<PAGE>
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
June 28, 1996
AIRGAS, INC.
______________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 1-9344 56-0732648
_______________ _______________________ _____________
(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification
incorporation) No.)
100 Matsonford Road, Suite 550
Radnor, PA 19087
_______________________________________
(Address of principal executive offices)
Registrant's telephone number, including area code: (610) 687-5253
_______________
<PAGE> 2
Signatures
__________
The undersigned Registrant hereby amends the following items, financial
statements, exhibits or other portions of its Current Report on Form 8-K filed
on June 28, 1996 as set forth in the pages attached hereto:
(List all such items, financial statements,
exhibits or other portions amended)
The following items of the Form 8-K are amended:
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AIRGAS, INC.
_____________________
(Registrant)
BY: /s/Britton H. Murdoch
______________________
Britton H. Murdoch
Vice President - Finance
Chief Financial Officer
DATED: July 10, 1996
<PAGE>
<PAGE> 3
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
__________________________________________________________________
A current report on Form 8-K was filed on June 28, 1996 by the Company
describing the Company's 45% investment in National Welders Supply Company,
Inc. ("NWS") as required under Item 2 of Form 8-K. This Form 8-K/A provides
audited financial statements as of September 30, 1995 and September 24, 1994
and for the years then ended and pro forma information for NWS which were
previously unavailable pursuant to Item 7 (a) (4).
(a) Financial Statements
1. Audited consolidated balance sheets of NWS as of September 30, 1995
and September 24, 1994 and the related consolidated statements of
income and retained earnings, changes in shareholders' equity, and
cash flows for the years then ended are hereby filed as part of this
report.
2. Unaudited interim consolidated balance sheets of NWS as of March 25,
1996 and 1995 and the related consolidated statements of income and
cash flows for the six months then ended are hereby filed as part of
this report.
(b) Pro Forma Financial Information
The tables on pages four through eight set forth unaudited pro forma
condensed balance sheet and income statement information as of
March 31, 1996 and for the year then ended as if the Company's
investment in NWS had been consummated on April 1, 1995.
(c) Exhibits
4. NationsBank $100 million Revolving Credit Facility dated June 28,
1996
23.1 Consent of Independent Public Accountants, Arthur Andersen LLP
<PAGE>
<PAGE> 4
<TABLE>
AIRGAS, INC.
UNAUDITED PRO FORMA CONDENSED BALANCE SHEET
(DOLLARS IN THOUSANDS)
<CAPTION>
March 31, 1996
__________________________________________________
Airgas, Inc. Pro Forma Notes Airgas Pro
(Historical) Adjustments Ref. Forma (4)
____________ ____________ ___ _________
<C> <C> <C> <C>
Accounts Receivable, Net $120,811 $120,811
Inventories 86,162 86,162
Other Current Assets 11,601 11,601
_______ _______
218,574 218,574
Property, Plant &
Equipment, Net 438,877 438,877
Goodwill, Net 165,243 165,243
Investment in Unconsolidated
Affiliates 9,332 $48,306 (1) 57,638
Other Noncurrent Assets 51,616 51,616
_______ ______ _______
$883,642 $46,200 $931,948
======= ====== =======
Current Portion of
Long-Term Debt $ 12,179 $ 12,179
Accounts Payable,Trade 52,528 52,528
Accrued Expenses and
Other Current
Liabilities 72,279 750 (2) 73,029
_______ _______
Current Liabilities 136,986 137,736
Long Term Debt 385,832 $47,556 (3) 433,388
Other Liabilities 36,215 36,215
Deferred Income Taxes 88,400 88,400
Stockholders' Equity 236,209 236,209
_______ ______ _______
$883,642 $46,200 $931,948
======= ====== =======
<FN>
(1) Represents the purchase price for an investment in the voting capital
stock of National Welders Supply Company, Inc.
(2) Increased liabilities relating to transaction costs incurred at closing.
(3) Represents debt incurred to finance the purchase an investment in the
voting capital stock in National Welders Supply Company, Inc.
(4) See accompanying notes to unaudited pro forma condensed financial
statements on pages 6 and 7.
</TABLE>
<PAGE> 5
<TABLE>
AIRGAS, INC.
UNAUDITED PRO FORMA CONDENSED STATEMENT OF INCOME
(DOLLARS IN THOUSANDS, EXCEPT
FOR PER SHARE AMOUNTS)
<CAPTION>
Year Ended March 31, 1996
____________________________________________
Airgas
Airgas, Inc. Pro Forma Notes Pro
(Historical) Adjustments Ref.(1) Forma
____________ ____________ _______ _____
<C> <C> <C> <C>
Net Sales $838,144 $838,144
Cost of Products Sold
(Excluding Depreciation
and Amortization) 419,491 419,491
Selling, Distribution
& Administrative Expenses 279,906 279,906
Depreciation & Amortization 45,762 45,762
_______ _______
Total Costs & Expenses 745,159 745,159
_______ _______
Operating Income 92,985 92,985
Interest Expense, Net (24,862) $(3,210) a (28,072)
Other Income, Net 557 557
Equity in Income (loss) of
Unconsolidated Affiliates 225 (1,479) c (1,254)
Minority Interest (663) (663)
_______ ______ _______
Earnings Before Income Taxes 68,242 (4,689) 63,553
Income Taxes 28,522 (1,580) b 26,942
_______ ______ _______
Net Earnings $ 39,720 $(3,109) $ 36,611
======= ====== =======
Earnings Per Share (2) $ .60 $ .56
======= =======
Weighted Average Shares 66,215 65,303
======= =======
<FN>
Notes:
(1) See accompanying notes to unaudited pro forma condensed financial
statements on pages 6 and 7.
