulations of the Board of
Governors of the Federal Reserve System, including without limitation
Regulation G, U, T or X thereof. If requested by the Agent, each Borrower
agrees that it will (and will cause each of its Subsidiaries to) furnish to
the Banks a statement in conformity with the requirements of Federal
Reserve Form U-1 referred to in said Regulation U;
(n) each of Airgas and its Subsidiaries possesses all necessary patents,
licenses, trademarks, trademark rights, tradenames, tradename rights and
copyrights to conduct its business without known conflict with any patent,
license, trademark, tradename or copyrights of any other Person;
(o) each of Airgas and its Subsidiaries is in compliance with the
Multi-Employer Pension Plan Amendments Act of 1980 ("MEPP") and has no
liability from pension contributions pursuant to MEPP;
(p) none of Airgas or its Subsidiaries is an "investment company" as
that term is defined in, or otherwise subject to regulation under, the
Investment Company Act of 1940. None of Airgas or its Subsidiaries is a
"Holding Company" as that term is defined in, and is not otherwise subject to
regulation under, the Public Utility Holding Company Act of 1935;
(q) none of Airgas or its Subsidiaries is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to corporate
restrictions materially adversely affecting its business,
properties or assets, operation or condition (financial
or otherwise); or
(ii) in default (except where waived) in the
performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any
agreement or instrument to which such corporation is a
party, which default would or might have a material
adverse effect on the business, properties or assets of
Airgas and its Subsidiaries as a whole;
(r) each of Airgas and its Subsidiaries has filed all United States
federal tax returns and all other tax returns that are required to be filed
and has paid all taxes due pursuant to said returns or pursuant to any
assessment received by such corporation, except such taxes, if any, as are
being contested in good faith and as to which adequate reserves in accordance
with Generally Accepted Accounting Principles have been provided. No tax
liens have been filed, and no claims are being asserted with respect to any
such taxes. The charges, accruals and reserves on the books of each of
Airgas and its Subsidiaries in respect of any taxes or other governmental
<PAGE> EX-69
charges are reasonably adequate;
(s) (i) each of Airgas and its Subsidiaries is in compliance in all
material respects with those provisions of ERISA and the regulations and
public interpretations thereunder which are applicable to such corporation;
(ii) No Reportable Event (as defined in ERISA) has occurred and is continuing
with respect to any Plan; (iii) no proceedings have been instituted, or, to
the knowledge of the Borrowers, planned, to terminate any Plan or to
cause a trustee to be appointed to administer any Plan; (iv) neither any
Credit Party, any other member of the Controlled Group, nor any duly-appointed
administrator of a Plan has instituted or intends to institute proceedings to
withdraw from any Multiemployer Plan; and (v) each Plan has been maintained
and funded in all material respects with its terms and with the provisions of
ERISA applicable thereto.
(t) the information, exhibits and reports furnished by the Credit
Parties, and each of them, to the Banks in connection with the negotiation of
the Loan Documents did not, taken as a whole, contain any material
misstatement of fact or omit to state a material fact or any fact necessary to
make the statements contained therein not misleading; and
(u) no consent, approval or authorization of, or filing, registration or
qualification with, any governmental agency, authority, instrumentality or
regulatory body on the part of any Credit Party is required in conjunction
with the execution, delivery or performance by the Credit Parties, or for the
validity or enforceability, of the Loan Documents.
ARTICLE XII
Affirmative Covenants
12.01 Each of the Borrowers covenants and agrees with the Banks and the
Agent that, so long as this Loan Agreement shall remain in effect or any
Letter of Credit or Bankers' Acceptance shall be outstanding or the principal
of or interest on any Note, Money Market Note, LC Reimbursement Obligation or
BA Reimbursement Obligation or any other expense or amount payable hereunder
remains unpaid, and until the Revolving Credit Loan Commitments are terminated
and the Banks are no longer obligated to make any Letter of Credit Term Loans,
unless the Majority Banks shall otherwise consent in writing, it will and will
cause each of its Subsidiaries to:
(a) (i) as soon as practical and in any event not later than 90 days
after the end of each fiscal year ending after the Closing Date, deliver to
each of the Banks a financial report of Airgas and all of its Subsidiaries
including a balance sheet of Airgas and all of its Subsidiaries as at the end
of such fiscal year, and the notes thereto, and the related statements of
income and retained earnings and the notes thereto and of cash flows for such
fiscal year, prepared on a consolidated and consolidating basis setting forth
in each case comparative financial statements for the corresponding date or
period in the preceding year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis and containing,
with respect to such consolidated financial reports an unqualified opinion of
KPMG Peat Marwick, or other independent certified public accountants selected
by Airgas and acceptable to the Banks;
(ii) as soon as practical and in any event not later than June
30 of each fiscal year, deliver to each of the Banks projections of profit and
<PAGE> EX-70
loss statements, balance sheets and cash flow reports for Airgas and all of
its Subsidiaries on a consolidated basis for such fiscal year;
(b) as soon as practical and in any event not later than 60 days after
the end of each of the first three quarters of each fiscal year of Airgas
deliver to each of the Banks a financial report of Airgas and all of its
Subsidiaries including a balance sheet of Airgas and all of its Subsidiaries
as at the end of such quarterly period and the related statements of income
and retained earnings and of cash flows for the quarter then ended and for the
period from the beginning of the current fiscal year to the end of such
quarter, prepared on a consolidated and consolidating basis and setting forth
in each case comparative financial statements for the corresponding date or
period in the preceding year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis and certified by
the chief financial officer or other Executive Officer of Airgas (acting for
Airgas and not as an individual) as presenting fairly the financial condition
and the results of operations of Airgas and all of its Subsidiaries;
(c) as soon as practical and in any event not later than 90 days after
the end of any fiscal quarter during which there occurs an acquisition of a
company permitted by Section 13.01(h)(iv) hereof for a purchase price greater
than 10% of Book Net Worth as at the quarter end immediately preceding the
date of such acquisition, to make available to any Bank upon its request
therefor (i) historical financial information consisting of a balance sheet of
such acquired company prepared as of a recent date and income statements of
such company for the two immediately preceding fiscal years and (ii) a
projected income statement of Airgas, its Subsidiaries and the acquired
company, prepared on a consolidated basis, for the twelve-month period
immediately following such acquisition;
(d) together with each delivery of the financial reports required by
Section 12.01(a)(i) and (b) hereof, deliver to each of the Banks a statement
signed by the chief financial officer or other Executive Officer of Airgas
(acting for Airgas and not as an individual) substantially in the form of
Exhibit O hereto, setting forth (i) that, to the best of his knowledge, each
of the Borrowers has kept, observed, performed and fulfilled each and every
agreement (including without limitation any covenant incorporated herein by
reference pursuant to Section 13A.01 hereof) binding on it contained in the
Loan Documents (and containing calculations demonstrating compliance by Airgas
and its Subsidiaries with the financial covenants set forth in Section
13.01(p), (q), (r) and (s) hereof as at such quarter end) and is not at the
time in default in the keeping, observance, performance or fulfillment of any
of the terms, provisions and conditions of any of the Loan Documents, (ii)
a calculation of the Funded Debt Coverage Ratio as at such quarter end and
(iii) that no Event of Default, nor any event, which upon notice or lapse of
time or both, would constitute an Event of Default, has occurred, or if such
Event of Default exists or would occur as the case may be, stating the nature
thereof, the period of existence thereof and what action the Borrowers propose
to take with respect thereto;
(e) promptly upon becoming available, deliver to each Bank a copy of all
financial statements, reports, notices and proxy statements sent by Airgas or
any of its Subsidiaries to stockholders, and a copy of all regular, periodic
and special reports filed by Airgas or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission ("SEC") or
any governmental authority succeeding to any or all of the functions of the
SEC;
<PAGE> EX-71
(f) promptly, from time to time, deliver to the Banks such information
regarding its (and its Subsidiaries') operations, business affairs and
financial condition as the Banks may reasonably request. The Banks are hereby
authorized to deliver a copy of any such financial information delivered
hereunder to the Banks to any regulatory authority having jurisdiction over
any of the Banks pursuant to any request therefor;
(g) use any Bank as its primary depository;
(h) for the purpose of financial reporting maintain its fiscal year as
one ending on March 31;
(i) use the proceeds of the Loans, Money Market Loans and Bankers'
Acceptances for the purposes set forth in RECITAL A hereof;
(j) maintain all properties and assets used or useful in the conduct of
its businesses in good working order and condition and make all needed
repairs, replacements, betterments, improvements, and renewals as are
necessary to conduct its business in accordance with prudent business
practices;
(k) except to the extent otherwise provided in Section 13.01(f) hereof,
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, trademarks, tradenames, material rights,
franchises and licenses;
(l) (i) comply with or contest in good faith all statutes, governmental
regulations and applicable judgments, specifically including without
limitation all federal, state and local environmental laws, rules, and
regulations, and (ii) pay all taxes, assessments, governmental charges, claims
for labor, supplies, rent and any other obligations which, if unpaid, might
become a lien against any of its property except (A) liabilities being
contested in good faith and by appropriate proceedings and against which
reserves in accordance with Generally Accepted Accounting Principles have been
established and (B) taxes that are due but not yet payable;
(m) (i) if the failure to do so would have a material adverse effect on
any Credit Party, conduct and complete all investigations, studies, sampling,
and testing and all remedial, removal, and other actions necessary to clean up
and remove all Hazardous Materials on, from, or affecting its real property
(A) in accordance with all applicable federal, state, and local laws,
regulations, rules, and policies, (B) to the satisfaction of the Banks, and
(C) in accordance with the orders and directives of all federal, state, and
local governmental authorities, and (ii) defend, indemnify, and hold harmless
the Banks, the Agent, their employees, agents, officers, affiliates and
directors, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs, and expenses (including, without
limitation, attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses) of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way related to (A)
the presence, disposal, release, or threatened release of any Hazardous
Materials which are on, from, or affecting the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise in or on its real
property; (B) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to Hazardous
Materials on, from or affecting the soil, water, vegetation, buildings,
personal property, persons, animals, or otherwise in or on its real property;
(C) any lawsuit brought or threatened, settlement reached, or government order
<PAGE> EX-72
relating to Hazardous Materials on, from or affecting the soil, water,
vegetation, buildings, personal property, persons, animals, or otherwise in or
on its real property; and/or (D) any violation of laws, orders, regulations,
requirements, or demands of governmental authorities, or any policies or
requirements of the Banks, which are based upon or in any way related to
Hazardous Materials on, from or affecting the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise in or on its real
property;
(n) defend, indemnify and hold harmless the Banks, the Agent, their
employees, agents, officers, affiliates and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses (including without limitation attorney and consultant fees,
court costs and litigation expenses) of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way related to
any acquisition permitted by Section 13.01(h)(iv), (v) or (vi) hereof
including, without limitation, all claims of the seller or sellers of any
acquired company;
(o) at all times keep its insurable properties insured to such extent
and against such risks, including, without limitation, general comprehensive
liability insurance, product liability insurance, worker's compensation and
other insurance required by law, as is customary with companies of comparable
size in the same or similar businesses. The coverage as of the Closing Date
of each of Airgas and its Subsidiaries is outlined as to carrier, policy
number, expiration date, type and amount in Exhibit P hereto;
(p) preserve and protect its patents, licenses, trademarks, trademark
rights, tradenames, tradename rights and copyrights;
(q) keep true books of records and accounts in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, and in which
full, true and correct entries will be made of all of its dealings and
transactions;
(r) permit any officer of any of the Banks designated in writing by such
Bank, to visit and inspect any of its properties, corporate books and
financial records at such times as such Bank may reasonably request upon
reasonable notice and during ordinary business hours;
(s) upon the written request of any of the Banks, authorize any officer
of such Bank to discuss its financial statements and financial affairs at any
time from time to time with the independent certified public accountants of
Airgas and its Subsidiaries upon reasonable notice and during ordinary
business hours;
(t) deliver to the Banks forthwith, upon any Executive Officer of Airgas
obtaining knowledge of an Event of Default or an event which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both, a certificate of the chief financial officer or other
Executive Officer of Airgas specifying the nature and period of existence
thereof and what action the Borrowers propose to take with respect thereto;
(u) pay the fee to the Agent as set forth in agent's fee agreement of
even date herewith;
<PAGE> EX-73
(v) notify the Agent in writing within five (5) Business Days after any
Executive Officer of any Credit Party knows or has reason to know of the
occurrence of any of the following with respect to Airgas or any of its
Subsidiaries:
(i) the pendency or commencement of any material
action, suit or proceeding at law or in equity wherein
the opposing party either seeks damages of more than
$250,000.00 in excess of applicable insurance coverage or
damages of more than $3,000,000.00 in any instance;
(ii) any event or condition which shall constitute
an event of default under any other agreement for
borrowed money in excess of $500,000.00;
(iii) any levy of an attachment, execution or other
process against a significant part of its assets; or
(iv) any change in any existing agreement or
contract which would likely materially adversely affect
the business or affairs, financial or otherwise, of
Airgas and its Subsidiaries taken as a whole;
The Agent shall promptly notify the Banks of any notice received by the Agent
pursuant to this Section 12.01(v).
(w) (i) comply with the applicable provisions of the Employee
Retirement Income Security Act of 1974 as amended ("ERISA") where the failure
so to comply might reasonably be expected materially to impair the right of
Airgas or any of its Subsidiaries to carry on business as now being conducted
or to affect materially adversely the financial condition of such
corporation and (ii) furnish to the Banks, (A) as soon as possible, and in any
event within five (5) Business Days after any Executive Officer of any Credit
Party knows or has reason to know that any Reportable Event with respect to
any Plan has occurred, a statement of the chief financial officer of Airgas
setting forth details as to such Reportable Event and the action that the
Borrowers propose to take with respect thereto, together with a copy of the
notice of such Reportable Event, if any, given to the Pension Benefit Guaranty
Corporation or any successor thereto ("PBGC"), and (B) promptly after the
receipt or filing thereof, a copy of any notice Airgas or any of its
Subsidiaries may receive from the PBGC relating to the intention of PBGC to
terminate any Plan or to appoint a trustee to administer any Plan and all
reports and notices relating to any Reportable Event or Prohibited Transaction
(as defined in ERISA). For purposes hereof,
(1) "Plan" shall mean any employee plan which is
subject to the provisions of Title IV of ERISA and which
is maintained for employees of Airgas or any of its
Subsidiaries or any other trade or business which is
under common control with Airgas or any of its
Subsidiaries within the meaning of Section 414(c) of the
Internal Revenue Code of 1986, as amended, or the
regulations thereunder; and
(2) "Reportable Event" shall mean any Reportable
Event as defined in Section 4043 of ERISA or the
regulations thereunder for which the 30-day notice
requirement has not been waived by PBGC;
<PAGE> EX-74
(x) execute any and all further documents, agreements and instruments,
and take all further actions which may be required under applicable law, or
which the Majority Banks may reasonably request, in order to effectuate the
transactions contemplated by this Loan Agreement; and
(y) cause (i) each of Mauritius Industrial Gases, Inc., Poligaz, S.A.
and Polska Airgas, S.A. at such time as any such Subsidiary shall have total
assets of at least $3,000,000 and (ii) each other Subsidiary hereafter
acquired by any Credit Party prior to the Maturity Date (A) to become a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement and (B) to
deliver to the Agent such other documentation as the Agent may reasonably
request in connection with the foregoing, including, without limitation,
certified corporate resolutions and other corporate documents of such Person
and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
obligations of such Subsidiary under the Guaranty Agreement); provided,
however, with respect to any such Subsidiary described above which is a
Canadian Subsidiary (1) such Canadian Subsidiary shall not be obligated to so
guarantee the obligations of the Borrowers during the 90 day period
immediately succeeding the date of acquisition of such Canadian
subsidiary and (2) if, subsequent to such Canadian Subsidiary becoming a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement, any Canadian
Lender has agreed to provide financing to such Canadian Subsidiary to provide
for the working capital, capital expenditure, acquisition costs and/or letter
of credit needs of such Canadian Subsidiary, then, promptly upon the request
of the Borrowers, the Agent (on behalf of the Banks) shall thereupon release
such Canadian Subsidiary from the Guaranty Agreement.
The provisions of subsections (m)(ii) and (n) of this Section 12.01 shall
remain operative and in full force and effect regardless of the expiration of
this Loan Agreement.
