<PAGE>
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended: June 30, 1997
_____________________________
Commission file number: 1-9344
_____________________________
AIRGAS, INC.
______________________________________________________________________________
(Exact name of Registrant as specified in its charter)
Delaware 56-0732648
_______________________________ __________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
259 Radnor-Chester Road, Suite 100
Radnor, PA 19087-5240
_______________________________________ ________________
(Address of principal executive offices) (ZIP code)
(610) 687-5253
__________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
______ ______
Common Stock outstanding at August 1, 1997: 69,413,994 shares
<PAGE> 2
AIRGAS, INC.
FORM 10-Q
June 30, 1997
INDEX
PART I - FINANCIAL INFORMATION
______________________________
Consolidated Balance Sheets as of June 30, 1997
and March 31, 1997....................................................3
Consolidated Statements of Earnings
for the Three Months Ended June 30, 1997 and 1996.....................5
Consolidated Statements of Cash Flows
for the Three Months Ended June 30, 1997 and 1996.....................6
Notes to Consolidated Financial Statements.................................7
Management's Discussion and Analysis of Financial
Condition and Results of Operations..................................11
PART II - OTHER INFORMATION
___________________________
Exhibits and Reports on Form 8-K..........................................17
Signatures................................................................18
<PAGE> 3
<TABLE>
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements.
AIRGAS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands)
<CAPTION>
June 30, March 31,
1997 1997
(Unaudited)
_____________ ________
<S> <C> <C>
ASSETS
Current Assets
Trade receivables, less allowances for
doubtful accounts of $4,629 at June 30,
1997 and $4,443 at March 31, 1997 $ 164,452 $151,053
Inventories 135,802 129,372
Prepaid expenses and other current assets 30,097 31,574
_________ _________
Total current assets 330,351 311,999
_________ _________
Plant and Equipment, at cost 803,743 736,083
Less accumulated depreciation and amortization (195,191) (183,922)
_________ _________
Plant and equipment, net 608,552 552,161
Other Non-current Assets 148,466 132,257
Goodwill, net of accumulated amortization of
$31,881 at June 30, 1997 and $29,503
at March 31, 1997 326,587 294,614
_________ _________
Total assets $1,413,956 $1,291,031
========= =========
<FN>
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE> 4
<TABLE>
AIRGAS, INC.
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(In thousands, except per share amounts)
<CAPTION>
June 30, March 31,
1997 1997
(Unaudited)
___________ ________
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
____________________________________
Current Liabilities
Current portion of long-term debt $ 20,280 $ 25,158
Accounts payable, trade 65,754 74,329
Accrued expenses and other current liabilities 85,815 87,663
_________ _________
Total current liabilities 171,849 187,150
_________ _________
Long-Term Debt 722,164 629,931
Deferred Income Taxes 116,539 104,266
Other Non-current Liabilities 28,117 29,565
Minority Interest in Subsidiaries 3,770 3,462
Stockholders' Equity
Common stock $.01 par value, 200,000 shares
authorized, 69,438 and 68,762
shares issued at June 30, 1997 and
March 31, 1997, respectively 697 688
Capital in Excess of Par Value 164,108 155,543
Retained earnings 208,851 196,626
Cumulative Translation Adjustment (467) (468)
Treasury Stock, 100 and 800 common shares
at cost at June 30, 1997 and March 31, 1997,
respectively (1,672) (15,732)
_________ _________
Total stockholders' equity 371,517 336,657
_________ _________
Total liabilities and stockholders' equity $1,413,956 $1,291,031
========= =========
<FN>
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE> 5
<TABLE>
AIRGAS, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended Three Months Ended
June 30, 1997 June 30, 1996
__________________ __________________
<S> <C> <C>
Net sales:
Distribution $279,288 $248,129
Direct Industrial 36,845 16,452
Manufacturing 15,279 9,517
_______ _______
Total net sales 331,412 274,098
_______ _______
Costs and expenses:
Cost of products sold
(excluding depreciation,
depletion and amortization)