(2) See earnings per share calculations on page 8.
</TABLE>
<PAGE> 6
Airgas, Inc.
Notes to Unaudited Pro Forma Condensed Financial Statements
(Dollars in Thousands)
The following adjustments were made to the historical operating results of the
Company in order to reflect unaudited pro forma condensed income statement
information for the year ended March 31, 1996 as if the Company's investment
in NWS had been consummated on April 1, 1995.
The unaudited pro forma financial statements are not necessarily indicative of
the results of operations or financial position of the Company that would have
occurred had the Company's investment in NWS occurred at the beginning of the
period presented or on the date indicated, nor are they necessarily indicative
of future operating results or financial position.
The unaudited pro forma financial statements should be read in conjunction
with the Airgas, Inc. and NWS audited consolidated financial statements,
including the notes thereto.
(a) The pro forma interest expense adjustment of $3,210 reflects interest on
the debt incurred to finance the Company's investment in NWS at an average
annual rate of 6.75%.
(b) Income tax effect of pro forma adjustments at the Company's marginal tax
rate.
(c) The pro forma adjustment to equity in income (loss) of unconsolidated
affiliates has been calculated as follows:
Pro forma net loss available to common
stockholder for the twelve month period
ended March 25, 1996 (see pro forma calculation
on page 7) $ (754)
Less: Adjustment to record the amortization
of the Company's excess of cost over the book
value of NWS on a straight-line basis over 40 years (725)
_______
Pro forma adjustment $ (1,479)
=======
- continued on next page -
<PAGE> 7
<TABLE>
Airgas, Inc.
Notes to Unaudited Pro Forma Condensed Financial Statements
(Dollars in Thousands)
Continued
12 Months Ended March 25, 1996
____________________________________________
National
Welders Supply National
Company, Inc. Welders Supply
(Unaudited) Pro Forma Notes Company, Inc.
(Historical)(5) Adjustments Ref. Pro Forma
______________ ____________ ___ _____________
<C> <C> <C> <C>
Net Sales $116,026 $116,026
Cost of Products Sold
(Excluding Depreciation
and Amortization) 62,485 62,485
Selling, Distribution
& Administrative Expenses 36,388 36,388
Depreciation & Amortization 10,676 10,676
_______ _______
Total Costs & Expenses 109,549 109,549
_______ _______
Operating Income 6,477 6,477
Interest Expense, Net (3,025) $ (102) (1) (3,127)
Other Income, Net 990 (525) (2) 465
_______ ______ ______
Earnings Before Income Taxes 4,442 (627) 3,815
Income Taxes (57) (1,720) (3) 1,663
_______ ______ _______
Net Earnings 4,499 (2,347) 2,152
Less Preferred Stock Dividends - 2,906 (4) 2,906
_______ ______ _______
Net Earnings (loss) Available
to Common Stockholder $ 4,499 $(5,253) $ (754)
======= ====== =======
<FN>
Notes:
(1) Adjustment to reflect interest costs to finance the annual preferred
stock dividend payments.
(2) Adjustment to eliminate non recurring gains on the sale of marketable
securities.
(3) Adjustment to reflect the effective tax rate of NWS as a result of a
change in the tax status from an S Corporation to a C-Corporation. The
nonrecurring impact of establishing deferred taxes as a result of the
termination of the NWS's S-Corporation election has not been reflected in
the NWS pro forma.
(4) Adjustment to reflect NWS 5% preferred stock dividends.
(5) Certain reclassificaitons have been made to NWS's historical consolidated
financial statements to conform to the Company's presentation.
</TABLE>
<PAGE> 8
<TABLE>
AIRGAS, INC.
EARNINGS PER SHARE CALCULATIONS
(DOLLARS IN THOUSANDS, EXCEPT
FOR PER SHARE AMOUNTS)
<CAPTION>
Year Ended Year Ended
Adjustment of Weighted Average March 31, 1996 March 31, 1996
Shares Outstanding Historical Pro Forma (1)
______________________________ ____________ ______________
<S> <C> <C>
Shares of Common Stock
Outstanding - Weighted 62,820 62,820
Add: Incremental shares for
options/warrants (2) 3,395 3,395
Less: Airgas shares held by National
Welders Supply Company (3) -- (912)
_____ _____
Net Common Stock Equivalents 3,395 2,483
______ ______
Adjusted Shares Outstanding 66,215 65,303
====== ======
Net Earnings $39,720 $36,611
====== ======
Earnings Per Share $ .60 $ .56
====== ======
<FN>
(1) The Company has not included a fully diluted earnings per share
calculation since the resulting earnings per share amounts from such
calculation was antidiltive. The fully diluted calculation includes the
conversion of NWS preferred stock into 2.38 million shares of Airgas
common stock and an adjustment to add the preferred dividends of $2.9
million related to the NWS preferred stock.