ARTICLE XIII
Negative Covenants
13.01 Each of the Borrowers covenants and agrees with the Banks and the
Agent that, so long as this Loan Agreement shall remain in effect or any
Letter of Credit or Bankers' Acceptance shall be outstanding or the principal
of or interest on any Note, Money Market Note, LC Reimbursement Obligation or
BA Reimbursement Obligation or any other expense or amount payable hereunder
remains unpaid, and until the Revolving Credit Loan Commitments are terminated
and the Banks are no longer obligated to make any Letter of Credit Term Loans,
without the prior written consent of the Majority Banks, it will not nor will
it enter into any binding agreement to or permit any Subsidiary to:
(a) incur, create, assume or permit to exist any indebtedness for
borrowed money, however evidenced, or its equivalent, except
(i) the Loans, the Letters of Credit (and the
related LC Reimbursement Obligations), the Bankers'
Acceptances (and the related BA Reimbursement
Obligations) and the Money Market Loans;
<PAGE> EX-75
(ii) existing indebtedness set forth in Exhibit Q
hereto (and renewals, refinancings or extensions (but not
any increases in the outstanding principal amount)
thereof on terms and conditions no less favorable to such
Borrower or Subsidiary than the terms and conditions of
such existing indebtedness);
(iii) indebtedness evidenced by endorsement of
negotiable instruments for collection and done in the
ordinary course of business;
(iv) the Subordinated Debt;
(v) unsecured indebtedness incurred in favor of the
sellers of the companies described in Section
13.01(h)(iv) and (v) hereof in order to finance the
acquisition of such companies;
(vi) standby letters of credit (other than standby
Letters of Credit issued pursuant to Section 5.01 hereof)
provided that the full amount available to be drawn
thereunder is at all times backed or secured by a Letter
of Credit issued pursuant to Section 5.01 hereof;
(vii) indebtedness to NationsBank of up to $30,000,000
under the Promissory Note dated January 31, 1994 and attached
hereto as Schedule 4, incurred from time to time on or after
the date of acquisition by Airgas (directly or indirectly
through one or more of its Subsidiaries) of certain assets of
the retail, industrial, medical and specialty gas businesses
of The BOC Group, Inc. (Airco) in California and Nevada; and
(viii) other present or future indebtedness of Airgas
or any of its Subsidiaries, provided that the aggregate
amount of such indebtedness at any time outstanding shall
not exceed $20,000,000.00; provided, however, that
nothing contained in this Section 13.01(a) or any other
provision of this Loan Agreement shall prevent any Credit
Party from entering into, as lessee, any real estate
leases (other than capitalized leases) or operating
leases of equipment in the ordinary course of such Credit
Party's business;
(b) incur, create, assume or permit to exist any mortgage, pledge, lien,
charge or other encumbrance of any nature whatsoever on any of its assets, now
or hereafter owned, other than
(i) liens in favor of the Agent, on behalf of the
Banks, arising after the Closing Date;
(ii) existing liens as set forth in Exhibit K
hereto;
(iii) any unfiled lien of materialmen, mechanics,
workmen, warehousemen, carriers, landlords or repairmen;
provided that if such a lien shall be perfected and shall
not be contested in good faith, it shall be discharged of
record immediately by payment, bond or otherwise;
<PAGE> EX-76
(iv) tax liens for taxes which are not yet due and
payable or which are being contested in good faith and by
appropriate proceedings and against which reserves in
accordance with Generally Accepted Accounting Principles
have been established;
(v) condemnation actions;
(vi) easements, rights-of-way, restrictions and
other similar encumbrances that do not reduce in any
material respect the value of the applicable real
property; and
(vii) purchase money liens granted in connection with
indebtedness permitted by Section 13.01(a)(viii) hereof;
(c) acquire, consolidate, merge or combine with any Person; provided,
however, (i) any Credit Party may acquire, by purchase, consolidation, merger,
combination or otherwise, the companies described in Section 13.01(h)(iv) or
(v) hereof so long as such Credit Party is the surviving corporation; (ii)
either Borrower may merge with any Guarantee Subsidiary so long as such
Borrower is the surviving corporation; and (iii) any Guarantee Subsidiary may
merge with another Guarantee Subsidiary;
(d) sell, transfer or otherwise dispose of any of its properties and
assets (including without limitation any Capital Stock in any of its
Subsidiaries) except (i) sales or leases in the ordinary course of business;
(ii) transfers of assets to an Airgas-affiliated real estate investment trust
(the "REIT") provided that (A) such transfers are made prior to the first
anniversary date of the Closing Date, (B) the terms and conditions of the REIT
structure, the associated investments in the REIT stock and the leaseback
agreements regarding assets contributed to the REIT shall be acceptable to the
Majority Banks in their sole reasonable discretion, (C) the fair market value
of assets contributed to the REIT and the corresponding fair market value of
the compensation received therefor shall be equivalent, as evidenced by
appraisals acceptable to the Majority Banks in their sole reasonable
discretion, (D) non-cash assets received as compensation for contributions to
the REIT shall be in a form satisfactory to the Majority Banks in their sole
reasonable discretion and (E) at no time shall (1) the sum of (I) the
aggregate fair market value of all assets contributed to the REIT by Airgas
and its Subsidiaries as permitted under this clause (d)(ii) and the aggregate
amount of investments (other than asset contributions otherwise permitted by
this clause (d)(ii)) made in the REIT as permitted under Section 13.01(h)(vii)
hereof plus (II) the aggregate outstanding principal amount guaranteed
pursuant to all guarantees permitted under Section 13.01(g)(iv) hereof, plus
(III) the aggregate outstanding amount of investments permitted under Section
13.01(h)(vi) hereof, plus (IV) the aggregate outstanding principal amount of
loans and advances permitted under Section 13.01(k)(iii) hereof, plus (V) the
aggregate outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (2) 20% of Book Net Worth as of the end of the
then immediately preceding fiscal quarter; and (iii) other non-ordinary course
of business sales (including Sale/Leaseback Transactions permitted by Section
13.01(e) hereof) provided that (A) the aggregate net book value of the assets
sold by Airgas or any of its Subsidiaries in all such transactions in any
fiscal year does not exceed 10% of Total Assets as of the end of the
immediately preceding fiscal year, (B) the aggregate net book value of the
assets sold by Airgas or any of its Subsidiaries in all such transactions
after the Closing Date does not exceed 25% of Total Assets as of the end of
<PAGE> EX-77
the fiscal year immediately preceding the then current fiscal year, (C) the
sale price for any asset sold in any such transaction shall not be less than
the fair market value of such asset, (D) each such transaction involving
assets having a net book value of $500,000 or more shall be on an arms-length
basis with a wholly independent third party and (E) no Event of Default nor
any event or condition which, with the giving of notice or lapse of time or
both, would constitute an Event of Default, shall have occurred and be
continuing at the time of any such sale or shall result upon giving effect
thereto; provided, however, that any Credit Party may enter into leases as
lessor in the ordinary course of such Credit Party's business.
(e) enter into any arrangement (a "Sale/Leaseback Transaction"),
directly or indirectly, with any Person whereby Airgas or any of its
Subsidiaries shall sell or transfer any property, real or personal, whether
now owned or hereafter acquired, and used or useful in such Person's business,
and thereafter rent or lease such property or other property which such
Person intends to use for substantially the same purpose or purposes as the
property being sold or transferred; provided that Airgas or any of its
Subsidiaries may enter into any Sale/Leaseback Transaction if (i) such
transaction would be permitted under Section 13.01(d) hereof; and (ii) the net
cash proceeds of each such transaction are applied immediately to repay or
prepay the Borrowers' Obligations (which repayments and/or prepayments shall
not reduce the Revolving Credit Loan Commitments of the Banks hereunder);
(f) seek or permit dissolution, liquidation, or termination in whole or
in part; provided, however, any corporation 85% or more of the Capital Stock
of which is owned by any Credit Party may be dissolved, liquidated or
terminated without the consent of the Banks;
(g) guarantee directly or indirectly the obligations of any Person
except for (i) the guarantee of a Guarantee Subsidiary pursuant to the
Guaranty Agreement, (ii) endorsements of negotiable instruments in the
ordinary course of business, (iii) the unsecured guarantee by Airgas of any
indebtedness permitted under Section 13.01(a) hereof and (iv) additional
guarantees provided that at no time shall (A) the sum of (1) the aggregate
outstanding principal amount guaranteed pursuant to all such guarantees
permitted under this clause (iv), plus (2) the aggregate fair market value of
all assets contributed to the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate amount of investments
(other than asset contributions otherwise permitted by Section 13.01(d)(ii)
hereof) made in the REIT as permitted under Section 13.01(h)(vii) hereof, plus
(3) the aggregate outstanding amount of investments permitted under Section
13.01(h)(vi) hereof, plus (4) the aggregate outstanding principal amount of
loans and advances permitted under Section 13.01(k)(iii) hereof, plus (5) the
aggregate outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as of the end of the
then immediately preceding fiscal quarter;
(h) purchase, own, invest in or otherwise acquire, directly or
indirectly, any stock or other securities, or make or permit to exist any
investment or capital contribution or acquire any interest whatsoever in any
other Person or permit to exist any loans or advances for such purposes;
provided, however, any Credit Party may maintain existing investments in the
other Credit Parties and any Credit Party may maintain investments in or
invest in:
<PAGE> EX-78
(i) direct obligations of the United States of
America, or any agency thereof or obligations guaranteed
by the United States of America; provided, that such
obligations mature within one year from the date of
acquisition thereof;
(ii) certificates of deposit maturing within one
year from the date of acquisition issued by one of the
Banks, or by any other bank or trust company organized
under the laws of the United States or any state thereof
having a long term debt rating of A or better by Moody's
Investors Service, Inc. and/or Standard and Poor's
Corporation and not known by the Borrowers to be having
financial difficulties;
(iii) commercial paper rated P-1 or P-2 by Moody's
Investors Service, Inc. (Commercial Paper Record) and
rated A-1 or A-2 by Standard and Poors Corporation
(Commercial Paper Ratings Guide);
(iv) companies (including Canadian companies)
conducting a line of business similar to and compatible
with (A) the business formerly conducted by Jackson, (B)
the business of US Cryogenics, Inc. prior to its sale by
US Airgas, Inc. or (C) the business of Nitrous Oxide,
Leasing and those other Credit Parties which conduct a
gas distribution business, including the distribution of
equipment and/or supplies related thereto;
(v) capital assets for companies described in
clause (iv) above, acquired incidental to and within 12
months after the acquisition of such company;
(vi) companies having a business involving the
financing of customers and suppliers of any of Airgas and
its Subsidiaries, provided that at no time shall (A) the
sum of (1) the aggregate outstanding amount of
investments permitted under this clause (vi), plus (2)
the aggregate fair market value of all assets contributed
to the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) made
in the REIT as permitted under Section 13.01(h)(vii)
hereof, plus (3) the aggregate outstanding principal
amount guaranteed pursuant to all guarantees permitted
under Section 13.01(g)(iv) hereof, plus (4) the aggregate
outstanding principal amount of loans and advances
permitted under Section 13.01(k)(iii) hereof, plus (5)
the aggregate outstanding amount of investments permitted
under Section 13.01(m)(ii) hereof, exceed (B) 20% of Book
Net Worth as of the end of the then immediately preceding
fiscal quarter;
<PAGE> EX-79
(vii) investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) in
the REIT described in Section 13.01(d)(ii) hereof,
provided that at no time shall (A) the sum of (1) the
aggregate fair market value of all assets contributed to
the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) made
in the REIT as permitted under this clause (vii), plus
(2) the aggregate outstanding principal amount guaranteed
pursuant to all guarantees permitted under Section
13.01(g)(iv) hereof, plus (3) the aggregate outstanding
amount of investments permitted under Section
13.01(h)(vi) hereof, plus (4) the aggregate outstanding
principal amount of loans and advances permitted under
Section 13.01(k)(iii) hereof, plus (5) the aggregate
outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as
of the end of the then immediately preceding fiscal
quarter; and
(viii) investments permitted by Section 13.01(m)
hereof;
(i) discount or sell any of its notes or accounts receivable; provided,
however, Airgas or any of its Subsidiaries may discount or sell installment
sales contracts relating to the sale of cylinders or equipment held for sale
in the normal course of business;
(j) enter into any transaction, including, without limitation, the
purchase, sale, leasing or exchange of property, real or personal, or the
rendering of any service, with any Affiliate, any Subsidiary which is not a
Credit Party, or any stockholder, officer or director of Airgas or any of its
Subsidiaries, except in the ordinary course of and pursuant to the reasonable
requirements of such Person's business and upon fair and reasonable terms no
less favorable as a whole to such Person than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, Subsidiary,
stockholder, officer or director of Airgas or any of its Subsidiaries;
provided, however, that any Subsidiary of Airgas may issue, sell and/or
distribute to officers of such Subsidiary additional shares of stock in such
Subsidiary not to exceed 15% in the aggregate of any class of stock of such
Subsidiary for all such officers;
(k) make any loans or advances to any Person except (i) loans or
advances in the ordinary course of business including any loans or advances
made in connection with the sale of cylinders on an installment basis; (ii)
loans or advances to any Credit Party; and (iii) additional loans and
investments provided that at no time shall (A) the sum of (1) the aggregate
outstanding principal amount of loans and advances permitted under this clause
(iii), plus (2) the aggregate fair market value of all assets contributed to
the REIT by Airgas and its Subsidiaries as permitted under Section
13.01(d)(ii) hereof and the aggregate amount of investments (other
than asset contributions otherwise permitted by Section 13.01(d)(ii) hereof)
made in the REIT as permitted under Section 13.01(h)(vii) hereof, plus (3) the
aggregate outstanding principal amount guaranteed pursuant to all guarantees
permitted under Section 13.01(g)(iv) hereof, plus (4) the aggregate
outstanding amount of investments permitted under Section 13.01(h)(vi) hereof,
<PAGE> EX-80
plus (5) the aggregate outstanding amount of investments permitted under
Section 13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as of the end of
the then immediately preceding quarter;
(l) declare or pay any cash dividends (other than stock dividends) or
redeem or retire any of its capital stock at any time when there exists, or
if, as a consequence thereof, there would occur, any Event of Default or any
event or condition which, with the giving of notice or lapse of time or both,
would constitute such an Event of Default;
(m) create or permit to exist any partnerships or joint ventures or make
any similar substantial investment other than (i) the existing joint venture
interest of Midwest in Elkem Metals Company and (ii) additional investments
provided that at no time shall (A) the sum of (1) the aggregate outstanding
amount of investments permitted under this clause (ii), plus (2) the aggregate
fair market value of all assets contributed to the REIT by Airgas and its
Subsidiaries as permitted under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions otherwise permitted by
Section 13.01(d)(ii) hereof) made in the REIT as permitted under Section
13.01(h)(vii) hereof, plus (3) the aggregate outstanding principal amount
guaranteed pursuant to all guarantees permitted under Section 13.01(g)(iv)
hereof, plus (4) the aggregate outstanding amount of investments permitted
under Section 13.01(h)(vi) hereof, plus (5) the aggregate outstanding
principal amount of loans and advances permitted under Section 13.01(k)(iii)
hereof, exceed (B) 20% of Book Net Worth as of the end of the then immediately
preceding fiscal quarter;
(n) enter into a line of business other than (i) a line of business
which is similar to and compatible with (A) the business formerly conducted by
Jackson, (B) the business of US Cryogenics, Inc. prior to its sale to US
Airgas, Inc. or (C) the business of Nitrous Oxide, Leasing and those other
Credit Parties which conduct a gas distribution business, including the
distribution of equipment and/or supplies related thereto, (ii) a business
involving the financing of customers and suppliers of any of Airgas and its
Subsidiaries or (iii) any other business conducted by Airgas or any of its
Subsidiaries as of the Closing Date;
(o) change its current accounting practices regarding recognition of
income except in connection with changes in Generally Accepted Accounting
Principles;
(p) permit the Leverage Ratio at any time to be greater than 0.7 to 1.0;
(q) permit the Current Ratio at any time to be less than 1.3 to 1.0;
(r) permit the Fixed Charge Coverage Ratio as of the last day of any
fiscal quarterly period to be less than 1.45 to 1.00;
(s) permit Book Net Worth at any time to be less than $140,000,000.00;
provided, however, (i) such amount shall be increased at the end of each
fiscal year (commencing with the end of the fiscal year ending March 31, 1995)
by an amount equal to the greater of $3,000,000.00 or 75% of Airgas and its
Subsidiaries' net income for the fiscal year then ending (computed on a
consolidated basis in accordance with Generally Accepted Accounting
Principles) and (ii) in addition to any increases pursuant to clause (i)
above, such amount shall also be increased by 75% of the net proceeds
received by Airgas or any of its Subsidiaries in connection with (A) any
private or public sale or placement of its common or preferred stock
<PAGE> EX-81
(including, without limitation, any placement of stock in connection with the
exercise of warrants or options), (B) the conversion of any Subordinated Debt
into equity or (C) any other transaction which, in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, increases the
owners' equity accounts of Airgas or any of its Subsidiaries; provided
further, such amount shall be reduced to the extent recommended by the
independent certified public accountants of Airgas and its Subsidiaries (and
concurred in by the Banks) in connection with adjustments made in accordance
with Statements on Financial Accounting Standards (SFAs) #106 and #109;
(t) except as otherwise permitted in writing by the Majority Banks, make
any payment of principal or interest on any Subordinated Debt if at the time
of the proposed payment the documents evidencing such Subordinated Debt
provide that the holders thereof shall not be entitled to receive payment
thereof until the term of this Loan Agreement shall have expired in accordance
with the provisions of Section 16.11 hereof; or
(u) except as otherwise permitted in writing by the Majority Banks,
enter into any modification or amendment of the terms or provisions of either
Senior Subordinated Note Purchase Agreement or any other document executed in
connection with the Subordinated Debt.
ARTICLE XIIIA
Incorporation of Subordinated Debt Covenants
13A.01 The covenants contained in Section 10 of each of the Senior
Subordinated Note Purchase Agreements, as such covenants may be amended or
modified from time to time (the "Incorporated Covenants"), are hereby
incorporated herein by reference and shall be as binding on the Borrowers as
if set forth fully herein. In the event that both of the Senior Subordinated
Note Purchase Agreements are terminated, the provisions of this Section 13A.01
shall have no further force or effect.