Distribution 140,020 126,590
Direct Industrial 26,005 13,432
Manufacturing 8,729 6,330
Selling, distribution and
administrative expenses 105,343 86,187
Depreciation and amortization 17,815 14,238
_______ _______
Total costs and expenses 297,912 246,777
_______ _______
Operating income:
Distribution 29,659 24,944
Direct Industrial 1,104 544
Manufacturing 2,737 1,833
_______ _______
33,500 27,321
Interest expense, net (12,108) (8,281)
Other income, net 473 281
Equity in loss of
unconsolidated affiliates (115) -
Minority interest (309) (229)
_______ _______
Earnings before income taxes 21,441 19,092
Income taxes 9,215 7,942
_______ _______
Net earnings $ 12,226 $ 11,150
======= =======
Earnings per share $ .18 $ .17
======= =======
Weighted average shares 69,420 67,095
======= =======
<FN>
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE> 6
AIRGAS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
Three Months Ended Three Months Ended
June 30, 1997 June 30, 1996
__________________ __________________
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 12,226 $ 11,150
Adjustments to reconcile net
earnings to net cash provided
by operating activities:
Depreciation, depletion and amortization 17,815 14,238
Deferred income taxes 2,304 2,382
Equity in earnings of unconsolidated
affiliates (251) (315)
(Gain) loss on sale of plant and equipment (137) 3
Minority interest in earnings 309 229
Stock issued for employee benefit plan expense 1,412 1,146
Changes in assets and liabilities,
excluding effects of business
acquisitions:
Trade receivables, net (5,287) (5,104)
Inventories (3,145) (10,494)
Prepaid expenses and other
current assets 2,736 (3,190)
Accounts payable, trade (12,001) 220
Accrued expenses and other current
liabilities 130 278
Other assets and liabilities, net (1,270) (5,513)
_______ _______
Net cash provided by operating activities 14,841 5,030
_______ _______
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (25,968) (14,814)
Proceeds from sale of plant and
equipment 497 947
Business acquisitions, net of cash acquired (38,229) (76,521)
Business acquisitions, holdback settlements (2,393) (2,356)
Investment in unconsolidated affiliates (7,395) (27,917)
Dividends from unconsolidated affiliates 661 413
Other, net (210) (10)
_______ _______
Net cash used by investing activities (73,037) (120,258)
_______ _______
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from borrowings 117,992 239,589
Repayment of debt (41,101) (123,832)
Repurchase of treasury stock, net (18,363) 0
Exercise of options and warrants 1,461 1,004
Net overdraft (1,793) (1,533)
_______ _______
Net cash provided by financing
activities 58,196 115,228
_______ _______
CHANGE IN CASH $ 0 $ 0
Cash - beginning of period 0 0
_______ _______
Cash - end of period $ 0 $ 0
======= =======
See accompanying notes to consolidated financial statements.
<PAGE> 7
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(1) BASIS OF PRESENTATION
_____________________
The consolidated financial statements include the accounts of Airgas,
Inc. and its subsidiaries (the "Company"). Unconsolidated affiliates are
accounted for on the equity method and generally consist of 20 - 50% owned
operations where control does not exist or is considered temporary. The
excess of the cost of these affiliates is being amortized over 40 years.
Intercompany accounts and transactions are eliminated in consolidation.
The accompanying consolidated financial statements have been prepared in
accordance with generally accepted accounting principles applicable to interim
financial statements. These statements do not include all disclosures
required for annual financial statements. These financial statements should
be read in conjunction with the more complete disclosures contained in the
Company's audited consolidated financial statements for the year ended March
31, 1997.
The financial statements reflect, in the opinion of management, all
adjustments (normal recurring adjustments) necessary to present fairly the
Company's consolidated balance sheets at June 30, 1997 and March 31, 1997;
the consolidated statements of earnings for the three months ended June 30,
1997 and 1996; and the consolidated statements of cash flows for the three
months ended June 30, 1997 and 1996. The interim operating results are not
necessarily indicative of the results to be expected for an entire year.