(2) Incremental shares were calculated using the treasury stock method which
assumes the exercise of all dilutive options and warrants.
(3) Adjustment to reflect Airgas common stock held by NWS.
</TABLE>
<PAGE>
<PAGE>
<PAGE> EX-1
LOAN AGREEMENT
DATED AS OF June 28, 1996
BY AND AMONG
AIRGAS, INC.,
AS THE BORROWER,
AND
NATIONSBANK, N.A.,
AS AGENT<PAGE>
<PAGE> EX-2
Table of Contents
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . 1
1.01 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.02 Incorporated Definitions.. . . . . . . . . . . . . . 5
1.03 Accounting Terms.. . . . . . . . . . . . . . . . . . 5
ARTICLE II REVOLVING LOANS . . . . . . . . . . . . . . . . 6
2.01 Loans. . . . . . . . . . . . . . . . . . . . . . . . 6
2.02 Borrowing Procedures . . . . . . . . . . . . . . . . 6
(a) Minimum Amounts.. . . . . . . . . . . . . . . . 6
(b) Types of Loans. . . . . . . . . . . . . . . . . 6
(c) Notice of Borrowing.. . . . . . . . . . . . . . 6
(d) Limitation on Numbers of Eurodollar Loans.. . . 7
(e) Interest Periods During Syndication . . . . . . 7
2.03 Notes. . . . . . . . . . . . . . . . . . . . . . . . 7
2.04 Interest.. . . . . . . . . . . . . . . . . . . . . . 8
2.05 Commitment Fee; Commitment Reductions. . . . . . . . 8
(a) Commitment Fee. . . . . . . . . . . . . . . . . 8
(b) Commitment Reductions. . . . . . . . . . . 9
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. . . . . . . . . . . . . . . . . . . . 12
3.04 Additional Costs.. . . . . . . . . . . . . . . . . 12
3.05 Change in Circumstances. . . . . . . . . . . . . . 15
3.06 Indemnity. . . . . . . . . . . . . . . . . . . . . 15
3.07 Payments.. . . . . . . . . . . . . . . . . . . . . 15
3.08 Capital Adequacy.. . . . . . . . . . . . . . . . . 16
ARTICLE IV CONDITIONS PRECEDENT AS OF CLOSING DATE . . . 17
4.01 Conditions Precedent to Initial Loans. . . . . . . 17
ARTICLE V CONDITIONS OF LENDING . . . . . . . . . . . . 18
5.01 Conditions of Lending. . . . . . . . . . . . . . . 18
5.02 Commitment Limitation; Reaffirmation.. . . . . . . 18
ARTICLE VI REPRESENTATIONS AND WARRANTIES. . . . . . . . 19
6.01 Representations and Warranties.. . . . . . . . . . 19
(a) Corporate Organization. . . . . . . . . . . . 19
(b) Corporate Power and Authority to Own
Properties, etc.. . . . . . . . . . . . . . . 19
(c) Corporate Power and Authority to Execute,
Deliver and Perform the Loan Documents. . . . 19
(d) Validity of Loan Documents. . . . . . . . . . 19
(e) Execution, Delivery and Performance of Loan
Documents.. . . . . . . . . . . . . . . . . . 19
(f) Subsidiaries. . . . . . . . . . . . . . . . . 20
(g) Interest in Other Persons.. . . . . . . . . . 20
(h) Financial Statements. . . . . . . . . . . . . 20
(i) Governmental Regulations, etc.. . . . . . . . 20
(j) Governmental Consent. . . . . . . . . . . . . 20
6.02 Incorporated Representations and Warranties. . . . 21
<PAGE> EX-3
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . 21
7.01 Covenants. . . . . . . . . . . . . . . . . . . . . 21
(a) Use of Loan Proceeds. . . . . . . . . . . . . 21
(b) Indemnification.. . . . . . . . . . . . . . . 21
(c) Notice of Event of Default. . . . . . . . . . 22
(d) Further Assurances. . . . . . . . . . . . . . 22
7.02 Incorporated Covenants.. . . . . . . . . . . . . . 22
7.03 Incorporation of Subordinated Debt Covenants.. . . 23
ARTICLE VIII EVENTS OF DEFAULT AND ACCELERATION. . . . . . 23
8.01 Events of Default; Acceleration. . . . . . . . . . 23
ARTICLE IX THE AGENT . . . . . . . . . . . . . . . . . . 25
9.01 Appointment and Authorization. . . . . . . . . . . 25
9.02 Use of Agents, etc.. . . . . . . . . . . . . . . . 25
9.03 General Immunity.. . . . . . . . . . . . . . . . . 25
9.04 Reliance, etc. . . . . . . . . . . . . . . . . . . 26
9.05 Event of Default.. . . . . . . . . . . . . . . . . 26
9.06 No Representations.. . . . . . . . . . . . . . . . 26
9.07 Indemnification of Agent.. . . . . . . . . . . . . 27
9.08 Dealings with the Borrower.. . . . . . . . . . . . 27
9.09 Resignation and Removal. . . . . . . . . . . . . . 27
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . 28
10.01 Notices.. . . . . . . . . . . . . . . . . . . 28
10.02 No Waiver; Remedies Cumulative. . . . . . . . 29
10.03 Survival of Certain Provisions, etc.. . . . . 29
10.04 Costs.. . . . . . . . . . . . . . . . . . . . 29
10.05 Amendments, Waivers and Consents. . . . . . . 30
10.06 Computations. . . . . . . . . . . . . . . . . 30
10.07 Right of Set-Off. . . . . . . . . . . . . . . 30
10.08 Interim Interest. . . . . . . . . . . . . . . 31
10.09 Counterparts. . . . . . . . . . . . . . . . . 31
10.10 Assignments, Participations, etc. . . . . . . 31
10.11 Term. . . . . . . . . . . . . . . . . . . . . 32
10.12 Governing Law; Severability; Merger.. . . . . 32
10.13 Priority of Loans.. . . . . . . . . . . . . . 33
10.14 Dealings by Banks with the Borrower.. . . . . 33
10.15 Net Payments. . . . . . . . . . . . . . . . . 33
10.16 Headings. . . . . . . . . . . . . . . . . . . 33
<PAGE>
<PAGE> EX-4
Exhibits
Exhibit A Bank Commitments
Exhibit B Form of Note
Exhibit C Form of Legal Opinion of Counsel to the Borrower
Exhibit D Subsidiaries
Exhibit E Interests in Other Persons
Exhibit F Existing Indebtedness
<PAGE>
<PAGE> EX-5
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of June 28, 1996 (the "Loan
Agreement"), is made by and among AIRGAS, INC., a Delaware
corporation (the "Borrower"), the banks parties hereto
(hereinafter such banks, together with their successors and