ARTICLE XIV
Events of Default and Acceleration
14.01 If any of the following events (the "Events of Default") shall
occur and be continuing:
(a) (i) the failure of the Borrowers to make when due any payment of
interest, fees or other amounts required by this Loan Agreement and/or any of
the other Loan Documents (other than a payment of principal) and the
continuation of such failure for five (5) days; or (ii) the failure of the
Borrowers to make when due any payment of principal required by this Loan
Agreement and/or any of the Notes or Money Market Notes;
(b) the failure of any Credit Party to comply with any other terms and
conditions in this Loan Agreement (including without limitation any covenant
incorporated herein by reference pursuant to Section 13A.01 hereof) or the
other Loan Documents within 30 days after the earlier to occur of (i) written
notice from the Agent specifying the default and requesting that it be
remedied; or (ii) an Executive Officer of Airgas becomes aware of such
violation;
<PAGE> EX-82
(c) any representation or warranty made by the Credit Parties, or any of
them, herein or in any of the other Loan Documents or in any certificate,
statement or report heretofore or hereafter made (or deemed made pursuant to
Article X hereof) shall be untrue in any material respect when made (or deemed
made);
(d) any Credit Party:
(i) shall make an assignment for the benefit of
creditors; or
(ii) has a petition initiating a proceeding under
any section or chapter of the Bankruptcy Code or its
amendments, filed by or against such Credit Party, and,
if against such Credit Party, such petition is not set
aside or dismissed within sixty (60) days after such
filing; or
(iii) shall file any judicial proceedings for
dissolution or liquidation; or
(iv) has a receiver, trustee or custodian appointed
for all or a material part of its assets which, if
involuntary, is not dismissed within 60 days of such
appointment; or
(v) seeks to make an adjustment, settlement or
extension of its debts with its creditors generally; or
(vi) shall consent to or acquiesce in any of the
events specified in this subsection (d) which are
commenced or instituted against such Credit Party;
(e) one or more judgments or decrees shall be entered against any Credit
Party involving in the aggregate liabilities (to the extent not paid or to the
extent not fully covered by insurance or by adequate reserves (as determined
by the Majority Banks in their sole reasonable discretion) provided by such
Person) of $500,000.00 or more and all or some of such judgments and decrees
(to the extent necessary to reduce the aggregate liability to less than
$500,000.00) shall not have been vacated, discharged or stayed within 30 days
from the entry thereof;
(f) any Credit Party defaults in the performance of any recourse
obligation incurred in connection with the sale of conditional sales contracts
relating to the sale of cylinders, unless such default is in connection with a
bona fide dispute and the applicable Credit Party shall have made adequate
provision (as determined by the Majority Banks in their sole reasonable
discretion) for such obligation on its books of account;
(g) any Credit Party in the performance of any other agreement between
it and any other lender (including without limitation one of the Banks) fails
to pay when due any indebtedness for borrowed money having a principal balance
(alone or in the aggregate) in excess of $500,000.00 or otherwise defaults
with respect to any such indebtedness and such default results in or would
permit the acceleration thereof, unless, with respect to any indebtedness
permitted by Section 13.01(a)(v) hereof, such default is in connection with a
bona fide dispute as to the right of the applicable Credit Party to offset
such indebtedness against indemnification obligations of the holder of such
<PAGE> EX-83
indebtedness to such Credit Party and such Credit Party shall have made
adequate provision (as determined by the Majority Banks in their sole
reasonable discretion) for such indebtedness on its books of account;
(h) any Person and/or its Affiliates shall own in the aggregate more
than 35% of the Voting Stock of Airgas; provided, however, such occurrence
shall not constitute an Event of Default hereunder until a period of 30 days
has elapsed from the date of the acquisition by such Person and/or its
Affiliates of Voting Stock of Airgas which gives such Person and/or its
Affiliates an aggregate ownership of more than 35% of the Voting Stock of
Airgas; provided further, if such Person and/or its Affiliates have filed
a tender offer statement with the Securities and Exchange Commission in
connection with such acquisition, the 30 day period referenced above in the
foregoing proviso shall commence on the date of the filing with the Securities
and Exchange Commission of such tender offer statement;
(i) any Credit Party or other member of the Controlled Group shall fail
to pay when due an amount or amounts aggregating in excess of $500,000.00
which it shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans which in the aggregate have unfunded
liabilities in excess of $500,000.00 (individually and collectively, a
"Material Plan") shall be filed under Title IV of ERISA by any member of the
Controlled Group, any plan administrator or any combination of the above; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default (within
the meaning of Section 4219(c)(5) of ERISA) with respect to, one or more
Multiemployer Plans which could cause one or more members of the Controlled
Group to incur a current payment obligation in excess of $500,000.00;
(j) an event of default shall occur under any of the other Loan
Documents;
then, and in every such event (other than an event described in paragraph (d)
above) and at any time thereafter during the continuance of such event, the
Agent may and shall upon request of any Bank with respect to an event
described in subparagraph (a) above or upon the request of the Majority Banks
with respect to an event described in subparagraph (b), (c), (e), (f), (g),
(h), (i) or (j) above, by written notice to the Borrowers, take any or all
of the following actions, at the same or different times: (i) terminate
forthwith the commitments of all the Banks and the LC Agent hereunder to make
Extensions of Credit; (ii) declare the Notes, the Money Market Notes, the LC
Reimbursement Obligations and the BA Reimbursement Obligations and all fees
and other amounts payable hereunder to be forthwith due and payable, whereupon
the Notes, the Money Market Notes, the LC Reimbursement Obligations and
the BA Reimbursement Obligations, both as to principal and interest, and all
fees and other amounts payable hereunder, shall become forthwith due and
payable without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by each of the Borrowers, anything
contained herein or in the Notes or the Money Market Notes to the contrary
notwithstanding; and (iii) pursue any other remedy under this Loan Agreement
or any other Loan Document or otherwise; and, in any event described in
paragraph (d) above, the commitments of all the Banks and of the LC Agent
hereunder to make Extensions of Credit shall automatically terminate and the
<PAGE> EX-84
Notes, the Money Market Notes, the LC Reimbursement Obligations and the BA
Reimbursement Obligations, both as to principal and interest, and all fees and
other amounts payable hereunder, shall automatically become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each of the Borrowers, anything contained
herein or in the Notes or the Money Market Notes to the contrary
notwithstanding, and the Agent may pursue any other remedy under this Loan
Agreement or any other Loan Document or otherwise.
ARTICLE XV
The Agent
15.01 Each Bank hereby irrevocably designates and appoints the Agent as
the agent of such Bank under this Loan Agreement and the other Loan Documents,
and each Bank hereby irrevocably authorizes the Agent, as the agent for such
Bank, to take such action on its behalf under the provisions of this Loan
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this Loan
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Loan Agreement, or any of the other Loan Documents, the
Agent shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Loan Agreement or the other Loan Documents
or otherwise exist against the Agent.
15.02 The Agent may execute any of its duties under this Loan Agreement
or the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
15.03 Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with any of the Loan Documents (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Banks for any recitals, statements, representations or
warranties made by the Credit Parties contained in any of the Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with, the
Loan Documents or enforceability or sufficiency of any of the Loan Documents,
or for any failure of any Credit Party to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any of the Loan Documents or to
inspect the properties, books or records of the Credit Parties.
15.04 The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any Note, Money Market Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Credit Parties),
<PAGE> EX-85
independent accountants and other experts selected by the Agent. The Agent
may deem and treat the payee of any Note or Money Market Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent. The Agent shall be
fully justified in failing or refusing to take any action under any of the
Loan Documents unless it shall first receive such advice or concurrence
of the Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under any of the Loan Documents in accordance with a request of
the Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the
Notes or the Money Market Notes.
15.05 The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default hereunder unless the Agent has received
notice from a Bank or a Credit Party referring to the applicable Loan Document
and describing such Event of Default. In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Banks. The Agent
shall take such action with respect to such Event of Default as shall be
directed in accordance with Section 14.01 or Section 16.05 hereof; provided
that, unless and until the Agent shall have received such directions, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default as it shall deem
advisable in the best interests of the Banks.
15.06 Each Bank expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the Agent
or any affiliate thereof hereafter taken, including any review of the affairs
of the Credit Parties, shall be deemed to constitute any representation or
warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of each of the Credit
Parties and made its own decision to make its loans hereunder and enter into
this Loan Agreement. Each Bank also represents that it will, independently
and without reliance upon the Agent or the other Banks, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Loan Agreement, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of each of the Credit
Parties. Except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Credit Parties which may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
15.07 The Banks agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrowers, or either of them, and without
limiting the obligation of the Borrowers, and each of them, to do so), ratably
according to the respective amounts outstanding to the Borrowers, from and
against any and all liabilities, obligations, losses, damages, penalties,
<PAGE> EX-86
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes and the Money Market Notes) be imposed on,
incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct; provided, further, no Bank shall be
obligated for the ratable share of such indemnity obligations of any other
Bank. The agreements in this subsection shall survive the payment of the
Notes and the Money Market Notes and all other amounts payable hereunder.
15.08 The Agent and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with any of the Credit
Parties as though the Agent were not the Agent hereunder. With respect to its
Loans made or renewed by it, any Letters of Credit, any Bankers' Acceptances
created by it and any Note or Money Market Note issued to it, the Agent shall
have the same rights and powers under this Loan Agreement as any Bank and
may exercise the same as though it were not the Agent.
15.09 The Agent may resign at any time by giving written notice thereof
to the Banks and the Borrowers and may be removed at any time with or without
cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Agent, then the retiring Agent shall select a successor Agent provided such
successor Agent is a commercial bank organized under the laws of the United
States of America or of any State thereof and has a combined capital and
surplus of at least $400,000,000.00. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Loan Agreement and the other Loan
Documents. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article XV shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this Loan
Agreement and the other Loan Documents.
ARTICLE XVI
Miscellaneous
16.01 All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing or by telefax and, unless
otherwise expressly provided herein, shall be deemed to have been duly given
or made when delivered by hand, or when deposited in the mail, first-class
postage prepaid, or, in the case of telefax notice, when sent, addressed as
follows, or to such address or other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
<PAGE> EX-87
(a) if to the Borrowers:
Airgas, Inc.
Five Radnor Corporate Center
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Britton H. Murdoch
[Courtesy Copy to:
McCausland, Keen & Buckman
Five Radnor Corporate Center
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Melvin J. Buckman, Esq.]
(b) if to the Banks
(i) NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
(ii) The Bank of New York
One Wall Street
New York, New York 10286
Attention: Michael V. Flannery, Jr.
(iii) First Fidelity Bank, N.A.
Broad & Walnut Streets
Philadelphia, Pennsylvania 19109
Attention: Carl Goelz
(iv) Philadelphia National Bank,
Incorporated as Corestates Bank, NA
Broad & Chestnut Streets, FC1-8-3-16
P.O. Box 7618
Philadelphia, Pennsylvania 19101-7618
Attention: Matthew T. Panarese
(v) Continental Bank
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Patrick Canning
(vi) Meridian Bank
One Liberty Place
1650 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103
Attention: David W. Mills
(vii) NBD Bank, N.A.
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Nancy L. Russell
<PAGE> EX-88
(viii) (A) For credit matters:
CIBC Inc.
425 Lexington Avenue
New York, New York 10017
Attention: Paul T. LaHiff
(B) For operations matters:
CIBC Inc.
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Attention: Vice President
Credit Operations
(ix) PNC Bank, National Association
Land Title Building
Broad & Chestnut Streets
Philadelphia, Pennsylvania 19101
Attention: Todd Dissinger
(c) if to the Agent
NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
16.02 No failure or delay on the part of any of the Banks in the
exercise of any right, power or privilege hereunder or under any other Loan
Document shall operate as a waiver of any such right, power or privilege nor
shall any such failure or delay preclude any other or further exercise
thereof. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
16.03 All covenants, agreements, representations and warranties made
herein and in the other Loan Documents shall survive the making by the Banks
of all Extensions of Credit and the execution and delivery to the Banks of the
Loan Documents and shall continue in full force and effect so long as any of
the indebtedness of any of the Borrowers to the Banks or any obligations of
the Banks under the Revolving Credit Loan Commitments remain outstanding.
Whenever in this Loan Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party and all covenants, provisions and agreements by or on behalf of the
Credit Parties, and each of them, which are contained in the Loan Documents or
this Loan Agreement shall inure to the benefit of the successors and assigns
of the Banks.
16.04 The Borrowers jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of the Agent in connection with the
preparation, execution and delivery of the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of special counsel
to the Agent, and out-of-pocket costs and expenses of the Banks in connection
with the enforcement of this Loan Agreement and the other Loan Documents and
to hold the Banks harmless from any and all such costs, expenses and
<PAGE> EX-89
liabilities. In addition, the Borrowers jointly and severally agree to pay to
each Bank an amendment fee of not less than $3,000.00 on the effective date of
each agreement hereafter entered into among the Borrowers and the Banks (or
the Agent on behalf of the Banks) effecting any material amendment,
modification or waiver of the terms of this Loan Agreement, including without
limitation any such agreement relating to any provision set forth in Article
X, Article XI, Article XII, Article XIII or Article XIV hereof. The Banks
hereby acknowledge and agree that no amendment fee (other than the upfront
fees payable on the Closing Date as described in Section 9.01(j) hereof) shall
be payable pursuant to this Section 16.04 in connection with the amendment of
the Prior Loan Agreement as of the date hereof pursuant to this document. The
provisions of this Section shall survive the termination of this Loan
Agreement.
16.05 With the written consent of the Majority Banks, the Agent and the
Borrowers may, from time to time, enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to this Loan
Agreement, the Notes, the Money Market Notes or any of the other Loan
Documents or changing in any manner the rights of the Banks or of the
Borrowers hereunder or thereunder, and with the consent of the Majority Banks
the Agent on behalf of the Banks may execute and deliver to the Borrowers a
written instrument waiving, on such terms and conditions as the Agent or
Majority Banks may specify in such instrument, any of the requirements of this
Loan Agreement or any other Loan Document or any Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (a) extend the maturity of any Note or Money
Market Note or any installment thereof or of any LC Reimbursement Obligation
or BA Reimbursement Obligation, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof, or change
the amount or terms of any Commitment, or change the amount or time for
payment of any fee required hereunder, or amend, modify or waive any provision
of this Section 16.05 or reduce the percentage specified in the definition of
"Majority Banks" set forth in Section 1.01 hereof, or amend or modify the
definition of "Reference Banks" set forth in Section 1.01 hereof, or amend,
modify or waive any provision of any Loan Document requiring action or
approval by all of the Banks, or waive an Event of Default specified in
Section 14.01(a) hereof, or consent to the assignment or transfer by either
Borrower of any of its rights and obligations under this Loan Agreement, or
release either Borrower from its obligations under this Loan Agreement or
release any Guarantee Subsidiary from its obligations under the Guaranty
Agreement (except as otherwise permitted by such Section 12.01(y)), or amend,
modify or waive any provision of the Loan Documents if such amendment,
modification or waiver would have the effect of releasing any collateral
security (including, without limitation, any guarantee) granted thereby or the
obligations to the Agent and the Banks of the parties thereof (it being
expressly understood and agreed by the Borrowers and the Banks that nothing
set forth in this Section 16.05 shall be deemed to require any further action
or approval of the Banks in connection with the release of collateral
contemplated by Section 16.16 hereof), in each case without the written
consent of all the Banks, or (b) amend, modify or waive any provision of
Article XV hereof without the written consent of the then Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Banks and shall be binding upon the Borrowers, and each of
them, the Banks, the Agent and all future holders of the Notes and the Money
Market Notes. In the case of any waiver of the requirements of this Loan
Agreement, any other Loan Document, the Notes or the Money Market Notes, the
parties thereto shall be restored to their former position and rights
thereunder, and any Event of Default waived shall be deemed to be cured and
<PAGE> EX-90
not continuing; but no such waiver shall extend to any subsequent or other
Event of Default, or impair any right consequent thereon.
16.06 Except as otherwise provided for hereunder, interest, fees and
premiums hereunder shall be computed on the basis of a three hundred
sixty-five (365) day year for the actual number of days in the billing period.
16.07 Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent
specified by Section 14.01 hereof to authorize the Agent to declare the Notes,
the Money Market Notes, the LC Reimbursement Obligations and the BA
Reimbursement Obligations due and payable pursuant to the provisions of
Section 14.01 hereof, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing at such Bank to or for the
credit or the account of either of the Borrowers against any and all of the
obligations of the Borrowers now or hereafter existing under this Loan
Agreement or such Note and although such obligations may be unmatured.
16.08 Except as otherwise provided for hereunder with respect to
Eurodollar Loans, should any installment or other payment of the principal of
or interest on the Notes, the Money Market Notes, the LC Reimbursement
Obligations or the BA Reimbursement Obligations become due and payable on
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day thereafter and in the case of an installment of
principal, interest shall be payable thereon at the rate per annum herein
specified during such extension.
16.09 This Loan Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, and
it shall not be necessary in making proof of this Loan Agreement to produce or
account for more than one such counterpart.
16.10 (a) Any Bank may, at any time upon written notice thereof to the
Agent and the Borrowers, transfer or assign all or any portion of the
indebtedness evidenced by the Notes or Money Market Notes held by such Bank
and the Revolving Credit Loan Commitment of such Bank hereunder and the terms
hereof shall extend to any subsequent holder of the Notes or Money Market
Notes; provided, however, that any assignment by a Bank hereunder shall be
subject to the prior written consent of Airgas and the Agent (in either case
not to be unreasonably withheld).
(b) Any Bank may at any time sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Loan Agreement; provided, however, that (1) such Bank's obligations under this
Loan Agreement shall remain unchanged, (2) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (3) each participating bank or other entity shall be entitled to
the benefit of the cost protection provisions contained in Sections 8.04,
8.05, 8.06, 8.08 and 8.09 hereof, except that all claims and petitions for
payment and payments made pursuant to such Sections shall be made through such
selling Bank and except that a participant shall not be entitled to receive
pursuant to such provisions an amount larger than its share of the amount to
which the selling Bank would have been entitled had no such sale been made,
and (iv) the Borrowers, the Agent and the other Banks shall continue to deal
solely and directly with such selling Bank in connection with such Bank's
rights and obligations under this Loan Agreement, and such Bank shall retain
<PAGE> EX-91
the sole right (and participating banks or other entities shall have no right)
to enforce the obligations of any Credit Party under the Loan Documents and to
approve any amendment, modification or waiver of any provision of this Loan
Agreement or any of the other Loan Documents (other than amendments,
modifications or waivers requiring, pursuant to the terms of Section 16.05
hereof, unanimous consent of the Lenders).
(c) Any Bank may pledge all or any portion of its rights under this Loan
Agreement, its Notes and/or its Money Market Note to a Federal Reserve Bank.
No such pledge shall release any Bank from its obligations hereunder or
substitute any such Federal Reserve Bank for such Bank as a party hereto.
16.11 The term of this Loan Agreement shall be until the commitments of
the Banks and of the LC Agent to make Extensions of Credit hereunder shall
have terminated and the Banks have received payment in full of the unpaid
principal and interest of the Notes, the Money Market Notes, the LC
Reimbursement Obligations, the BA Reimbursement Obligations and all other
amounts payable hereunder.
16.12 All obligations of the Borrowers hereunder and under the Notes and
the Money Market Notes shall be joint and several obligations of the
Borrowers.
16.13 All documents executed pursuant to the transactions contemplated
herein including without limitation this Loan Agreement, the Notes, the Money
Market Notes and the other Loan Documents shall be deemed to be contracts made
under, and for all purposes shall be construed in accordance with, the
internal laws and judicial decisions of the State of North Carolina. Each of
the Borrowers hereby submits to the nonexclusive jurisdiction and venue of the
state and federal courts of North Carolina for the purpose of resolving
disputes hereunder or under the other Loan Documents or for the purposes of
collection. Each of the Borrowers hereby agrees that both the federal and
state courts in Mecklenburg County, North Carolina are a convenient forum and
agrees not to raise as a defense that such courts are not a convenient forum.
16.14 The payment of the indebtedness of the Borrowers to the Banks
hereunder and under the Notes and the Money Market Notes is senior to the
payment of the indebtedness of the Borrowers under the Senior Subordinated
Note Purchase Agreements and each Note Guaranty (as defined in the Senior
Subordinated Note Purchase Agreements) in accordance with the terms thereof.