assigns, may be referred to individually as a "Bank" and
collectively as the "Banks"), and NATIONSBANK, N.A., as agent for
the Banks (the "Agent").
RECITALS:
A. The Borrower has requested that the Banks provide the
Borrower 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 Borrower and its Subsidiaries.
B. The Banks have agreed to provide the requested credit
facility to the Borrower on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, the Borrower, the Agent and the Banks agree
as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. For the purposes hereof:
"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 and including the Closing
Date through but not including September 30, 1996, 45 basis
points, and (ii) for each day of the Interest Period for such
Eurodollar Loan occurring on and after September 30, 1996, 70
basis points;
"Base Rate" means, for any day, the rate per annum (rounded,
if necessary, to the nearest whole multiple of 1/100 of 1%) equal
to the greater of (a) the Federal Funds Rate in effect on such
day plus 50 basis points or (b) the Prime Rate in effect on such
day. If for any reason the Agent shall have determined (which
determination shall be conclusive absent manifest error) that it
is unable after due inquiry to ascertain the Federal Funds Rate
for any reason, including the inability or failure of the Agent
to obtain sufficient quotations in accordance with the terms
hereof, the Base Rate shall be determined without regard to
clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Rate,
respectively.
<PAGE> EX-6
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"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 Borrower, the Banks and the 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;
"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 Seventh Amended
and Restated Loan Agreement dated as of August 10, 1995, as
amended as of the date hereof, by and among the Borrower, 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 Agent);
"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" has the meaning assigned to
such term in Section 6.02 hereof;
"Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the
rate appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in U.S. dollars at
<PAGE> EX-7
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period. If, for any reason, such rate is not
available, the term "Interbank Offered Rate" shall mean, with
respect to any Eurodollar Loan for the Interest Period applicable
thereto, the rate per annum appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in dollars at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates.
"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 Base Rate 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 Borrower 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, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined by the Agent pursuant to the following formula:
LIBOR Base Rate = Interbank Offered Rate
1 - LIBOR Base Rate Reserve Percentage
"LIBOR Base Rate Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time
to time under Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as such regulation may
be amended from time to time or any successor regulation, as the
maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency, special, or marginal reserves)
applicable with respect to Eurocurrency liabilities as that term
is defined in Regulation D (or against any other category of
<PAGE> EX-8
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or not
any Bank has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time
to time to a Bank. The LIBOR Base Rate shall be adjusted
automatically on and as of the effective date of any change in
the LIBOR Base Rate Reserve Percentage.
"Loan" means a loan made pursuant to Sections 2.01 and 2.02
hereof;
"Loan Documents" means this Loan Agreement and the Notes;
"Majority Banks" means, at any time, (i) the holders of at
least 51% 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 51% 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 Borrower, executed and
delivered as provided in Section 2.03 hereof;
"Prime Rate" means the rate of interest per annum as
announced publicly in Charlotte, North Carolina by NationsBank 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 NationsBank to its customers;
"Subordinated Debt" means (i) the indebtedness of up to
$55,000,000.00 incurred by the Borrower pursuant to the terms of
the Senior Subordinated Note Purchase Agreements, the repayment
of which is subordinated to the repayment of the indebtedness of
the Borrower to the Banks hereunder on terms described in the
Senior Subordinated Note Purchase Agreements, and (ii)
additional subordinated indebtedness incurred by the Borrower
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 the Borrower hereunder) are
consented to by the Majority Banks prior to the time such
indebtedness is incurred.
"Termination Date" means July 1, 1997;
"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.
<PAGE> EX-9
1.02 Incorporated Definitions. 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 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 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 Accounting Terms. 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 Loans. 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
Borrower, 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 Borrower 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 Borrowing Procedures.