16.15 Wherever in this Loan Agreement the conversion of an amount in any
foreign currency into its U.S. currency equivalent is required, such U.S.
currency equivalent amount shall be realized by using the exchange rate for
such foreign currency as set forth in the Wall Street Journal published on the
date on which a computation thereof is required to be made hereunder, or if
the Wall Street Journal is not published on such date of computation, then as
set forth in the most recently published issue of the Wall Street Journal as
of such date.
16.16 Promptly following the Closing Date, each Bank which was a party
to the Prior Loan Agreement shall return to Airgas all promissory notes
delivered to such Bank in connection with the Prior Loan Agreement.
16.17 Nothing contained herein shall be deemed to limit the right of any
Bank (or any of its affiliates) to make loans to, accept deposits from and
generally engage in any kind of business with any Credit Party.
<PAGE> EX-92
16.18 The Borrowers hereby agree that all payments and prepayments of
principal, interest and fees required to be made hereunder or under any of the
other Loan Documents shall be without deduction for or on account of any
present or future taxes, duties or other charges levied or imposed by any
foreign nation or any political subdivision or taxing authority thereof.
[The remainder of this page has been left blank intentionally.]
<PAGE>
<PAGE> EX-93
IN WITNESS WHEREOF, each of the parties hereto has caused this Sixth
Amended and Restated Loan Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
AIRGAS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
(Signatures Continued)<PAGE>
<PAGE> EX-94
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/Michael A. Crabb, III
_________________________________
Title: Vice President
______________________________
THE BANK OF NEW YORK
By: /s/Michael Flannery
_________________________________
Title: Vice President
______________________________
FIRST FIDELITY BANK, N.A.
By: /s/Carl Goelz
_________________________________
Title: Vice President
______________________________
PHILADELPHIA NATIONAL BANK,
INCORPORATED AS CORESTATES BANK, NA
By: /s/Matthew T. Panarese
_________________________________
Title: Vice President
______________________________
CONTINENTAL BANK
By: /s/Russ Covode
_________________________________
Title: Vice President
______________________________
MERIDIAN BANK
By: /s/David Mills
_________________________________
Title: Vice President
______________________________
(Signatures Continued)
<PAGE> EX-95
NBD BANK, N.A.
By: /s/Nancy Russell
_________________________________
Title: Vice President
______________________________
CIBC INC.
By: /s/Paul T. LaHiff, Jr.
_________________________________
Title: Vice President
______________________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/H. Todd Dissinger
_________________________________
Title: Vice President
______________________________
NATIONSBANK OF NORTH CAROLINA, N.A.,
as Agent for the Banks
By: /s/Michael A. Crabb, III
_________________________________
Title: Vice President
______________________________
<PAGE>
<PAGE>
<PAGE> EX-96
AMENDMENT NO. 1
TO
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment"), dated as of November 8, 1994, is by and among
AIRGAS, INC., a Delaware corporation with its principal place of business
in Wilmington, Delaware ("Airgas"); and
AIRGAS HOLDINGS, INC., a Delaware corporation with its principal place of
business in Wilmington, Delaware ("Holdings" - Airgas and Holdings may be
referred to individually herein as a "Borrower" and collectively as the
"Borrowers");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association
("NationsBank");
THE BANK OF NEW YORK, a New York corporation ("BNY");
FIRST FIDELITY BANK, N.A., a national banking association ("Fidelity");
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, NA, a
national banking association ("PNB");
BANK OF AMERICA ILLINOIS, an Illinois state bank ("BANK OF AMERICA");
MERIDIAN BANK, a Pennsylvania state bank ("Meridian");
NBD BANK, N.A., a national banking association ("NBD");
CIBC INC. , a Delaware corporation ("CIBC"); and
PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC" -
hereinafter, NationsBank, BNY, Fidelity, PNB, Bank of America, Meridian, NBD,
CIBC and PNC may be referred to individually as a "Bank" and collectively as
the "Banks"); and
NATIONSBANK NATIONAL BANK OF NORTH CAROLINA, N.A., a national banking
association (in its capacity as agent for the Banks, hereinafter referred to
in such capacity as the "Agent").
W I T N E S S E T H :
WHEREAS, pursuant to a Sixth Amended and Restated Loan Agreement dated as
of August 30, 1994 (the "Existing Loan Agreement") among the Borrowers, the
Banks and the Agent, the Banks have extended commitments to make certain
credit facilities available to the Borrowers; and
WHEREAS, the Borrowers desire to make certain amendments to the Existing
Loan Agreement.
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
<PAGE> EX-97
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless other-
wise defined herein or the context otherwise requires,
terms used in this Amendment, including its preamble
and recitals, have the following meanings (such
meanings to be equally applicable to the singular and
plural forms thereof):
"Amended Loan Agreement" means the
Existing Loan Agreement as amended hereby.
"Amendment Effective Date" is defined in
Subpart 3.1 hereof.
SUBPART 1.2. Other Definitions. Unless otherwise
defined herein or the context otherwise requires, terms
used in this Amendment, including its preamble and
recitals, have the meanings provided in the Amended
Loan Agreement.
PART II
AMENDMENTS TO EXISTING LOAN AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Loan Agreement is hereby amended in accordance with this
Part II. Except as so amended, the Existing Loan Agreement and all other Loan
Documents shall continue in full force and effect.
SUBPART 2.1. Amendments to Section 1.01. The
definition of "Subordinated Debt" set forth in Section 1.01
of the Existing Loan Agreement is hereby amended to read in
its entirety as follows:
"Subordinated Debt" means (i) the indebtedness of
up to $55,000,000.00 incurred by Airgas pursuant to the
terms of the Senior Subordinated Note Purchase
Agreements, the repayment of which is subordinated to
the repayment of the indebtedness of Airgas to the
Banks hereunder on terms described in the Senior
Subordinated Note Purchase Agreements, (ii)
indebtedness incurred by Airgas on substantially the
terms and conditions as provided in the Confidential
Direct Placement Memorandum set forth as Schedule 5
attached hereto and subordinated to the obligations of
the Borrowers and the Guarantee Subsidiaries under the
Loan Documents on terms substantially similar to the
terms of subordination under the Subordinated Note
Purchase Agreements, provided that no Event of Default
specified in Article XIV hereof, nor any event which
upon notice or lapse of time or both, would constitute
such an Event of Default, exists immediately prior to
or would exist immediately after such indebtedness is
incurred, and (iii) additional subordinated
indebtedness incurred by Airgas provided that (A) no
Event of Default specified in Article XIV hereof, nor
any event which upon notice or lapse of time or both,
<PAGE> EX-98
would constitute such an Event of Default, exists
immediately prior to or would exist immediately after
such additional subordinated indebtedness is incurred
and (B) all of the terms and conditions of such
additional subordinated indebtedness (including the
terms relating to the subordination of such
indebtedness to the indebtedness of Airgas hereunder)
are consented to by the Majority Banks prior to the
time such indebtedness is incurred; provided, however,
the aggregate outstanding principal balance of all
indebtedness referred to in subsections (i), (ii) and
(iii) of this definition shall not exceed
$105,000,000.00 at any one time;
SUBPART 2.2. Amendments to Section 13.01. Subsection
(a), subsection (g) and subsection (y) of Section 13.01 of
the Existing Loan Agreement are hereby amended to read in
their entireties as follows:
13.01 Each of the Borrowers covenants and agrees
with the Banks and the Agent that, so long as this Loan
Agreement shall remain in effect or any Letter of
Credit or Bankers' Acceptance shall be outstanding or
the principal of or interest on any Note, Money Market
Note, LC Reimbursement Obligation or BA Reimbursement
Obligation or any other expense or amount payable
hereunder remains unpaid, and until the Revolving
Credit Loan Commitments are terminated and the Banks
are no longer obligated to make any Letter of Credit
Term Loans, without the prior written consent of the
Majority Banks, it will not nor will it enter into any
binding agreement to or permit any Subsidiary to:
(a) incur, create, assume or permit to exist any
indebtedness for borrowed money, however evidenced, or
its equivalent, except
(i) the Loans, the Letters of Credit
(and the related LC Reimbursement Obligations), the
Bankers' Acceptances (and the related BA Reimbursement
Obligations) and the Money Market Loans;
(ii) existing indebtedness set forth in
Exhibit Q hereto (and renewals, refinancings
or extensions (but not any increases in the
outstanding principal amount) thereof on
terms and conditions no less favorable to
such Borrower or Subsidiary than the terms
and conditions of such existing
indebtedness);
(iii) indebtedness evidenced by
endorsement of negotiable instruments for
collection and done in the ordinary course of
business;
(iv) the Subordinated Debt;
<PAGE> EX-99
(v) unsecured indebtedness incurred in
favor of the sellers of the companies
described in Section 13.01(h)(iv) and (v)
hereof in order to finance the acquisition of
such companies;
(vi) standby letters of credit (other
than standby Letters of Credit issued
pursuant to Section 5.01 hereof) provided
that the full amount available to be drawn
thereunder is at all times backed or secured
by a Letter of Credit issued pursuant to
Section 5.01 hereof;
(vii) indebtedness of Airgas and Holdings of
up to $100,000,000 arising under the Loan
Agreement dated as of November 8, 1994 attached
hereto as Schedule 4; and
(viii) other present or future
indebtedness of Airgas or any of its
Subsidiaries, provided that the aggregate
amount of such indebtedness at any time
outstanding shall not exceed $20,000,000.00;
provided, however, that nothing contained in
this Section 13.01(a) or any other provision
of this Loan Agreement shall prevent any
Credit Party from entering into, as lessee,
any real estate leases (other than
capitalized leases) or operating leases of
equipment in the ordinary course of such
Credit Party's business;
*************
(g) guarantee directly or indirectly the
obligations of any Person except for (i) the guarantee
of a Guarantee Subsidiary (A) pursuant to the Guaranty
Agreement or (B) of any indebtedness permitted under
Section 13.01(a)(vii) hereof, (ii) endorsements of
negotiable instruments in the ordinary course of
business, (iii) the unsecured guarantee by Airgas of
any indebtedness permitted under Section 13.01(a)
hereof and (iv) additional guarantees provided that at
no time shall (A) the sum of (1) the aggregate
outstanding principal amount guaranteed pursuant to all
such guarantees permitted under this clause (iv), plus
(2) the aggregate fair market value of all assets
contributed to the REIT by Airgas and its Subsidiaries
as permitted under Section 13.01(d)(ii) hereof and the
aggregate amount of investments (other than asset
contributions otherwise permitted by Section
13.01(d)(ii) hereof) made in the REIT as permitted
under Section 13.01(h)(vii) hereof, plus (3) the
aggregate outstanding amount of investments permitted
under Section 13.01(h)(vi) hereof, plus (4) the
aggregate outstanding principal amount of loans and
advances permitted under Section 13.01(k)(iii) hereof,
plus (5) the aggregate outstanding amount of
<PAGE> EX-100
investments permitted under Section 13.01(m)(ii)
hereof, exceed (B) 20% of Book Net Worth as of the end
of the then immediately preceding fiscal quarter;
*************
(y) cause (i) each of Mauritius Industrial Gases,
Inc. and Airgas Polska sp. z oo at such time as any
such Subsidiary shall have total assets of at least
$3,000,000 and (ii) each other Subsidiary hereafter
acquired by any Credit Party prior to the Maturity Date
(A) to become a Guarantee Subsidiary pursuant to a
Guaranty Joinder Agreement and (B) to deliver to the
Agent such other documentation as the Agent may
reasonably request in connection with the foregoing,
including, without limitation, certified corporate
resolutions and other corporate documents of such
Person and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality,
validity, binding effect and enforceability of the
obligations of such Subsidiary under the Guaranty
Agreement); provided, however, with respect to any such
Subsidiary described above which is a Canadian
Subsidiary (1) such Canadian Subsidiary shall not be
obligated to so guarantee the obligations of the
Borrowers during the 90 day period immediately
succeeding the date of acquisition of such Canadian
Subsidiary and (2) if, subsequent to such Canadian
Subsidiary becoming a Guarantee Subsidiary pursuant to
a Guaranty Joinder Agreement, any Canadian Lender has
agreed to provide financing to such Canadian Subsidiary
to provide for the working capital, capital
expenditure, acquisition costs and/or letter of credit
needs of such Canadian Subsidiary, then, promptly upon
the request of the Borrowers, the Agent (on behalf of
the Banks) shall thereupon release such Canadian
Subsidiary from the Guaranty Agreement.
SUBPART 2.3. Amendments to Section 13A.01. Section
13A.01 of the Existing Loan Agreement is hereby amended to
read in its entirety as follows:
13A.01 The covenants of Airgas (i) contained in
Section 10 of each of the Senior Subordinated Note
Purchase Agreements, as such covenants may be amended
or modified from time to time and (ii) contained in any
documentation evidencing or executed in connection with
any other Subordinated Debt as such documents may be
amended or modified from time to time (collectively,
the "Incorporated Covenants"), are (until termination
of the applicable Subordinated Note Purchase Agreement
or the applicable documentation evidencing or executed
in connection with such other Subordinated Debt, as the
case may be) hereby incorporated herein by reference
and shall be as binding on the Borrowers as if set
forth fully herein.
<PAGE> EX-101
SUBPART 2.4. Replacement of Schedule 4. Existing
Schedule 4 to the Existing Loan Agreement is deleted in its
entirety and a new schedule in the form of Schedule 4
attached hereto is added to the Existing Loan Agreement in
replacement therefor and substitution thereof.
SUBPART 2.5. New Schedule 5. A new schedule in the
form of Schedule 5 is added to the Existing Loan Agreement
immediately following existing Schedule 4 attached thereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment Effective Date. This
Amendment shall be and become effective as of the date
hereof (the "Amendment Effective Date") when the Agent
shall have received counterparts of this Amendment,
each of which shall have been duly executed on behalf
of the Borrowers and the Majority Banks.
The Banks hereby acknowledge and agree that no
amendment fee shall be payable pursuant to Section
16.04 of the Existing Credit Agreement in connection
with this Amendment.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in
this Amendment to any Part or Subpart are, unless
otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Loan
Agreement. This Amendment is a Loan Document executed
pursuant to the Existing Loan Agreement and shall
(unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with
the terms and provisions of the Existing Loan
Agreement.
SUBPART 4.3. References in Other Loan Documents.
At such time as this Amendment shall become effective
pursuant to the terms of Subpart 3.1 hereof, all
references in the Loan Documents to the "Loan
Agreement" shall be deemed to refer to the Loan
Agreement as amended by this Amendment.
SUBPART 4.4. Expenses. The Borrowers agree to
pay all reasonable out-of-pocket expenses (including
fees and expenses of counsel) incurred by the Agent in
connection with the preparation, execution and delivery
of this Amendment.
SUBPART 4.5. Counterparts, Effectiveness, Etc.
This Amendment may be executed by the parties hereto in
several counterparts, each of which shall be deemed to
be an original and all of which shall constitute
together but one and the same agreement.
<PAGE> EX-102
SUBPART 4.6. Governing Law; Entire Agreement.
THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA.
[The remainder of this page has been left blank intentionally.]
<PAGE>
<PAGE> EX-103
IN WITNESS WHEREOF, each of the parties hereto has caused
this First Amendment to be duly executed by their duly authorized
officers, all as of the day and year first above written.
AIRGAS, INC.
By /s/Britton H. Murdoch
________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By /s/Britton H. Murdoch
________________________________
Britton H. Murdoch
Vice President
(Signatures Continued)
<PAGE>
<PAGE> EX-104
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/M. Gregory Seaton
____________________________
Title: Vice President
____________________________
THE BANK OF NEW YORK
By: /s/Michael V. Flannery
____________________________
Title: Vice President
____________________________
FIRST FIDELITY BANK, N.A.
By: /s/Carl Goelz
____________________________
Title: Vice President
____________________________
PHILADELPHIA NATIONAL BANK,
INCORPORATED AS CORESTATES BANK, NA
By: /s/Matthew T. Panarese
____________________________
Title: Vice President
____________________________
BANK OF AMERICA ILLINOIS
By: /s/Nancy J. McGaw
____________________________
Title: Vice President
____________________________
MERIDIAN BANK
By: /s/Patrick B. Trainor
____________________________
Title: Assistant Vice President
____________________________
[Signatures continued]
<PAGE> EX-105
NBD BANK, N.A.
By: /s/John W. Fischer, III
____________________________
Title: Senior Vice President
____________________________
CIBC INC.
By: /s/Paul T. LaHiff, Jr.
____________________________
Title: Vice President
____________________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/H. Todd Dissinger
____________________________
Title: Vice President
____________________________
NATIONSBANK OF NORTH CAROLINA,
N.A., as Agent for the Banks
By: /s/M. Gregory Seaton
____________________________
Title: Vice President
____________________________
[Signatures continued]
<PAGE>
<PAGE> EX-106
The undersigned, as Guarantee Subsidiaries under the Guaranty
Agreement dated as of August 30, 1994 executed by each of the
undersigned in favor of the Agent and the Banks referred to above for the
benefit of the Borrowers referred to above, hereby acknowledge and consent to
the terms of the foregoing Amendment No. 1 to Sixth Amended and Restated Loan
Agreement.
AIRGAS BREATHING AIR SYSTEMS, INC.
AIRGAS HOLDINGS CANADA LIMITED
AIRGAS INTERNATIONAL, INC.
AIRGAS MANAGEMENT, INC.
AIRGAS NEW ENGLAND REAL ESTATE, INC.
AIRGAS REALTY, INC.
AMERICAN CARBIDE AND CARBON
CORPORATION (d/b/a MIDWEST CARBIDE)
BAY AIRGAS, INC.
CASCADE AIRGAS, INC.
CRYODYNE TECHNOLOGIES, INC.
CYLINDER LEASING CORP.
EMPIRE AIRGAS, INC.
FLORIDA AIRGAS, INC.
G.S. PARSONS, CO.
GREAT LAKES AIRGAS, INC.
GREAT WESTERN AIRGAS, INC.
GULF STATES AIRGAS, INC.
INDUSTRIAL GASES OF WICHITA, INC.
KEYSTONE AIRGAS, INC.
LONE STAR AIRGAS, INC.
MICHIGAN AIRGAS, INC.
MIDAMERICA AIRGAS, INC.
MIDAMERICA HOLDINGS, INC.
MIDWEST AIRGAS, INC.
MOUNTAIN AIRGAS, INC.
NITROUS OXIDE CORP.