(a) Minimum Amounts. 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
<PAGE> EX-10
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 Borrower in accordance with
the terms hereof, any other Bank may, but shall not be
obligated to, make such Loan to the Borrower.
(b) Types of Loans. Each Loan shall be either a
Eurodollar Loan or a Base Rate Loan (or a combination
thereof) as the Borrower 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) Notice of Borrowing. The Borrower 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 Base Rate 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
Base Rate 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 Base Rate 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 Base Rate Loan. The Agent shall promptly on the
same day provide the Banks notice that it has received
notice from the Borrower 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
Borrower 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) Limitation on Numbers of Eurodollar Loans.
Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrower 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
<PAGE> EX-11
commence or expire on the same date, shall be considered
separate Loans. The Borrower may continue any Eurodollar
Loan, or convert all or any part of any Base Rate 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 Notes. The Loans by each Bank shall be evidenced by a
Note duly executed on behalf of the Borrower, dated the date
hereof, in substantially the form of Exhibit B 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 payable
on the first preceding Business Day). All payments under the
Notes shall be made in accordance with Section 3.07 hereof.
2.04 Interest.
(a) Subject to the provisions of Section 3.01 hereof,
each Base Rate 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 Base Rate. Interest
shall be payable on each Base Rate Loan quarterly on each
Interest Payment Date, commencing with the first of such
dates to occur after the date of such Base Rate Loan, and on
the Termination Date or the date of conversion of such Base
Rate 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 Base Rate Loan or the date of
continuation of such Eurodollar Loan for a subsequent
Interest Period. 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 Borrower and the Banks of the LIBOR Base Rate so
determined. Such determination shall be conclusive absent
manifest error.
<PAGE> EX-12
2.05 Commitment Fee; Commitment Reductions.
(a) Commitment Fee. The Borrower agrees to pay in
immediately available funds to the 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
3/16 of 1% 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) Commitment Reductions.
(i) The Borrower 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 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 Agent shall
promptly on the same day provide the Banks notice that
it has received notice from the Borrower 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.
ARTICLE III
ADDITIONAL PROVISIONS REGARDING LOANS
3.01 Additional Interest Rate Provisions.
(a) Default Rate. Upon the occurrence and during the
continuance of any Event of Default, the Borrower 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):
<PAGE> EX-13
(i) in the case of principal of or interest on a
Loan, at a rate determined by the 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 Base Rate.
(b) LIBOR Base Rate Unascertainable. 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 Borrower and to the Agent and each other Bank, and,
until the circumstances giving rise to such notice no longer
exist, any request by the Borrower 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 Base Rate Loan. Each determination by any of
the Banks hereunder shall be conclusive absent manifest
error.
3.02 Conversion and Continuation of Loans. The Borrower
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 11:00 a.m., Charlotte, North Carolina time, in the case of
Base Rate 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 representations and warranties expressly relate to
an earlier date;
<PAGE> EX-14
(b) if less than all Loans at the time outstand-
ing 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 Borrower 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 Base Rate 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 Borrower at the time of conversion or continuation,
as the case may be;
(e) if the new Loan made in respect of a conver-
sion 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
Borrower for a Loan converted to or continued as a
Eurodollar Loan if such Interest Period is not
available to the Borrower 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 Base
Rate 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, regardless of whether they
commence or expire on the same date, shall be considered
separate Loans).
<PAGE> EX-15
In the event that the Borrower shall not give notice to continue
any Eurodollar Loan into a subsequent Interest Period or convert
any such Loan into a Base Rate Loan, such Eurodollar Loan (unless
repaid) shall automatically become a Base Rate Loan at the
expiration of the then current Interest Period therefor.
3.03 Prepayments.
(a) The Borrower shall have the right at any time and
from time to time to prepay any Base Rate 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 Borrower 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
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 or the balance of such Loan,
if less 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 Borrower 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 Additional Costs.
(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 Borrower 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
<PAGE> EX-16
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 Borrower 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 (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 condi-
tion 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 Borrower agrees 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 Borrower may, at its option and upon written notice to
the Banks, elect to convert such Eurodollar Loan of such
Bank into a Base Rate Loan upon the payment by the Borrower
<PAGE> EX-17
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 Base Rate Loan, until
the expiration of the Interest Period of the Eurodollar Loan
so converted into a Base Rate 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
Borrower, such Base Rate 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 Base Rate 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 Borrower 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 Borrower and the
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 Borrower together with
interest thereon at the Federal Funds Rate. The provisions
of this subsection shall survive termination of this Loan
Agreement.
(c) Each Bank shall promptly deliver to the Borrower
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 Borrower shall pay to each
Bank the amounts shown as due on any such certificate within
10 days after its 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 Borrower together with
interest thereon at the Federal Funds Rate.
3.05 Change in Circumstances.
(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
<PAGE> EX-18
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 prior written notice to the
Borrower, such Bank may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder,
whereupon the Borrower 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 Base Rate Loans,
whereupon all of such Eurodollar Loans shall be
automatically converted to Base Rate 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
Borrower 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 Borrower.
3.06 Indemnity. The Borrower 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
Borrower to borrow or convert or continue any Eurodollar Loan.
Each Bank shall promptly deliver to the Borrower from time to
time one or more certificates setting forth the amounts due to
such Bank under this paragraph and the manner of computing such
amounts. 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.
3.07 Payments. All payments and prepayments of principal,
interest and fees (other than the fees payable to 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 Borrower hereunder and under the
Notes shall be made to the Agent at its offices at Charlotte,
North Carolina time, 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
<PAGE> EX-19
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 payment, whether voluntary or involuntary, it
is hereby agreed among the Banks and the Borrower 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 Capital Adequacy. 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 in its sole
reasonable judgment to be material, then from time to time the
Borrower 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 Borrower 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 or
reduction in amounts received or receivable or reduction in
return on capital in such period or in any other period. The
<PAGE> EX-20
protection of this Section 3.08 shall be available to the Bank
regardless of any possible conflict or invalidity or inappli-
cability 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.
ARTICLE IV
CONDITIONS PRECEDENT AS OF CLOSING DATE
4.01 Conditions Precedent to Initial Loans. The obligations
as of the Closing Date of the Banks to make any Loans 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) and the Notes;
(b) resolutions of the directors of the Borrower
certified by an officer of the Borrower as of the Closing
Date, approving and adopting the documents described in
subparagraph (a) above and authorizing the execution,
delivery and performance thereof;
(c) a certificate of the corporate secretary or an
assistant secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized
to sign the documents described in subparagraph (a) above on
behalf of the Borrower and the other documents to be
delivered hereunder;
(d) a certificate of the corporate secretary or an
assistant secretary of the Borrower, certifying that the
charter documents and bylaws of the Borrower 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 10, 1995 and through the Closing Date except as
provided therein;
(e) a copy of the certificate of good standing,
existence or its equivalent with respect to the Borrower
certified as of a recent date by the State of Delaware;
(f) the favorable opinion of McCausland, Keen &
Buckman, counsel to the Borrower, substantially in the form
of Exhibit C hereto; and
(g) a certificate of the corporate secretary or an
assistant secretary of the Borrower, certifying that the
Senior Subordinated Note Purchase Agreements 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
<PAGE> EX-21
August 10, 1995 and through the Closing Date except as
provided therein;
(h) such other information and documents as the Agent
may reasonably request.
ARTICLE V
CONDITIONS OF LENDING
5.01 Conditions of Lending. 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
Borrower 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 Commitment Limitation; Reaffirmation. Each borrowing
hereunder shall be deemed to be a representation and warranty by
the Borrower 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 Representations and Warranties. The Borrower
represents and warrants that:
(a) Corporate Organization. Each of the Borrower and
its Subsidiaries 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 Person;
<PAGE> EX-22
(b) Corporate Power and Authority to Own Properties,
etc. Each of the Borrower and its Subsidiaries 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) Corporate Power and Authority to Execute, Deliver
and Perform the Loan Documents. The Borrower has the power
and authority to execute, deliver and perform the Loan
Documents;
(d) Validity of Loan Documents. When executed and
delivered, the Loan Documents will be legal, valid and
binding obligations of the Borrower and will be enforceable
against the Borrower in accordance with their respective
terms;
(e) Execution, Delivery and Performance of Loan
Documents. The execution, delivery and performance of the
Loan Documents:
(i) have been duly authorized by all
requisite corporate action of the Borrower
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 the Borrower, or
any provisions of any indenture, agreement or
other instrument to which the Borrower 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 the Borrower is a party; and
(iv) do not and will not result in the
creation of any lien on any assets of the
Borrower;
(f) Subsidiaries. All of the direct and indirect
Subsidiaries of the Borrower as of the Closing Date are set
forth in Exhibit D attached hereto;
(g) Interest in Other Persons. Except as set forth in
Exhibit E attached hereto, as of the Closing Date neither
the Borrower nor any of its Subsidiaries owns any interest
in any Person;
(h) Financial Statements. The audited consolidated
balance sheet, income statement and statement of cash flows
of the Borrower and its Subsidiaries prepared as of March
<PAGE> EX-23
31, 1995, copies of each of which have been furnished to
each Bank, fairly present the assets, liabilities and
financial condition of the Borrower 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 the Borrower and its Subsidiaries taken as a
whole;
(i) Governmental Regulations, etc. None of the
Borrower 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 Agent, the 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) Governmental Consent. No consent, approval or
authorization of, or filing, registration or qualification
with, any governmental agency, authority, instrumentality or
regulatory body on the part of the Borrower is required in
conjunction with the execution, delivery or performance by
the Borrower, or for the validity or enforceability, of the
Loan Documents.
6.02 Incorporated Representations and Warranties. The
Borrower hereby agrees that the representations and warranties
contained in Article VIII (other than any of the representations
and warranties set forth in Section 8(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 Borrower 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
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 the "Loan Agreement," or
<PAGE> EX-24
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 Covenants. The Borrower covenants and agrees with the
Banks and the 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 are terminated, unless the Majority Banks
shall otherwise consent in writing, it will and will cause each
of its Subsidiaries to:
(a) Use of Loan Proceeds. Use the proceeds of the
Loans for the purposes set forth in RECITAL A hereof;
(b) Indemnification. 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, 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) Notice of Event of Default. Deliver to the Banks
forthwith, upon any Executive Officer of the Borrower
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
the Borrower specifying the nature and period of existence
thereof and what action the Borrower proposes to take with
respect thereto; and
(d) Further Assurances. 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.