NORTHEAST AIRGAS, INC.
NORTHERN GASES, INC.
PACIFIC AIRGAS, INC.
POST AIRGAS, INC.
POTOMAC AIRGAS, INC.
RANGE ARC, INC.
SIERRA AIRGAS, INC.
SOONER AIRGAS, INC.
SOUTHEAST AIRGAS, INC.
SOUTHERN CALIFORNIA AIRGAS, INC.
SPECIALTY PRODUCTS AND EQUIPMENT, INC.
US AIRGAS, INC.
VIRGINIA WELDING SUPPLY CO.
WESTWIND COMPANY
By /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
of each of the Companies listed above
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<PAGE> EX-107
SCHEDULE 4
[Loan Documents for $100,000,000 Revolving Credit Facility]
<PAGE>
<PAGE> EX-108
SCHEDULE 5
[Summary of Terms and Conditions for New Subordinated Debt]
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<PAGE>
<PAGE> EX-109
LOAN AGREEMENT
DATED AS OF NOVEMBER 8, 1994
BY AND AMONG
AIRGAS, INC.
AND
AIRGAS HOLDINGS, INC.
AS BORROWERS,
THE BANKS NAMED HEREIN,
NATIONSBANK OF NORTH CAROLINA, N.A.,
AS STRUCTURING AND DOCUMENTATION AGENT,
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
<PAGE>
<PAGE> EX-110
Table of Contents
Section Title Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . 1
1.02 Incorporated Definitions. . . . . . . . . . . . . 5
1.03 Accounting Terms. . . . . . . . . . . . . . . . . 6
ARTICLE II LOANS . . . . . . . . . . . . . . . . . . . . . . 6
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . 6
2.02 (a) Minimum Amounts. . . . . . . . . . . . . . . 6
(b) Types of Loans . . . . . . . . . . . . . . . 6
(c) Notice . . . . . . . . . . . . . . . . . . . 7
(d) Limitation on Numbers of
Eurodollar Loans . . . . . . . . . . . . . 7
2.03 Notes . . . . . . . . . . . . . . . . . . . . . . 7
2.04 Loan Interest Rates . . . . . . . . . . . . . . . 8
2.05 (a) Commitment Fee . . . . . . . . . . . . . . . 8
(b) Reduction of Loan Commitments. . . . . . . . 8
ARTICLE III ADDITIONAL PROVISIONS REGARDING LOANS . . . . . . 9
3.01 Additional Interest Rate Provisions . . . . . . . 9
(a) Default Rate . . . . . . . . . . . . . . . . 9
(b) LIBOR Base Rate Unascertainable. . . . . . . 9
3.02 Conversion and Continuation of Loans. . . . . . .10
3.03 Prepayments . . . . . . . . . . . . . . . . . . .11
3.04 Additional Costs. . . . . . . . . . . . . . . . .12
3.05 Changes in Laws or Regulations. . . . . . . . . .14
3.06 Compensations . . . . . . . . . . . . . . . . . .14
3.07 Payments and Prepayments. . . . . . . . . . . . .15
3.08 Capital Adequacy Protection . . . . . . . . . . .15
3.09 Limitation of Liability of Holdings . . . . . . .16
ARTICLE IV CONDITIONS PRECEDENT AS OF CLOSING DATE . . . . .16
4.01 Conditions Precedent to Initial Loans . . . . . .16
ARTICLE V CONDITIONS OF LENDING . . . . . . . . . . . . . .17
5.01 Conditions of Lending . . . . . . . . . . . . . .17
5.02 Commitment Limitation; Reaffirmation. . . . . . .18
ARTICLE VI REPRESENTATIONS AND WARRANTIES. . . . . . . . . .18
6.01 Representations and Warranties. . . . . . . . . .18
(a) Incorporation. . . . . . . . . . . . . . . .18
(b) Power and Authority
to Own Properties and Assets . . . . . . .18
(c) Power and Authority to Execute,
Deliver and Perform the Loan Documents . .18
(d) Loan Documents Valid and Binding
Obligations. . . . . . . . . . . . . . . .18
(e) Execution, Delivery and Performance. . . . .18
(f) Subsidiaries . . . . . . . . . . . . . . . .19
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(g) Interests in Other Persons . . . . . . . . .19
(h) Audited Balance Sheet. . . . . . . . . . . .19
(i) Margin Stock; Regs G, U, T and X . . . . . .19
(j) No Governmental Approvals. . . . . . . . . .19
6.02 Incorporated Representations and Warranties
From Existing Loan Agreement. . . . . . . . . .20
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . . .20
7.01 Covenants . . . . . . . . . . . . . . . . . . . .20
(a) Use of Loan Proceeds . . . . . . . . . . . .20
(b) Indemnification. . . . . . . . . . . . . . .20
(c) Notice of Event of Default . . . . . . . . .21
(d) Agents' Fees . . . . . . . . . . . . . . . .21
(e) Further Assurances . . . . . . . . . . . . .21
(f) New Subsidiaries . . . . . . . . . . . . . .21
7.02 Incorporated Covenants From
Existing Loan Agreements. . . . . . . . . . . .22
7.03 Incorporation of Subordinated Debt Covenants. . .22
ARTICLE VIII EVENTS OF DEFAULT AND ACCELERATION. . . . . . . .23
8.01 Events of Default; Acceleration . . . . . . . . .23
ARTICLE IX THE ADMINISTRATIVE AGENT. . . . . . . . . . . . .24
9.01 Appointment and Authorization . . . . . . . . . .24
9.02 Reliance. . . . . . . . . . . . . . . . . . . . .25
9.03 Responsibilities. . . . . . . . . . . . . . . . .25
9.04 Reliance Upon Communications. . . . . . . . . . .25
9.05 Event of Default. . . . . . . . . . . . . . . . .26
9.06 No Representations. . . . . . . . . . . . . . . .26
9.07 Indemnification . . . . . . . . . . . . . . . . .27
9.08 Dealings with Credit Parties. . . . . . . . . . .27
9.09 Resignation . . . . . . . . . . . . . . . . . . .27
9.10 Agent . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . .28
10.01 Notices . . . . . . . . . . . . . . . . . . . . .28
10.02 Waiver. . . . . . . . . . . . . . . . . . . . . .29
10.03 Survival. . . . . . . . . . . . . . . . . . . . .29
10.04 Costs . . . . . . . . . . . . . . . . . . . . . .29
10.05 Amendments. . . . . . . . . . . . . . . . . . . .29
10.06 Year . . . . . . . . . . . . . . . . . . . . . .30
10.07 Set-Off . . . . . . . . . . . . . . . . . . . . .30
10.08 Payment on Business Day . . . . . . . . . . . . .31
10.09 Counterparts. . . . . . . . . . . . . . . . . . .31
10.10 Assignment. . . . . . . . . . . . . . . . . . . .31
10.11 Term . . . . . . . . . . . . . . . . . . . . . .32
10.12 Joint and Several Obligations of Borrowers. . . .32
10.13 Governing Law; Severability; Merger . . . . . . .32
10.14 Priority of Loans . . . . . . . . . . . . . . . .33
10.15 Dealings by Banks With Credit Parties . . . . . .33
10.16 No Deduction for Foreign Taxes. . . . . . . . . .33
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Exhibits
Exhibit A Bank Commitments
Exhibit B Form of Guaranty Agreement
Exhibit C Form of Guaranty Joinder Agreement
Exhibit D Form of Note
Exhibit E Form of Legal Opinion of Counsel to Borrowers
and Guarantee Subsidiaries
Exhibit F Subsidiaries
Exhibit G Interests in Other Persons
Exhibit H Existing Indebtedness
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<PAGE> EX-113
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of November 8, 1994 (the "Loan Agreement"),
is made by and among
AIRGAS, INC., a Delaware corporation ("Airgas"); and
AIRGAS HOLDINGS, INC., a Delaware corporation ("Holdings" - Airgas and
Holdings may be referred to individually herein as a "Borrower" and
collectively as the "Borrowers");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association
("NationsBank");
THE BANK OF NEW YORK, a New York corporation ("BNY" - hereinafter
NationsBank and BNY, together with their respective successors and assigns,
may be referred individually as a "Bank" and collectively as the "Banks");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association (in
its capacity as structuring and documentation agent, hereinafter referred to
in such capacity as the "Agent"); and
THE BANK OF NEW YORK, a New York corporation (in its capacity as
administrative agent for the Banks, hereinafter referred to in such capacity
as the "Administrative Agent").
RECITALS:
A. The Borrowers have requested that the Banks provide the Borrowers
with a $100,000,000.00 credit facility for the purposes of (i) financing the
acquisition of new Subsidiaries, (ii) financing other investments permitted
under this Loan Agreement and (iii) satisfying capital expenditure and working
capital needs of the Borrowers and the Guarantee Subsidiaries.
B. The Banks have agreed to provide the requested credit facility to
the Borrowers on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Borrowers, the Agent, the Administrative Agent and
the Banks agree as follows:
ARTICLE I
Definitions
1.01 For the purposes hereof:
"Adjusted Net Worth" means, as of any date of determination thereof, the
excess of (i) the amount of the "present fair saleable value" of the assets of
Holdings as of such date of determination, over (ii) the amount of all
"liabilities, contingent or otherwise", of Holdings as of such date of
determination, as such quoted terms are determined in accordance with
applicable Federal and state laws governing determinations of the insolvency
of debtors. In determining the Adjusted Net Worth for purposes of calculating
Holdings' Maximum Obligated Amount in respect of any Loan, the liabilities of
Holdings to be used in such determination pursuant to clause (ii) of the
preceding sentence shall in any event include the liabilities of Holdings
hereunder in respect of all Loans other than the Loan in respect of which such
calculation is being made;
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"Applicable Margin" means, with respect to any Eurodollar Loan, (i) for
each day of the Interest Period for such Eurodollar Loan occurring during the
period from the Closing Date through and including August 31, 1995, 1/2%, and
(ii) for each day of the Interest Period for such Eurodollar Loan occurring on
and after September 1, 1995, 3/4%;
"Borrowers' Obligations" means, without duplication, the obligations of
the Borrowers to the Banks, the Agent and the Administrative Agent (including
the obligations to pay principal of and interest on the Loans and to pay all
fees and other amounts payable by the Borrowers) hereunder and under the
Notes;
"Business Day" means any day not a Saturday, Sunday or legal holiday on
which each of the Banks is open for business; provided, however, that, when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London Interbank Market;
"Closing Date" means the date as of which this Loan Agreement is executed
by the Borrowers, the Banks, the Agent and the Administrative Agent and all of
the conditions precedent set forth in Article IV hereof have been satisfied;
"Commitment", for each Bank, means the commitment of such Bank to make
Loans in a maximum principal amount equal to the amount set forth beside the
name of such Bank on Exhibit A hereto, as the same may be reduced from time to
time in accordance with the terms of Section 2.05(b) hereof;
"Commitment Fee" has the meaning assigned to such term in Section 2.05(a)
hereof;
"Credit Party" means any of the Borrowers and the Guarantee Subsidiaries;
"Eurodollar Loan" means a Loan bearing interest based on the LIBOR Base
Rate;
"Event of Default" has the meaning given to said term in Section 8.01
hereof;
"Existing Loan Agreement" means that certain Sixth Amended and Restated
Loan Agreement dated as of August 30, 1994, as amended as of the date hereof,
by and among the Borrowers, the banks parties thereto and NationsBank, as
agent for such banks;
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions, with members of the Federal
Reserve System only, arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Administrative Agent);
"Guarantee Subsidiary" means each of the direct and indirect Subsidiaries
of Airgas which is a party to the Guaranty Agreement, including each direct or
indirect Subsidiary of Airgas which becomes a party to the Guaranty Agreement
pursuant to a Guaranty Joinder Agreement;
"Guaranty Agreement" means the Guaranty Agreement in the form of Exhibit
B attached hereto;
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"Guaranty Joinder Agreement" means a Guaranty Joinder Agreement
substantially in the form of Exhibit C attached hereto;
"Holdings' Maximum Obligated Amount" means, as of any date of
determination thereof, the sum of (i) with respect to each Loan (or portion
thereof) which is used (or the proceeds of which are used) to make a Valuable
Transfer, the outstanding amount of such Loan (or such portion thereof) as of
such date, plus (ii) with respect to each Loan (or portion thereof) which is
not used (or the proceeds of which are not used) to make a Valuable Transfer,
the lesser of (a) the outstanding amount of such Loan (or such portion
thereof) as of such date of determination or (b) the greater of (1) 95% of the
Adjusted Net Worth at the time of such Loan or (2) 95% of the Adjusted Net
Worth as of such date;
"Incorporated Covenants" has the meaning assigned to such term in Section
7.02 hereof;
"Incorporated Definitions" has the meaning assigned to such term in
Section 1.02 hereof;
"Incorporated Events of Default" has the meaning assigned to such term in
Section 8.01(e) hereof;
"Incorporated Representations and Warranties" has the meaning assigned to
such term in Section 6.01 hereof;
"Interest Payment Date" means, (i) as to any Eurodollar Loan having an
Interest Period of 1, 2 or 3 months, the last day of such Interest Period,
(ii) as to any Eurodollar Loan having an Interest Period longer than 3 months,
the last day of June, September, December and March in each year and the last
day of such Interest Period, and (iii) as to any Prime Loan, the last day of
March,
June, September and December in each year. If any Interest Payment Date falls
on a day which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day (unless the same would fall in a
succeeding month, in which case such Interest Payment Date shall be deemed to
be the first preceding Business Day);
"Interest Period" means, as to any Eurodollar Loan, the period commencing
on the date of such Eurodollar Loan and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the Borrowers may
elect; provided, however, that (i) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day, and (ii) no Interest Period
shall end later than the Termination Date;
"LIBOR Base Rate" means the rate at which deposits in the requested
aggregate amount and maturity are offered to BNY by prime banks in the London
Interbank Market as of 11:00 a.m. London time, on the second Business Day
prior to the applicable Interest Period, such rate being adjusted for the cost
of reserve requirements as prescribed by the Board of Governors of the Federal
Reserve System;
"Loan" means a loan made pursuant to Sections 2.01 and 2.02 hereof;
<PAGE> EX-116
"Loan Documents" means this Loan Agreement, the Notes and the Guaranty
Agreement (together with any Guaranty Joinder Agreement);
"Majority Banks" means, at any time, (i) the holders of at least 67% of
the aggregate unpaid principal amount of the Notes at such time, or (ii) if no
amounts are outstanding under any of the Notes, Banks having at least 67% of
the aggregate amount of the Commitments at such time;
"Note" or "Notes" means a promissory note or promissory notes, as the
case may be, of the Borrowers, executed and delivered as provided in Section
2.03 hereof;
"Prime Loan" means a Loan bearing interest based on the Prime Rate;
"Prime Rate" means the rate of interest per annum as announced publicly
in New York City by BNY as its prime commercial lending rate in effect from
time to time, which is not necessarily the best or lowest rate of interest
offered by BNY to its customers;
"Subordinated Debt" means (i) the indebtedness of up to $55,000,000.00
incurred by Airgas pursuant to the terms of the Senior Subordinated Note
Purchase Agreements, the repayment of which is subordinated to the repayment
of the indebtedness of Airgas to the Banks hereunder on terms described in the
Senior Subordinated Note Purchase Agreements, (ii) indebtedness incurred by
Airgas on substantially the terms and conditions as provided in the
Confidential Direct Placement Memorandum set forth as Schedule 5 attached
hereto and subordinated to the obligations of the Borrowers and the Guarantee
Subsidiaries under the Loan Documents on terms substantially similar to the
terms of subordination under the Subordinated Note Purchase Agreements,
provided that no Event of Default specified in Article VIII hereof, nor any
event which upon notice or lapse of time or both, would constitute such an
Event of Default, exists immediately prior to or would exist immediately after
such indebtedness is incurred, and (iii) additional subordinated indebtedness
incurred by Airgas provided that (A) no Event of Default specified in Article
VIII hereof, nor any event which upon notice or lapse of time or both, would
constitute such an Event of Default, exists immediately prior to or would
exist immediately after such additional subordinated indebtedness is incurred
and (B) all of the terms and conditions of such additional subordinated
indebtedness (including the terms relating to the subordination of such
indebtedness to the indebtedness of Airgas hereunder) are consented to by the
Majority Banks prior to the time such indebtedness is incurred; provided,
however, the aggregate outstanding principal balance of all indebtedness
referred to in subsections (i), (ii) and (iii) of this definition shall not
exceed $105,000,000.00 at any one time;
"Termination Date" means July 1, 1996;
"Unutilized Commitments" means, at any time, the excess of (i) the
aggregate Commitments at such time over (ii) the aggregate outstanding
principal balance of the Loans at such time; and
"Valuable Transfer" means (i) all loans, advances or capital
contributions made to or for the benefit of Holdings with any Loan (or with
any proceeds thereof), (ii) all debt securities or other obligations of
Holdings acquired from Holdings, retired by Holdings or collateralized by
Holdings with any Loan (or with any proceeds thereof), (iii) the fair market
value of all property acquired with any Loan (or with any proceeds thereof)
and transferred, absolutely and not as collateral, to Holdings and (iv) all
<PAGE> EX-117
equity securities of Holdings acquired from Holdings with any Loan (or with
any proceeds thereof).
1.02 All capitalized terms not otherwise defined herein shall have the
respective meanings assigned to such terms in the Existing Loan Agreement, as
in effect as of the date hereof (the "Incorporated Definitions"). The
incorporation by reference to the Existing Loan Agreement of the Incorporated
Definitions pursuant to this Section 1.02 shall survive the termination of the
Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Definitions pursuant to this Section 1.02, all references in the
Incorporated Definitions to the "Agent" shall be deemed to refer to the
Administrative Agent hereunder, all references in the Incorporated Definitions
to a "Bank" or the "Banks" shall be deemed to refer to one or more of the
Banks hereunder, all references in the Incorporated Definitions to the
"Majority Banks" shall be deemed to refer to the Majority Banks hereunder, all
references in the Incorporated Definitions to a "Guarantee Subsidiary" or the
"Guarantee Subsidiaries" shall be deemed to refer to one or more of the
Guarantee Subsidiaries hereunder, all references in the Incorporated
Definitions to the "Loan Agreement," or any similar references, shall be
deemed to refer to this Loan Agreement, all references in the Incorporated
Definitions to a "Note" or the "Notes" shall be deemed to refer to one or more
of the Notes issued pursuant to Section 2.03 hereof and all references in the
Incorporated Definitions to a "Loan Document" or the "Loan Documents," or any
similar references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01 hereof.
1.03 All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
ARTICLE II
Revolving Loans
2.01 Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make Loans to the Borrowers, or either of them, at any time
or from time to time on or after the date hereof and until the Termination
Date, in an aggregate principal amount at any time outstanding not exceeding
the amount of its then applicable Commitment; provided that, at no time shall
the aggregate principal balance of all outstanding Loans made by all of the
Banks exceed the aggregate Commitments of all of the Banks. The Borrowers may
borrow, repay and reborrow hereunder on or after the date hereof and prior to
the Termination Date, subject to the terms, provisions and limitations set
forth herein.
2.02 (a) The Loans made by the Banks on any one date shall be in a
minimum aggregate principal amount of $1,500,000.00 or in an integral multiple
of $100,000.00 in excess thereof. Loans shall be made ratably from the Banks
in accordance with their respective Commitments; provided, however, that the
failure of any Bank to make its Loan shall not in itself relieve any other
Bank of its obligation to lend hereunder. The initial Loan by each Bank shall
be made against delivery to such Bank of an appropriate Note, payable to the
order of such Bank, as referred to in Section 2.03 hereof. In the event any
Bank shall fail to make a Loan to the Borrowers in accordance with the terms
hereof, any other Bank may, but shall not be obligated to, make such Loan to
the Borrowers.
<PAGE> EX-118
(b) Each Loan shall be either a Eurodollar Loan or a Prime Loan (or a
combination thereof) as the Borrowers may request subject to and in accordance
with this Section. Subject to other provisions of this Section and the
provisions of Section 3.02 hereof, Loans of more than one type may be
outstanding at the same time.
(c) The Borrowers shall give the Administrative Agent prior written,
telefax or telephonic notice, no later than the Business Day of the proposed
borrowing in the case of a Prime Loan, and no later than three Business Days
prior to the Business Day of the proposed borrowing in the case of a
Eurodollar Loan, of each borrowing under Section 2.01 hereof. In each case,
such notice shall be irrevocable and shall specify the aggregate amount of the
proposed borrowing and the date thereof (which shall be a Business Day). Such
notice, to be effective, must be received by the Administrative Agent not
later than 10:00 a.m. (or 11:00 a.m. with respect to a Eurodollar Loan), New
York City time, on the Business Day specified for a borrowing consisting of a
Prime Loan and on the third Business Day prior to the date specified for a
borrowing consisting of a Eurodollar Loan. Such notice shall specify whether
the Loan then being requested is to be (or what portion or portions thereof
are to be) a Prime Loan or a Eurodollar Loan and, if such Loan or any portion
or portions thereof is to be a Eurodollar Loan, the Interest Period with
respect thereto. If no election is specified in such notice, such Loan (or
the portion thereof as to which no election is specified) shall be a Prime
Loan. The Administrative Agent shall promptly on the same day provide the
Banks notice that it has received notice from the Borrowers pursuant to this
paragraph. On the borrowing date specified in such notice, each Bank shall
make its ratable share of the borrowing available to the Borrowers at Bank of
New York ABA No. 021-0000-18 Agency Function Administration Account No.
8900065508 reference: Airgas, Inc., no later than 3:00 p.m., New York City
time, in Federal or other immediately available funds.
(d) Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrowers shall not in any notice of borrowing under this
Section 2.02 request any Eurodollar Loan which, if made, would result in an
aggregate of more than nine (9) separate Eurodollar Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, (i)
Eurodollar Loans made ratably by the Banks pursuant to a discrete borrowing,
conversion or continuation request shall be considered a single Loan and (ii)
Eurodollar Loans having different Interest Periods, regardless of whether they
commence or expire on the same date, shall be considered separate Loans. The
Borrowers may continue any Eurodollar Loan, or convert all or any part of any
Prime Loans or Eurodollar Loans into Loans of another type, in accordance with
Section 3.02 hereof and subject to the limitations set forth therein.
2.03 The Loans by each Bank shall be evidenced by a Note duly executed
on behalf of each of the Borrowers, dated the date hereof, in substantially
the form of Exhibit D attached hereto, payable to the order of such Bank in a
principal amount equal to the Commitment of such Bank. Each Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 2.04 hereof. The aggregate unpaid principal amount of the
Loans of each Bank at any time shall be the principal amount owing on the Note
of such Bank at such time. The principal amount of each Loan, as evidenced by
a Note, shall be due and payable on the Termination Date. All accrued and
unpaid interest on the outstanding principal balance of each Note shall be
payable as provided in Section 2.04 and Section 3.03(c) hereof; provided that,
if any such day is not a Business Day, such interest shall be payable on the
next succeeding Business Day (unless, in case of a Eurodollar Loan, the same
would fall in a succeeding month, in which case such principal shall be
<PAGE> EX-119
payable on the first preceding Business Day). All payments under the Notes
shall be made in accordance with Section 3.07 hereof.
2.04 (a) Subject to the provisions of Section 3.01 hereof, each Prime
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 365 days) equal to the Prime
Rate. Interest shall be payable on each Prime Loan quarterly on each Interest
Payment Date, commencing with the first of such dates to occur after the date
of such Prime Loan, and on the Termination Date or the date of conversion of
such Prime Loan to a Eurodollar Loan.
(b) Subject to the provisions of Section 3.01 hereof, each Eurodollar
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the LIBOR Base
Rate plus the Applicable Margin. Interest shall be payable on each Eurodollar
Loan on each applicable Interest Payment Date, and on the Termination Date,
the date of conversion of such Eurodollar Loan to a Prime Loan or the date of
continuation of such Eurodollar Loan for a subsequent Interest Period. The
Administrative Agent shall determine the applicable LIBOR Base Rate for each
Interest Period at 11:00 a.m., London time, or as soon as practicable
thereafter, on the date when such determination is to be made in respect of
such Interest Period and shall promptly and on the same day notify the
Borrowers and the Banks of the LIBOR Base Rate so determined. Such
determination shall be conclusive absent manifest error.
2.05 (a) The Borrowers jointly and severally agree to pay in immediately
available funds to the Administrative Agent (without offset or counterclaim),
for the account of the Banks, in consideration of the Commitments hereunder,
on the last day of each June, September, December and March, commencing with
the first such date after the date hereof, and on the date of any reduction or
termination of the Commitments of the Banks hereunder, a commitment fee
(hereinafter called for the purpose of this Section 2.05(a) the "Commitment
Fee") of 1/5% per annum (computed on the basis of the actual number of days
elapsed in a year of 365 days) on the average daily Unutilized Commitments
during the preceding period or quarter. The Commitment Fee shall commence to
accrue as of the date hereof and shall cease to accrue on the earlier of the
Termination Date or the date of termination of the Commitments of the Banks
hereunder.
(b) (i) The Borrowers may in full permanently terminate, or from time
to time in part permanently reduce, the Commitments, in each case upon at
least three Business Days' prior written, telefax or telephonic notice to the
Administrative Agent. Each partial reduction of the Commitments shall be in
an aggregate principal amount of $5,000,000.00 or in an integral multiple of
$1,000,000.00 in excess thereof. The Administrative Agent shall promptly on
the same day provide the Banks notice that it has received notice from
the Borrowers pursuant to this subparagraph.
(ii) In the case of any termination or reduction of the Commitments
pursuant to subparagraph (i) above, immediately after giving effect to such
termination or reduction the aggregate principal balance of all outstanding
Loans made by all of the Banks shall not exceed the aggregate Commitments of
all of the Banks. Each reduction in the aggregate Commitments pursuant to
subparagraph (i) above shall be made ratably among the Banks in accordance
with each Bank's Commitment.
<PAGE> EX-120
ARTICLE III
Additional Provisions Regarding
Loans
3.01 (a) Upon the occurrence and during the continuance of any Event of
Default, the Borrowers, jointly and severally, shall on demand from time to
time pay interest on the principal balance of the Loans and, to the extent
permitted by law, on overdue payments of interest and any other amounts
payable hereunder or under any of the other Loan Documents up to the date of
actual
payment (after as well as before judgment):
(i) in the case of principal of or interest on a
Loan, at a rate determined by the Administrative Agent to
be 2% per annum plus the rate which would otherwise be
payable under Section 2.04 hereof; and
(ii) in the case of any other amount payable
hereunder or under any of the other Loan Documents (other
than amounts referred to in clause (i) above), at a rate
equal to 2% per annum plus the Prime Rate.
(b) In the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a Eurodollar Loan,
any Bank shall have determined that dollar deposits in the amount of the
principal amount of and/or for the Interest Period for such Eurodollar Loan
are not generally available to such Bank in the London Interbank Market, or
that the rate at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to such Bank of making or maintaining
the principal amount of such Eurodollar Loan during such Interest Period, or
reasonable means do not exist for ascertaining the LIBOR Base Rate for such
Eurodollar Loan for such Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Administrative Agent and each other
Bank, and, until the circumstances giving rise to such notice no longer exist,
any request by the Borrowers for a Eurodollar Loan or for conversion to or
continuation of a Eurodollar Loan pursuant to Section 2.02 or 3.02 hereof
shall be deemed a request for a Prime Loan. Each determination by any of the
Banks hereunder shall be conclusive absent manifest error.
3.02 The Borrowers shall have the right, at any time, upon prior
written, telefax or telephonic notice to the Administrative Agent (which
notice shall be irrevocable and, to be effective, must be received by the
Administrative Agent not later than 11:00 a.m., New York City time, in the
case of Prime Loans, on the Business Day of any conversion, and in the case of
Eurodollar Loans, on the third Business Day preceding the date of any
continuation or conversion), (i) to continue any Eurodollar Loan or portion
thereof into a subsequent Interest Period and (ii) to convert any Loan or
portion thereof into a Loan of a different type, subject to the following:
(a) no Event of Default shall have occurred and be
continuing at the time of such continuation or
conversion, and the representations and warranties set
forth in Article VI hereof shall be true and correct in
all material respects on and as of the date of such
continuation or conversion with the same effect as though
such representations and warranties had been made on and
as of such date, except to the extent that such
<PAGE> EX-121
representations and warranties expressly relate to an
earlier date;
(b) if less than all Loans at the time outstanding
shall be continued or converted, such continuation or
conversion shall be made pro rata among the Banks in
accordance with the respective principal amounts of the
Loans held by the Banks immediately prior to such
continuation or conversion and the notice given to the
Banks by the Borrowers shall specify the aggregate amount
of Loans to be continued or converted;
(c) in the case of a continuation or conversion of
less than all Loans, the aggregate principal amount of
Loans continued or converted shall not be less than
$1,500,000.00 or shall be in an integral multiple of
$100,000.00 in excess thereof;
(d) each conversion or continuation shall be
effected by each Bank by applying the proceeds of the new
Prime Loan or Eurodollar Loan, as the case may be, to the
Loan (or portion thereof) being converted or continued,
and accrued interest on the Loan (or portion thereof)
being converted or continued shall be paid by the
Borrowers at the time of conversion or continuation, as
the case may be;
(e) if the new Loan made in respect of a conversion
or continuation shall be a Eurodollar Loan, the first
Interest Period with respect thereto shall commence on
the date of conversion or continuation, as the case may
be;
(f) no Interest Period shall be selected by the
Borrowers for a Loan converted to or continued as a
Eurodollar Loan if such Interest Period is not available
to the Borrowers pursuant to the terms of the definition
of "Interest Period" set forth in Section 1.01 and/or
pursuant to the terms of Section 3.01(b) or 3.05 hereof;
(g) a Eurodollar Loan may be converted to a Prime
Loan or continued as a Eurodollar Loan for a subsequent
Interest Period only on the last day of the Interest
Period therefor;
(h) each request for a conversion to or
continuation of a Eurodollar Loan which shall fail to
state an applicable Interest Period shall be deemed to be
a request for a Eurodollar Loan having an Interest Period
of one (1) month duration; and
(i) no more than nine (9) separate Eurodollar Loans
shall be outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing,
(i) Eurodollar Loans made ratably by the Banks pursuant
to a discrete borrowing, conversion or continuation
request shall be considered a single Loan and (ii)
Eurodollar Loans having different Interest Periods,
<PAGE> EX-122
regardless of whether they commence or expire on the same
date, shall be considered separate Loans).
In the event that the Borrowers shall not give notice to continue any
Eurodollar Loan into a subsequent Interest Period or convert any such Loan
into a Prime Loan, such Eurodollar Loan (unless repaid) shall automatically
become a Prime Loan at the expiration of the then current Interest Period
therefor.
3.03 (a) The Borrowers shall have the right at any time and from time to
time to prepay any Prime Loan, in whole or in part, without premium or
penalty, upon prior written, telefax or telephonic notice to the
Administrative Agent no later than 10:00 a.m., New York City time, on the
Business Day of the proposed prepayment; provided, however, that each such
partial prepayment shall be in the aggregate principal amount of at least
$1,500,000.00 (or in an integral multiple of $100,000.00 in excess thereof) or
the balance of such Loan, if less.
(b) The Borrowers shall have the right to prepay any Eurodollar Loan, in
whole or in part, upon at least three Business Days' prior written or
telephonic notice to the Administrative Agent; provided, however, that (i)
each such partial prepayment shall be in the aggregate principal amount of at
least $1,500,000.00 or in an integral multiple of $100,000.00 in excess
thereof and (ii) no such prepayment made before the last day of the Interest
Period in effect for such Eurodollar Loan shall be permitted unless
accompanied by payment of amounts specified in Section 3.06 hereof.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Loan by the amount stated therein. All prepayments
under this Section shall be shared pro rata by the Banks and shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment. Amounts prepaid under the Notes pursuant to this Section
prior to the Termination Date shall be available to be reborrowed from the
Banks under this Loan Agreement in accordance with the terms hereof.
3.04 (a) The cost to any Bank of making or maintaining any Eurodollar
Loans or of maintaining its Commitment may fluctuate as a result of imposition
hereafter of, or changes hereafter in, the reserve requirements promulgated by
the Board of Governors of the Federal Reserve System of the United States.
Accordingly, the Borrowers shall pay to each Bank such additional amount or
amounts as will compensate it for the effect of such reserve requirements
applicable to it, which determination shall be conclusive absent manifest
error. For purposes hereof, the aforesaid reserve requirements shall include
any reserve on Eurocurrency Liabilities as defined by Regulation D of said
Board at the ratios provided in such Regulation D from time to time. It is
hereby agreed that Eurodollar Loans made hereunder shall be deemed to
constitute Eurocurrency Liabilities (as defined in such Regulation D). Such
Bank shall promptly refund any amounts received by it pursuant to this Section
3.04(a) that were erroneously billed to the Borrowers together with interest
thereon at the Federal Funds Rate. The provisions of this subsection shall
survive termination of this Loan Agreement.
(b) In the event that after the date hereof any change in applicable law
or regulations or in the interpretation or administration thereof (including,
without limitation, any request, guideline or policy not having the force of
law) by any authority charged with the administration or interpretation
thereof shall occur which shall:
<PAGE> EX-123
(i) subject any Bank to any tax with respect to any
Eurodollar Loan (other than any tax on the overall net
income of such Bank imposed by the United States of
America or by the jurisdiction in which such Bank has its
principal office or political subdivision or taxing
authority therein); or
(ii) change the basis of taxation of any payment to
any Bank of principal of or interest on any Eurodollar
Loan or fees and other amounts payable hereunder, or any
combination of the foregoing; or
(iii) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held
by, deposits with or for the account of or loans or
commitments by an office of such Bank as it relates to
Eurodollar Loans or the Commitment of such Bank; or
(iv) impose upon such Bank any other condition with
respect to this Loan Agreement as it relates to
Eurodollar Loans or the Commitment of such Bank;
and the result of any of the foregoing shall be to increase the cost to such
Bank of making or maintaining any Eurodollar Loan or of maintaining its
Commitment or to reduce the amount of any payment (whether of principal,
interest or otherwise) received or receivable by such Bank, or to require such
Bank to make any payment in connection with any Eurodollar Loan by or in an
amount which such Bank in its sole reasonable judgment shall deem material,
then and in each such case the Borrowers agree to pay to such Bank, as
provided in paragraph (c) below (but without duplication of the payments
required under paragraph (a) above), such amounts as shall be necessary to
compensate such Bank for such cost, reduction or payment; provided, however,
that if any Bank shall request compensation under this Section 3.04(b) with
respect to any Eurodollar Loan, the Borrowers may, at their option and upon
written notice to the Banks, elect to convert such Eurodollar Loan of such
Bank into a Prime Loan upon the payment by the Borrowers of the increased
costs described above incurred prior to such conversion and any amount owing
in respect of Section 3.06 hereof, it being understood that (A) for purposes
of Sections 3.02 and 3.03 hereof, such Prime Loan, until the expiration of the
Interest Period of the Eurodollar Loan so converted into a Prime Loan, shall
be subject to prepayment or conversion or continuation only at such times and
on such conditions as the Eurodollar Loan from which it was converted and (B)
upon such increased costs being eliminated, or reduced by an amount deemed
sufficient by the Borrowers, such Prime Loan may be reconverted into a
Eurodollar Loan having an Interest Period expiring on the same date as the
Eurodollar Loan previously converted into such Prime Loan; provided further,
however, that if the result of any the foregoing shall be to decrease the cost
to any Bank of making or maintaining any Eurodollar Loan hereunder by a
material amount, then such Bank will credit to the Borrowers an amount equal
to such decreased costs. Promptly after actual notice to any Bank that a
change referred to in this paragraph has occurred, such Bank will give notice
of such occurrence to the Borrowers and the Administrative Agent. Each Bank
agrees that it will promptly refund any amounts received by it pursuant to
this Section 3.04(b) that were erroneously billed to the Borrowers together
with interest thereon at the Federal Funds
Rate. The provisions of this subsection shall survive termination of this
Loan Agreement.
<PAGE> EX-124
(c) Each Bank shall promptly deliver to the Borrowers from time to time
one or more certificates setting forth the amounts due to such Bank under
paragraph (a) or (b) above, the reserve requirements or changes as a result of
which such amounts are due and the manner of computing such amounts. Each
such certificate shall be conclusive in the absence of manifest error. The
Borrowers shall pay to each Bank the amounts shown as due on any such
certificate within 10 days after their receipt of the same. No failure on the
part of any Bank to demand compensation under paragraph (a) or (b) above on
any one occasion shall constitute a waiver of its right to demand such
compensation on any other occasion with respect to any other event. The
protection of this Section shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of any law,
regulation or other condition which shall give rise to any demand by such Bank
for compensation hereunder; provided, however, if such law, regulation or
other condition giving rise to such demand is determined to be invalid or
inapplicable, such Bank will promptly refund any amount erroneously billed to
the Borrowers together with interest thereon at the Federal Funds Rate.