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
<PAGE> EX-25
the contrary set forth in this Loan Agreement or any other of the
Loan Documents.
7.02 Incorporated Covenants. The Borrower hereby agrees
that the affirmative and negative covenants contained in Articles
IX and X 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 Borrower
as if set forth fully herein, except that, for purposes hereof,
Exhibit L to the Existing Loan Agreement referred to in Section
10.01(a)(ii) of the Existing Loan Agreement shall be deemed to
refer to Exhibit F 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 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 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 Incorporation of Subordinated Debt Covenants. The
covenants of the Borrower (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
Borrower as if set forth fully herein.
ARTICLE VIII
EVENTS OF DEFAULT AND ACCELERATION
8.01 Events of Default; Acceleration. If any of the
following events (the "Events of Default") shall occur and be
continuing:
(a) (i) the failure of the Borrower 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
<PAGE> EX-26
such failure for five (5) days; or (ii) the failure of the
Borrower to make when due any payment of principal required
by this Loan Agreement and/or any of the Notes;
(b) the failure of the Borrower 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 Agent specifying the
default and requesting that it be remedied; or (ii) an
Executive Officer of the Borrower becomes aware of such
violation;
(c) any representation or warranty made by the
Borrower 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 Borrower
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 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 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 11.01(d) of the Incorporated Events of
Default), 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 any other Event
<PAGE> EX-27
of Default (other than an event described in Section 11.01(d) of
the Incorporated Events of Default), by written notice to the
Borrower, 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 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
the Borrower, 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 Section 11.01(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 the Borrower, anything contained
herein or in the 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 IX
THE AGENT
9.01 Appointment and Authorization. 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.
9.02 Use of Agents, etc. 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.
9.03 General Immunity. 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
<PAGE> EX-28
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 Borrower 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 the enforceability or sufficiency of any of the Loan
Documents, or for any failure of the Borrower 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 Borrower or any of its
Subsidiaries.
9.04 Reliance, etc. The 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 or
made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other
experts selected by the Agent. The 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 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.
9.05 Event of Default. The 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 Agent has received notice from a Bank or the Borrower
referring to the applicable Loan Document and describing such
Event of Default (or other such event or condition). 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 (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
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 (or
<PAGE> EX-29
other event or condition) as it shall deem advisable in the best
interests of the Banks.
9.06 No Representations. 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 Borrower and its Subsidiaries, 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 the Borrower 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 the
Borrower. 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 Borrower which may come into the
possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.07 Indemnification of Agent. The Banks agree to indemnify
the Agent in its capacity as such (to the extent not reimbursed
by the Borrower, and without limiting the obligation of the
Borrower to do so), ratably according to the respective amounts
outstanding to the Borrower, 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 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 all other amounts payable hereunder.
<PAGE> EX-30
9.08 Dealings with the Borrower. NationsBank and its
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower or any of its
Subsidiaries as though NationsBank were not the Agent hereunder.
With respect to its Loans made or renewed by it and the Note
issued to it, NationsBank 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.
9.09 Resignation and Removal. The Agent may resign at any
time by giving written notice thereof to the Banks and the
Borrower 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 IX 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 X
MISCELLANEOUS
10.01 Notices. 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 Borrower:
Airgas, Inc.
Five Radnor Corporate Center, Suite 550
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Britton H. Murdoch
(Facsimile No.: 610-687-1052)
<PAGE> EX-31
[Courtesy Copy to:
McCausland, Keen & Buckman
Five Radnor Corporate Center, Suite 500
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Melvin J. Buckman, Esq.]
(Facsimile No. 610-341-1099)
(b) if to the Agent:
NationsBank, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
(Facsimile No. 704-386-3271)
(c) if to a Bank, to it at its address (or telecopy
number) set forth on Exhibit A or in the
assignment agreement pursuant to which such Bank
became a party hereto.
10.02 No Waiver; Remedies Cumulative. No failure or
delay on the part of any of the Banks or the 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 Survival of Certain Provisions, etc. 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 the Borrower to the Banks or
any obligations of the Banks under the Commitments remain out-
standing. 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 Borrower which
are contained in the Loan Documents shall inure to the benefit of
the successors and assigns of the Banks.
10.04 Costs. The Borrower agrees 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 Moore & Van Allen, PLLC, 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 liabilities. In addition,
the Borrower agrees 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 Borrower and the Banks (or the
<PAGE> EX-32
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 Amendments, Waivers and Consents. With the
written consent of the Majority Banks, the Agent and the Borrower
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 Borrower hereunder or thereunder, and with the consent
of the Majority Banks the Agent on behalf of the Banks may
execute and deliver to the Borrower 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 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
or transfer by the Borrower of any of its rights and obligations
under this Loan Agreement, or release the Borrower from its
obligations under this Loan Agreement, or amend, modify or waive
any provision of the Loan Documents if such amendment,
modification or waiver would have the effect of releasing the
obligations to the Agent and the Banks of the parties thereof, in
each case without the written consent of all the Banks, or (b)
amend, modify or waive any provision of Article IX 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 Borrower, the
Banks, the 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 Computations. 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 Right of Set-Off. 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
<PAGE> EX-33
Section 8.01 hereof to authorize the Agent to declare the Notes
and all other obligations owing to the Banks 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 the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Loan Agreement, the Notes and the
other Loan Documents and although such obligations may be
unmatured.