3.05 (a) Notwithstanding anything to the contrary contained elsewhere
in this Loan Agreement, if any change after the date hereof in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof shall make it unlawful for a Bank to
make or maintain a Eurodollar Loan or to effect to its obligations as
contemplated hereby with respect to a Eurodollar Loan, then, by written notice
to the Borrowers, such Bank may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder, whereupon the
Borrowers shall be prohibited from requesting Eurodollar
Loans from such Bank hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to Prime Loans, whereupon all of
such Eurodollar Loans shall be automatically converted to
Prime Loans as of the effective date of such notice as
provided in paragraph (b) below (notwithstanding the
provisions of Section 3.07 hereof but subject to the
provisions of Section 3.06 hereof).
(b) For purposes of this Section 3.05, a notice to the Borrowers by any
Bank pursuant to paragraph (a) above shall be effective with respect to
outstanding Eurodollar Loans, if lawful, on the last day of the then current
Interest Period; in all other cases, such notice shall be effective on the
date of receipt by the Borrowers.
3.06 The Borrowers shall reimburse each Bank on demand for any actual
out-of-pocket loss incurred by it in the reemployment of the funds released by
any prepayment or conversion of any Eurodollar Loan required or permitted by
any other provision of this Loan Agreement if such Eurodollar Loan is prepaid
or converted other than on the last day of any Interest Period for such
Eurodollar Loan or upon any failure by the Borrowers to borrow or convert or
continue any Eurodollar Loan. Determinations by any Bank under this Section
3.06 shall be conclusive absent manifest error. The provisions of this
Section shall remain operative and in full force and effect regardless of the
expiration of this Loan Agreement.
<PAGE> EX-125
3.07 All payments and prepayments of principal, interest and fees (other
than the fees payable to the Administrative Agent or the Agent pursuant to
Section 7.01(d) hereof), subject to distinctions in the interest rates
applicable to any Loans as a consequence of the application of Section 3.04(b)
or Section 3.05 hereof, shall be made pro rata among the Banks in accordance
with the then outstanding principal amount of the Notes (or in accordance with
the Commitments if there are no amounts then outstanding under the Notes).
All payments by the Borrowers hereunder and under the Notes shall be made to
the Administrative Agent at its offices at New York City, for the account of
each Bank in dollars in Federal or other immediately available funds by 11:00
a.m. New York City time, on the date on which such payment shall be due. All
payments received by the Administrative Agent for the account of a Bank shall
be promptly on the same day remitted by the Administrative Agent to such Bank.
Upon receipt by a Bank of more than its pro rata share of any such payment,
whether voluntary or involuntary, it is hereby agreed among the Banks and the
Borrowers that the Bank receiving such excess payment (the "Receiving Bank")
shall be obligated to pay to the other Banks for application to the
obligations owing to such Bank hereunder, under such Bank's Note and under the
other Loan Documents an amount necessary to reduce the outstanding balances on
such obligations owing to such Bank to the balances that would be outstanding
on such obligations owing to such Bank if the Receiving Bank had not received
more than its pro rata share of such payment; provided, however, that in the
event any amount paid by any Receiving Bank to any other Bank pursuant to the
immediately preceding sentence is rescinded or must otherwise be returned by
the Receiving Bank, each other Bank shall, upon request of the Receiving Bank,
repay to the Receiving Bank the amount so paid by the Receiving Bank to such
Bank, with interbank compensation representing interest and adjustment penalty
for the period commencing on date such payment is returned by the Receiving
Bank until the date the Receiving Bank receives such repayment at the Federal
Funds Rate. Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan to but excluding the date on which such Loan
is paid in full.
3.08 In the event that any Bank shall have determined that the adoption
hereafter of or any change hereafter in any applicable law, rule, regulation
or guideline regarding capital adequacy, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
by any court, or compliance by such Bank (or any lending office of such Bank)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's capital or on the capital of such Bank's holding company as a
consequence of its obligations hereunder to a level below that which such Bank
or such Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies or the
policies of such Bank's holding company, as the case may be, with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time the Borrowers shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding company for any
such reduction suffered. Within a reasonable time after making a request for
such additional amount hereunder, such Bank will furnish to the Borrowers a
statement certifying the amount of such reduction and describing the event
giving rise to such reduction, which determination shall be conclusive absent
manifest error. Failure on the part of such Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute
a waiver of such Bank's rights to demand compensation for any increased costs
<PAGE> EX-126
or reduction in amounts received or receivable or reduction in return on
capital in such period or in any other period. The protection of this Section
3.08 shall be available to the Bank regardless of any possible conflict or
invalidity or inapplicability of the law, regulation or condition which shall
have been impaired. The provisions of this Section 3.08 shall remain
operative and in full force and effect regardless of the expiration of this
Loan Agreement.
3.09 Notwithstanding any other provision to the contrary contained in
this Loan Agreement or the Notes, the liability of Holdings with respect to
the Borrowers' Obligations shall not exceed Holdings' Maximum Obligated Amount
as determined at the earlier of the date of the commencement of a case under
the U.S. Bankruptcy Code in which Holdings is a debtor or the date enforcement
is sought against Holdings under Section 8.01 hereof with respect to the
Borrowers' Obligations.
ARTICLE IV
Conditions Precedent as of Closing Date
4.01 The obligations as of the Closing Date of the Banks to make any
Loans are subject to the conditions precedent that the Administrative Agent
shall have received on or before such day the following, in form and substance
satisfactory to the Administrative Agent:
(a) fully executed copies of this Loan Agreement
(including exhibits) and the Notes;
(b) a fully executed copy of the Guaranty Agreement;
(c) resolutions of the directors of each Credit Party
and the shareholders of each Credit Party (other than Airgas)
certified by an officer of such Credit Party as of the Closing
Date, authorizing the execution, delivery and performance of
the documents described in subparagraphs (a) and (b) above to
be executed by each such Credit Party;
(d) a certificate of the corporate secretary or an
assistant secretary of each Credit Party certifying the names
and true signatures of the officers of such Credit Party
authorized to sign the documents described in
subparagraphs (a) and (b) above on behalf of such Credit Party
and the other documents to be delivered hereunder;
(e) (i) the charter documents of Airgas Breathing Air
Systems, Inc. and Post Airgas, Inc. certified as of the
Closing Date by the Secretary of State of each such
corporation's state of incorporation and (ii) a certificate of
the corporate secretary or an assistant secretary of each
other Credit Party, certifying that the charter documents and
bylaws of such Credit Party previously delivered to
NationsBank in its capacity as agent under the Existing Loan
Agreement (and/or any prior agreement restated by the Existing
Loan Agreement) have not been amended since August 30, 1994
and through the Closing Date except as provided therein;
<PAGE> EX-127
(f) certificates of good standing for each of Airgas
Breathing Air Systems, Inc. and Post Airgas, Inc., issued as
of a recent date by the applicable jurisdiction of
incorporation and each other jurisdiction where any such
corporation by the nature of its business, is required to
qualify as a foreign corporation;
(g) the favorable opinion of Messrs. McCausland, Keen &
Buckman, counsel to the Credit Parties, substantially in the
form of Exhibit E hereto; and
(h) such other information and documents as the
Administrative Agent may reasonably request.
ARTICLE V
Conditions of Lending
5.01 The obligations of the Banks to make any Loans are subject to the
satisfaction of the conditions precedent set forth in Article IV hereof on the
Closing Date and to the satisfaction of the following further conditions:
(a) proper notice of such Loan shall have been
given in accordance with Section 2.02(c) hereof;
(b) the representations and warranties of the
Credite Parties set forth in Article VI hereof and in the
other Loan Documents shall be true and correct in all
material respects on and as of the date of such Loan with
the same effect as though such representations and
warranties had been made on and as of such date, except
to the extent that such representations and warranties
expressly relate to an earlier date;
(c) at the time of and immediately after giving
effect to each such Loan, no Event of Default, or any
event which upon notice or lapse of time or both would
constitute an Event of Default, shall have occurred and
be continuing; and
(d) at the time of and immediately after giving effect
to such Loan, the aggregate principal balance of all
outstanding Loans made by all of the Banks shall not exceed
the aggregate Commitments of all of the Banks.
5.02 Each borrowing hereunder shall be deemed to be a representation and
warranty by each of the Borrowers on the date of such borrowing as to the
matters specified in Sections 5.01(b), (c) and (d) hereof.
ARTICLE VI
Representations and Warranties
6.01 Each of the Borrowers represents and warrants that:
<PAGE> EX-128
(a) each of the Credit Parties is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and is duly authorized and qualified to carry on its business in the manner
now being conducted by it in states in which failure to so qualify would or
might have a material adverse effect on the business or operations of such
Credit Party;
(b) each of the Credit Parties has the legal power and authority to own
its properties and assets and to carry on its businesses as now being
conducted and as contemplated by this Loan Agreement and the other Loan
Documents;
(c) each of the Credit Parties has the power and authority to execute,
deliver and perform the Loan Documents to which such Credit Party is a party;
(d) when executed and delivered, the Loan Documents will be valid and
binding obligations of each Credit Party executing such Loan Documents and
will be enforceable in accordance with their respective terms;
(e) the execution, delivery and performance of the Loan Documents:
(i) have been duly authorized by all requisite
corporate action of each Credit Party executing such Loan
Documents required for the lawful creation and issuance
thereof;
(ii) do not violate any material provision of law,
any order of any court or other agency of government or
the corporate charter, certificate of incorporation or
by-laws of any Credit Party, or any provisions of any
indenture, agreement or other instrument to which such
Credit Party or its properties or assets are or will
become bound;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default or an event
which, upon notice or lapse of time, or both, would
constitute such an event of default under any indenture,
agreement or other instrument to which such Credit Party
is a party; and
(iv) do not and will not result in the creation of
any lien on any assets of any Credit Party;
(f) all of the direct and indirect Subsidiaries of Airgas as of the
Closing Date are set forth in Exhibit F attached hereto;
(g) except as set forth in Exhibit G attached hereto, as of the Closing
Date neither Airgas nor any of its Subsidiaries owns any interest in any
Person;
(h) the audited consolidated balance sheet, income statement and
statement of cash flows of Airgas and its Subsidiaries prepared as of June 30,
1994, copies of each of which have been furnished to each Bank, fairly present
the assets, liabilities and financial condition of Airgas and its Subsidiaries
as at the date thereof, all in accordance with Generally Accepted Accounting
Principles, and since such date to and including the date of this Loan
Agreement there has been no material adverse change in such condition or in
<PAGE> EX-129
the operations of Airgas and its Subsidiaries taken as a whole;
(i) none of Airgas or its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Loan will be used
whether directly or indirectly, incidentally or ultimately (i) to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock, or to refund indebtedness incurred
for such purpose, or (ii) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the regulations of the Board of
Governors of the Federal Reserve System, including without limitation
Regulation G, U, T or X thereof. If requested by the Administrative Agent,
each Borrower agrees that it will (and will cause each of its Subsidiaries to)
furnish to the Banks a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in said Regulation U; and
(j) no consent, approval or authorization of, or filing, registration or
qualification with, any governmental agency, authority, instrumentality or
regulatory body on the part of any Credit Party is required in conjunction
with the execution, delivery or performance by the Credit Parties, or for the
validity or enforceability, of the Loan Documents.
6.02 Each of the Borrowers hereby agrees that the representations and
warranties contained in Article XI (other than any of the representations and
warranties set forth in Section 11.01(a), (b), (c), (d), (e), (g), (h), (i),
(m) or (u)) of the Existing Loan Agreement, as in effect as of the date hereof
(the "Incorporated Representations"), are hereby incorporated by reference and
shall be as binding on the Borrowers as if set forth fully herein. The
incorporation by reference to the Existing Loan Agreement of the Incorporated
Representations pursuant to this Section 6.02 shall survive the termination of
the Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Representations pursuant to this Section 6.02, all references in
the Incorporated Representations to the "Agent" shall be deemed to refer to
the Administrative Agent hereunder, all references in the Incorporated
Representations to a "Bank" or the "Banks" shall be deemed to refer to one or
more of the Banks hereunder, all references in the Incorporated
Representations to the "Majority Banks" shall be deemed to refer to the
Majority Banks hereunder, all references in the Incorporated Representations
to a "Guarantee Subsidiary" or the "Guarantee Subsidiaries" shall be deemed to
refer to one or more of the Guarantee Subsidiaries hereunder, all references
in the Incorporated Representations to the "Loan Agreement," or any similar
references, shall be deemed to refer to this Loan Agreement, all references in
the Incorporated Representations to a "Note" or the "Notes" shall be deemed to
refer to one or more of the Notes issued pursuant to Section 2.03 hereof
and all references in the Incorporated Representations to a "Loan Document" or
the "Loan Documents," or any similar references, shall be deemed to refer to
one or more of the Loan Documents as defined in Section 1.01 hereof.
ARTICLE VII
Covenants
7.01 Each of the Borrowers covenants and agrees with the Banks, the
Agent and the Administrative Agent that, so long as this Loan Agreement shall
remain in effect or the principal of or interest on any Note or any other
expense or amount payable hereunder remains unpaid, and until the Commitments
<PAGE> EX-130
are terminated, unless the Majority Banks shall otherwise consent in writing,
it will and will cause each of its Subsidiaries to:
(a) use the proceeds of the Loans for the purposes set forth in RECITAL
A hereof;
(b) defend, indemnify and hold harmless the Banks, the Administrative
Agent, their employees, agents, officers, affiliates and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses (including without limitation
attorney and consultant fees, court costs and litigation expenses) of whatever
kind or nature, known or unknown, contingent or otherwise, arising out of or
in any way related to any acquisition permitted by, and/or financed with the
proceeds of any borrowings made pursuant to, this Loan Agreement, including,
without limitation, all claims of the seller or sellers of any acquired
company;
(c) deliver to the Banks forthwith, upon any Executive Officer of Airgas
obtaining knowledge of an Event of Default or an event which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both, a certificate of the chief financial officer or other
Executive Officer of Airgas specifying the nature and period of existence
thereof and what action the Borrowers propose to take with respect thereto;
(d) pay (i) to the Administrative Agent the fees set forth, and at the
times specified, in the letter agreement of even date herewith between BNY and
the Borrowers and (ii) to the Agent the fees set forth, and at the times
specified, in the letter agreement of even date herewith between NationsBank
and the Borrowers;
(e) execute any and all further documents, agreements and instruments,
and take all further actions which may be required under applicable law, or
which the Majority Banks may reasonably request, in order to effectuate the
transactions contemplated by this Loan Agreement; and
(f) cause (i) each of Mauritius Industrial Gases, Inc., Poligaz, S.A.
and Airgas Polska sp. z oo at such time as any such Subsidiary shall have
total assets of at least $3,000,000 and (ii) each other Subsidiary hereafter
acquired by any Credit Party prior to the Termination Date (A) to become a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement and (B) to
deliver to the Administrative Agent such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, certified corporate resolutions and other
corporate documents of such Person and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the obligations of such Subsidiary under the
Guaranty Agreement); provided, however, with respect to any such Subsidiary
described above which is a Canadian Subsidiary (1) such Canadian Subsidiary
shall not be obligated to so guarantee the obligations of the Borrowers during
the 90 day period immediately succeeding the date of acquisition of such
Canadian Subsidiary and (2) if, subsequent to such Canadian Subsidiary
becoming a Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement, any
Canadian Lender has agreed to provide financing to such Canadian Subsidiary to
provide for the working capital, capital expenditure, acquisition costs and/or
letter of credit needs of such Canadian Subsidiary, then, promptly upon the
request of the Borrowers, the Administrative Agent (on behalf of the Banks)
shall thereupon release such Canadian Subsidiary from the Guaranty Agreement.
<PAGE> EX-131
The provisions of subsection (b) of this Section 7.01 shall remain operative
and in full force and effect regardless of the expiration of this Loan
Agreement, notwithstanding anything to the contrary set forth in this Loan
Agreement or any other of the Loan Documents.
7.02 Each of the Borrowers hereby agrees that the affirmative and
negative covenants contained in Articles XII and XIII of the Existing Loan
Agreement, as in effect as of the date hereof (the "Incorporated Covenants"),
are hereby incorporated by reference and shall be as binding on the Borrowers
as if set forth fully herein, except that, for purposes hereof, Exhibit Q to
the Existing Loan Agreement referred to in Section 13.01(a)(ii) of the
Existing Loan Agreement shall be deemed to refer to Exhibit H attached hereto.
The incorporation by reference to the Existing Loan Agreement of the
Incorporated Covenants pursuant to this Section 7.02 shall survive the
termination of the Existing Loan Agreement. For purposes of the incorporation
of the Incorporated Covenants pursuant to this Section 7.02, all references in
the Incorporated Covenants to the "Agent" shall be deemed to refer to the
Administrative Agent hereunder, all references in the Incorporated Covenants
to a "Bank" or the "Banks" shall be deemed to refer to one or more of the
Banks hereunder, all references in the Incorporated Covenants to the "Majority
Banks" shall be deemed to refer to the Majority Banks hereunder, all
references in the Incorporated Covenants to a "Guarantee Subsidiary" or the
"Guarantee Subsidiaries" shall be deemed to refer to one or more of the
Guarantee Subsidiaries hereunder, all references in the Incorporated Covenants
to the "Loan Agreement," or any similar reference, shall be deemed to refer to
this Loan Agreement, all references in the Incorporated Covenants to a "Note"
or the "Notes" shall be deemed to refer to one or more of the Notes issued
pursuant to Section 2.03 hereof and all references in the Incorporated
Covenants to a "Loan Document" or the "Loan Documents," or any similar
reference, shall be deemed to refer to one or more of the Loan Documents as
defined in Section 1.01 hereof.
7.03 The covenants of Airgas (i) contained in Section 10 of each of the
Senior Subordinated Note Purchase Agreements, as such covenants may be amended
or modified from time to time and (ii) contained in any documentation
evidencing or executed in connection with any other Subordinated Debt as such
documents may be amended or modified from time to time, are (until termination
of the applicable Subordinated Note Purchase Agreement or the applicable
documentation evidencing or executed in connection with such other
Subordinated Debt, as the case may be) hereby incorporated herein by reference
and shall be as binding on the Borrowers as if set forth fully herein.