10.08 Interim Interest. 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 Counterparts. 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.
10.10 Assignments, Participations, etc.
(a) Any Bank may, at any time upon written notice
thereof to the Agent and the Borrower, 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 the
Borrower and the 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, and 3.08
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
<PAGE> EX-34
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 Borrower, 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 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 the Borrower under the Loan Documents and to
approve any amendment, modification or waiver of any provi-
sion 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 Term. 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 Governing Law; Severability; Merger.
(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. The Borrower 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. The Borrower 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.
(b) In the event any one or more of the provisions
contained in this Loan Agreement should be held invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability 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
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.
<PAGE> EX-35
10.13 Priority of Loans. The payment of the
indebtedness of the Borrower to the Banks hereunder and under the
Notes is senior to the payment of the indebtedness of the
Borrower under the Senior Subordinated Note Purchase Agreements
in accordance with the terms thereof.
10.14 Dealings by Banks with the Borrower. 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 the Borrower or
any of its Subsidiaries.
10.15 Net Payments. The Borrower hereby agrees 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.
10.16 Headings. The headings of the sections and
subsections hereof are provided for convenience only and shall
not in any way affect the meaning or construction of any
provision of this Loan Agreement.
[The remainder of this page has been left blank intentionally.]<PAGE>
<PAGE> EX-36
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
NATIONSBANK, N.A.
By: /s/ M. Gregory Seaton
_________________________________
M. Gregory Seaton
Senior Vice President
NATIONSBANK, N.A., as Agent for the Banks
By: /s/ M. Gregory Seaton
_________________________________
M. Gregory Seaton
Senior Vice President
<PAGE>
<PAGE> EX-37
EXHIBIT A
BANKS' COMMITMENT LEVELS
DOLLAR
AMOUNT
% OF TOTAL OF
NAME AND ADDRESS OF BANK COMMITMENTS COMMITMENT
________________________ _____________ __________
NationsBank, N.A. 100%
NationsBank Corporate Center $100,000,000.00
8th Floor
Charlotte, North Carolina 28255
Attn: M. Gregory Seaton
Facsimile No.: (704) 386-3271
_____ ______________
100% $100,000,000.00
<PAGE>
<PAGE> EX-38
EXHIBIT B
PROMISSORY NOTE
$____________________ June __, 1996
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order
of _____________________, a ________________________, in its
individual capacity (the "Bank"), at the office of NationsBank,
N.A., as Agent (the "Agent"), at NationsBank Corporate Center,
100 North Tryon Street, Charlotte, North Carolina 28255 (or at
such other place or places as the holder hereof may designate),
at the times set forth in the Loan Agreement dated as of June __,
1996 among the Borrower, the Agent, the Bank and certain other
banks (as amended from time to time, the "Loan Agreement"; all
capitalized terms not otherwise defined herein shall have the
meanings set forth in the Loan Agreement), but in no event later
than the Termination Date, in lawful money of the United States
of America, in immediately available funds, the principal amount
of ___________________________________ ($____________) or, if
less than such principal amount, the aggregate unpaid principal
amount of all Loans made by the Bank to the Borrower pursuant to
the Loan Agreement, and to pay interest from the date hereof on
the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with
Article II and Section 3.03(c) of the Loan Agreement.
Upon the occurrence and during the continuance of an Event
of Default the then remaining principal amount and accrued but
unpaid interest shall bear interest at a per annum rate equal to
two percent (2%) plus the rate that would otherwise be payable
under Section 2.04 of the Loan Agreement until such principal and
interest have been paid in full. Further, in the event that
payment of all sums due hereunder is accelerated under the terms
of the Loan Agreement, this Note and all other indebtedness of
the Borrower to the Bank shall become immediately due and
payable, without presentment, demand, protest or notice of any
kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to
the principal and interest, all costs of collection, including
reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the
respective dates thereof may be endorsed by the holder hereof on
Schedule A attached hereto and incorporated herein by reference,
or on a continuation thereof which shall be attached hereto and
made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof
shall not in any manner affect the obligation of the Borrower
hereunder or under the Loan Agreement.
<PAGE> EX-39
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed by its duly authorized officer, all as of the day
and year first above written.
AIRGAS, INC.
By: /s/ Britton H. Murdoch
______________________
Title: Vice President
_____________________
<PAGE>
<PAGE>
<PAGE> EX-40
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in Registration Statements (33-39433, 33-39325, 33-48388, 33-57893,
33-61301, 33-63201, 33-64633, 33-61899) on Form S-3 and (33-25419, 33-21780,
33-33954, 33-64056, 33-64058, 33-64112, 33-64114) on Form S-8 of Airgas, Inc.
of our report dated January 10, 1996 (except for the matters discussed in Note
15, which is dated June 26, 1996), with respect to the consolidated financial
statements of National Welders Supply Company, Inc. and subsidiary for the
years ended September 30, 1995, and September 24, 1994, included in the Form
8-K/A of Airgas, Inc. dated July 10, 1996.
ARTHUR ANDERSEN LLP
Charlotte, North Carolina,
July 10, 1996
<PAGE>