ARTICLE VIII
Events of Default and Acceleration
8.01 If any of the following events (the "Events of Default") shall
occur and be continuing:
(a) (i) the failure of the Borrowers to make when due any payment of
interest, fees or other amounts required by this Loan Agreement and/or any of
the other Loan Documents (other than a payment of principal) and the
continuation of such failure for five (5) days; or (ii) the failure of the
Borrowers to make when due any payment of principal required by this Loan
Agreement and/or any of the Notes;
<PAGE> EX-132
(b) the failure of any Credit Party to comply with any other terms and
conditions in this Loan Agreement (including without limitation any covenant
incorporated herein by reference pursuant to Section 7.02 or Section 7.03
hereof) or the other Loan Documents within 30 days after the earlier to occur
of (i) written notice from the Administrative Agent specifying the default and
requesting that it be remedied; or (ii) an Executive Officer of Airgas becomes
aware of such violation;
(c) any representation or warranty made by the Credit Parties, or any of
them, herein (including without limitation any representation or warranty
incorporated herein by reference pursuant to Section 6.02 hereof) or in any of
the other Loan Documents or in any certificate, statement or report heretofore
or hereafter made (or deemed made pursuant to Article V hereof) shall be
untrue in any material respect when made (or deemed made);
(d) an event of default shall occur under any of the other Loan
Documents; or
(e) the occurrence of an "Event of Default" under and as defined in the
Existing Loan Agreement, as in effect as of the date hereof, which "Events of
Default" (the "Incorporated Events of Default"), are hereby incorporated
herein by reference and shall be as binding on the Borrowers as if set forth
fully herein, such incorporation by reference to survive termination of the
Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Events of Default pursuant to this Section 8.01(e), all
references in the Incorporated Events of Default to the "Agent" shall be
deemed to refer to the Administrative Agent hereunder, all references in the
Incorporated Events of Default to a "Bank" or the "Banks" shall be deemed to
refer to one or more of the Banks hereunder, all references in the
Incorporated Events of Default to the "Majority Banks" shall be deemed to
refer to the Majority Banks hereunder, all references in the Incorporated
Events of Default to a "Guarantee Subsidiary" or the "Guarantee Subsidiaries"
shall be deemed to refer to one or more of the Guarantee Subsidiaries
hereunder, all references in the Incorporated Events of Default to the "Loan
Agreement," or any similar references, shall be deemed to refer to this Loan
Agreement, all references in the Incorporated Events of Default to a "Note" or
the "Notes" shall be deemed to refer to one or more of the Notes issued
pursuant to Section 2.03 hereof and all references in the Incorporated Events
of Default to a "Loan Document" or the "Loan Documents," or any similar
references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01 hereof;
then, during the continuance of any such event (other than an event described
in Section 14.01(d) of the Incorporated Events of Default), the Administrative
Agent may and shall upon request of any Bank with respect to an event
described in subparagraph (a) above or upon the request of the Majority Banks
with respect to any other Event of Default (other than an event described in
Section 14.01(d) of the Incorporated Events of Default), by written notice to
the Borrowers, take any or all of the following actions, at the same or
different times: (i) terminate forthwith the Commitments of all the Banks
hereunder; (ii) declare the Notes and all fees and other amounts payable
hereunder to be forthwith due and payable, whereupon the Notes, both as
toprincipal and interest, and all fees and other amounts payable hereunder,
shall become forthwith due and payable without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by each
of the Borrowers, anything contained herein or in the Notes to the contrary
notwithstanding; and (iii) pursue any other remedy under this Loan Agreement
or any other Loan Document or otherwise; and, in any event described in
<PAGE> EX-133
Section 14.01(d) of the Incorporated Events of Default, the Commitments of all
the Banks hereunder shall automatically terminate and the Notes, both as to
principal and interest, and all fees and other amounts payable hereunder,
shall automatically become due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by each of the Borrowers, anything contained herein or in the Notes to the
contrary notwithstanding, and the Administrative Agent may pursue any other
remedy under this Loan Agreement or any other Loan Document or otherwise.
ARTICLE IX
The Administrative Agent
9.01 Each Bank hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Bank under this Loan
Agreement and the other Loan Documents, and each Bank hereby irrevocably
authorizes the Administrative Agent, as the agent for such Bank, to take such
action on its behalf under the provisions of this Loan Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Loan
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Loan Agreement, or any of the other Loan Documents, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or the other
Loan Documents or otherwise exist against the Administrative Agent.
9.02 The Administrative Agent may execute any of its duties under this
Loan Agreement or the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.03 Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with any of the Loan Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Credit Parties contained in any of
the Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, the Loan Documents or the enforceability or sufficiency
of any of the Loan Documents, or for any failure of any Credit Party to
perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, any of the Loan Documents or to inspect the properties, books
or records of the Credit Parties.
9.04 The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been given, signed, sent
<PAGE> EX-134
or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the credit Parties),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under any of the Loan Documents unless it shall
first receive such advice or concurrence of the Banks as it deems appropriate
or it shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any of
the Loan Documents in accordance with a request of the Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks and all future holders of the Notes.
9.05 The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default (or of any event or condition
which, upon notice or lapse of time, or both, would constitute such an Event
of Default) unless the Administrative Agent has received notice from a Bank or
a Credit Party referring to the applicable Loan Document and describing such
Event of Default (or other such event or condition). In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Event of Default (or other event or condition) as
shall be directed in accordance with Section 8.01 or Section 10.05 hereof;
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Event of Default (or other event or condition) as it shall deem advisable in
the best interests of the Banks.
9.06 Each Bank expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Administrative Agent or any affiliate thereof hereafter taken,
including any review of the affairs of the Credit Parties, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
each of the Credit Parties and made its own decision to make its Loans
hereunder and enter into this Loan Agreement. Each Bank also represents that
it will, independently and without reliance upon the Administrative Agent or
the other Banks, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Loan Agreement, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of each of the Credit Parties. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Credit Parties which may come into the
<PAGE> EX-135
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.07 The Banks agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrowers, or either of
them, and without limiting the obligation of the Borrowers, and each of them,
to do so), ratably according to the respective amounts outstanding to the
Borrowers, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Bank shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct; provided, further, no Bank shall be obligated for the
ratable share of such indemnity obligations of any other Bank. The agreements
in this subsection shall survive the payment of the Notes and all other
amounts payable hereunder.
9.08 BNY and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any of the Credit Parties as
though BNY were not the Administrative Agent hereunder. With respect to its
Loans made or renewed by it and the Note issued to it, BNY shall have the same
rights and powers under this Loan Agreement as any Bank and may exercise the
same as though it were not the Administrative Agent.
9.09 The Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers and may be removed at any time
with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative
Agent, then the retiring Administrative Agent shall select a successor
Administrative Agent provided such successor Administrative Agent is a
commercial bank organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$400,000,000.00. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Loan Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Loan Agreement and the other Loan Documents.
9.10 Except as otherwise expressly provided for herein, the Agent, in
its capacity as such, shall have no duties or obligations under this Loan
Agreement or any of the other Loan Documents.
<PAGE> EX-136
ARTICLE X
Miscellaneous
10.01 All notices, requests and demands to or upon the respective
parties hereto shall be conclusively deemed to have been received by such
party hereto and be effective on the day on which delivered to such party at
the address set forth below or to such other address as such party shall
specify to the other parties hereto in writing, or, if sent prepaid by
registered mail, on the third day after the day on which mailed, addressed to
such party at such address:
(a) if to the Borrowers:
Airgas, Inc.
Airgas Holdings, Inc.
Five Radnor Corporate Center, Suite 550
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Britton H. Murdoch
[Courtesy Copy to:
McCausland, Keen & Buckman
Five Radnor Corporate Center, Suite 500
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Melvin J. Buckman, Esq.]
(b) if to the Banks
(i) NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
(ii) The Bank of New York
One Wall Street
New York, New York 10286
Attention: Michael V. Flannery, Jr.
(c) if to the Administrative Agent
The Bank of New York
One Wall Street, 18th North
New York, New York 10286
Attention: Ms. Kalyani Bose
Telephone: 212/635-4693
Fax: 212/635-6365
<PAGE> EX-137
10.02 No failure or delay on the part of any of the Banks or the
Administrative Agent in the exercise of any right, power or privilege
hereunder or under any other Loan Document shall operate as a waiver of any
such right, power or privilege nor shall any such failure or delay preclude
any other or further exercise thereof. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided
by law.
10.03 All covenants, agreements, representations and warranties made
herein and in the other Loan Documents shall survive the making by the Banks
of the Loans and the execution and delivery to the Banks of the Loan Documents
and shall continue in full force and effect so long as any of the indebtedness
of any of the Borrowers to the Banks or any obligations of the Banks under the
Commitments remain outstanding. Whenever in this Loan Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, provisions and
agreements by or on behalf of the Credit Parties, and each of them, which are
contained in the Loan Documents shall inure to the benefit of the successors
and assigns of the Banks.
10.04 The Borrowers jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent and the Agent in
connection with the preparation, execution and delivery of the Loan Documents,
including, without limitation, the reasonable fees and out-of-pocket expenses
of Moore & Van Allen, PLLC, special counsel to the Administrative Agent and
the Agent, and out-of-pocket costs and expenses of the Banks in connection
with the enforcement of this Loan Agreement and the other Loan Documents and
to hold the Banks harmless from any and all such costs, expenses and
liabilities. In addition, the Borrowers jointly and severally agree to pay to
each Bank an amendment fee of not less than $3,000.00 on the effective date of
each agreement hereafter entered into among the Borrowers and the Banks (or
the Administrative Agent on behalf of the Banks) effecting any material
amendment, modification or waiver of the terms of this Loan Agreement,
including without limitation any such agreement relating to any provision set
forth in Article V, Article VI, Article VII or Article VIII hereof. The
provisions of this Section shall survive the termination of this Loan
Agreement.
10.05 With the written consent of the Majority Banks, the Administrative
Agent and the Borrowers may, from time to time, enter into written amendments,
supplements or modifications hereto for the purpose of adding any provisions
to this Loan Agreement, the Notes or any of the other Loan Documents or
changing in any manner the rights of the Banks or of the Borrowers hereunder
or thereunder, and with the consent of the Majority Banks the Administrative
Agent on behalf of the Banks may execute and deliver to the Borrowers a
written instrument waiving, on such terms and conditions as the Administrative
Agent or Majority Banks may specify in such instrument, any of the
requirements of this Loan Agreement or any other Loan Document or any Event of
Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) extend the maturity of
any Note, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or change the amount or term
of any Commitment, or change the amount or time for payment of the Commitment
Fee, or amend, modify or waive any provision of this Section 10.05 or reduce
the percentage specified in the definition of "Majority Banks" set forth in
Section 1.01 hereof, or amend, modify or waive any provision of any Loan
Document requiring action or approval by all of the Banks, or waive an Event
of Default specified in Section 8.01(a) hereof, or consent to the assignment
<PAGE> EX-138
or transfer by either Borrower of any of its rights and obligations under this
Loan Agreement, or release either Borrower from its obligations under this
Loan Agreement or release any Guarantee Subsidiary from its obligations under
the Guaranty Agreement (except as otherwise permitted by such Section 7.01(f)
hereof), or amend, modify or waive any provision of the Loan Documents if such
amendment, modification or waiver would have the effect of releasing any
collateral security (including, without limitation, any guarantee) granted
thereby or the obligations to the Administrative Agent, the Agent and the
Banks of the parties thereof, in each case without the written consent of all
the Banks, (b) amend, modify or waive any provision of Article IX hereof
(other than Section 9.10 hereof) without the written consent of the then
Administrative Agent or (c) amend, modify or waive the terms of Section 9.10
hereof without the written consent of the Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon the Borrowers, and each of them, the Banks, the
Agent, the Administrative Agent and all future holders of the Notes. In the
case of any waiver of the requirements of this Loan Agreement, any other Loan
Document or the Notes, the parties thereto shall be restored to their former
position and rights thereunder, and any Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Event of Default, or impair any right consequent thereon.
10.06 Except as otherwise provided for hereunder, interest, fees and
premiums hereunder shall be computed on the basis of a three hundred
sixty-five (365) day year for the actual number of days in the billing period.
10.07 Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent
specified by Section 8.01 hereof to authorize the Administrative Agent to
declare the Notes and all other obligations owing to the Banks, the
Administrative Agent and the Agent hereunder and under the other Loan
Documents due and payable pursuant to the provisions of Section 8.01 hereof,
each Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing at such Bank to or for the credit or
the account of either of the Borrowers against any and all of the obligations
of the Borrowers now or hereafter existing under this Loan Agreement, the
Notes and the other Loan Documents and although such obligations may be
unmatured.
10.08 Except as otherwise provided for hereunder, should any installment
or other payment of the principal of or interest on the Notes become due and
payable on other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day thereafter and in the case of an
installment of principal, interest shall be payable thereon at the rate per
annum herein specified during such extension.
10.09 This Loan Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, and
it shall not be necessary in making proof of this Loan Agreement to produce or
account for more than one such counterpart.
<PAGE> EX-139
10.10 (a) Any Bank may, at any time upon written notice thereof to the
Administrative Agent and the Borrowers, transfer or assign all or any portion
of the indebtedness evidenced by the Note held by such Bank and the Commitment
of such Bank hereunder and all of the other rights and obligations of such
Bank hereunder and under the other Loan Documents and the terms hereof shall
extend to any subsequent holder of the Note; provided, however, that any
assignment by a Bank hereunder shall (i) be subject to the prior written
consent of Airgas, the Agent and the Administrative Agent (in any case not to
be unreasonably withheld) and (ii) be in a minimum principal amount of
$5,000,000.00 or in an integral multiple of $1,000,000.00 in excess thereof.
On the effective date of any assignment, Exhibit A is deemed amended to
reflect such assignment.
(b) Any Bank may at any time sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Loan Agreement and the other Loan Documents; provided, however, that (1) such
Bank's obligations under this Loan Agreement shall remain unchanged, (2) such
Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (3) each participating bank or other entity
shall be entitled to the benefit of the cost protection provisions contained
in Sections 3.04, 3.05, 3.06, 3.08 and 3.09 hereof, except that all claims and
petitions for payment and payments made pursuant to such Sections shall be
made through such selling Bank and except that a participant shall not be
entitled to receive pursuant to such provisions an amount larger than its
share of the amount to which the selling Bank would have been entitled had no
such sale been made, and (iv) the Borrowers, the Administrative Agent and the
other Banks shall continue to deal solely and directly with such selling Bank
in connection with such Bank's rights and obligations under this Loan
Agreement and the other Loan Documents, and such Bank shall retain the sole
right (and participating banks or other entities shall have no right) to
enforce the obligations of any Credit Party under the Loan Documents and to
approve any amendment, modification or waiver of any provision of this Loan
Agreement or any of the other Loan Documents (other than amendments,
modifications or waivers requiring, pursuant to the terms of Section 10.05
hereof, unanimous consent of the Bank).
(c) Any Bank may pledge all or any portion of its rights under this Loan
Agreement and/or its Note to a Federal Reserve Bank. No such pledge shall
release any Bank from its obligations hereunder or substitute any such Federal
Reserve Bank for such Bank as a party hereto.
10.11 The term of this Loan Agreement shall be until the Commitments of
the Banks hereunder shall have terminated and the Banks have received payment
in full of the unpaid principal and interest of the Notes and all other
amounts payable hereunder.
10.12 All obligations of the Borrowers hereunder and under the Notes
shall be joint and several obligations of the Borrowers.
10.13 (a) All documents executed pursuant to the transactions
contemplated herein including without limitation this Loan Agreement, the
Notes and the other Loan Documents shall be deemed to be contracts made under,
and for all purposes shall be construed in accordance with, the internal laws
and judicial decisions of the State of North Carolina. Each of the Borrowers
hereby submits to the nonexclusive jurisdiction and venue of the state and
federal courts of North Carolina for the purpose of resolving disputes
hereunder or under the other Loan Documents or for the purposes of collection.
Each of the Borrowers hereby agrees that both the federal and state courts in
<PAGE> EX-140
Mecklenburg County, North Carolina are a convenient forum and agrees not to
raise as a defense that such courts are not a convenient forum.
(b) In the event any one or more of the provisions contained in this
Loan Agreement should be held invalid, illegal or unenforcable in any respect,
the validity, legality and enforcability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
(c) This Loan Agreement and the other Loan Documents and agent's fee
letters constitute the entire contract among the parties relative to the
subject matter hereof and thereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Loan
Agreement.
10.14 The payment of the indebtedness of the Borrowers to the Banks
hereunder and under the Notes is senior to the payment of the indebtedness of
the Borrowers under the Senior Subordinated Note Purchase Agreements and each
Note Guaranty (as defined in the Senior Subordinated Note Purchase Agreements)
in accordance with the terms thereof.
10.15 Nothing contained herein shall be deemed to limit the right of any
Bank (or any of its affiliates) to make loans to, accept deposits from and
generally engage in any kind of business with any Credit Party.
10.16 The Borrowers hereby agree that all payments and prepayments of
principal, interest and fees required to be made hereunder or under any of the
other Loan Documents shall be without deduction for or on account of any
present or future taxes, duties or other charges levied or imposed by any
foreign nation or any political subdivision or taxing authority thereof.
[The remainder of this page has been left blank intentionally.]
<PAGE> EX-141
IN WITNESS WHEREOF, each of the parties hereto has caused this Loan
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AIRGAS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/M.Gregory Seaton
_____________________________________
Title: Vice President
___________________________________
THE BANK OF NEW YORK
By: /s/Michael V. Flannery
_____________________________________
Title: Vice President
___________________________________
NATIONSBANK OF NORTH CAROLINA, N.A.,
as Agent
By: /s/M.Gregory Seaton
_____________________________________
Title: Vice President
___________________________________
THE BANK OF NEW YORK,
as Administrative Agent
for the Banks
By: /s/Michael V. Flannery
_____________________________________
Title: Vice President
____________________________________
<PAGE>
<PAGE> EX-142
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<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> MAR-31-1995
<PERIOD-END> MAR-31-1995
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0
0
<OTHER-SE> 189,337
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<EPS-PRIMARY> .96
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