Certain reclassifications have been made to previously issued financial
statements to conform to the current presentation.
(2) ACQUISITIONS
____________
From April 1, 1997 to June 30, 1997, the Company acquired eight
industrial gas distributors with aggregate annual sales of approximately $23
million, Carbonic Industries Corporation ("CIC") a C02 manufacturing concern
with annual sales in excess of $48 million, and Kendeco Industrial Supply, an
industrial products distributor with annual sales of approximately $15
million. The aggregate purchase price, including amounts related to
non-competition and confidentiality agreements, amounted to approximately $101
million and includes real estate acquired of approximately $6 million.
Included in the aggregate purchase price is the reissuance of approximately
1.8 million treasury shares which were reissued in connection with the
acquisition of CIC. Acquisitions have been recorded using the purchase method
of accounting, and, accordingly, results of their operations have been
included in the Company's consolidated financial statements since the
effective dates of the respective acquisitions.
Subsequent to June 30, 1997, the Company acquired Lyons Safety, Inc., an
industrial products distributor with annual sales of approximately $85
million.
<PAGE> 8
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(3) INVENTORIES
___________
Inventories consist of:
<TABLE>
(In thousands)
<CAPTION>
June 30, March 31,
1997 1997
________ ________
<S> <C> <C>
Finished goods $133,975 $127,765
Raw materials 3,238 2,979
_______ _______
137,213 130,744
Less reduction to LIFO cost ( 1,411) (1,372)
_______ _______
$135,802 $129,372
======= =======
</TABLE>
(4) PLANT AND EQUIPMENT
___________________
The major classes of plant and equipment are as follows:
<TABLE>
(In thousands)
<CAPTION> June 30, March 31,
1997 1997
_____________ _________
<S> <C> <C>
Land and land improvements $ 22,652 $ 21,676
Building and leasehold improvements 73,804 66,659
Cylinders 373,804 365,253
Machinery and equipment, including
bulk tanks 279,613 241,275
Transportation equipment 43,191 39,264
Construction in progress 10,679 1,956
_______ _______
$803,743 $736,083
======= =======
</TABLE>
<PAGE> 9
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(5) OTHER NON-CURRENT ASSETS
_______________________
Other non-current assets include:
<TABLE>
(In thousands)
<CAPTION> June 30, March 31,
1997 1997
_____________ _________
<S> <C> <C>
Investment in unconsolidated
affiliates $ 81,185 $ 64,992
Noncompete agreements and other
intangible assets, at cost, net
of accumulated amortization of
$63.0 million at June 30, 1997
and $59.8 million at March 31, 1997 55,713 54,794
Other assets 11,568 12,471
_______ _______
$148,466 $132,257
======= =======
Investment in unconsolidated affiliates at June 30, 1997 includes the
Company's investment of approximately $47.6 million in cash and notes related
to the June 28, 1996 purchase of 47% of the voting capital stock of National
Welders Supply Company, Inc ("National Welders").
</TABLE>
(6) ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
______________________________________________
Accrued expenses and other current liabilities include:
<TABLE>
(In thousands)
<CAPTION> June 30, March 31,
1997 1997
_____________ _________
<S> <C> <C>
Cash overdraft $ 12,953 $ 14,746
Accrued interest 10,861 5,425
Insurance payable and related
reserves 5,447 5,224
Customer cylinder deposits 8,469 8,185
Other accrued expenses and current
liabilities 48,085 54,083
_______ _______
$ 85,815 $ 87,663
======= =======
The cash overdraft is attributable to the float of the Company's outstanding
checks.
</TABLE>
<PAGE> 10
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(7) EARNINGS PER SHARE
__________________
Earnings per share amounts were determined using the treasury
stock method.
In February 1997, the Financial Accounting Standards Board issued SFAS
No. 128, "Earnings per Share" ("SFAS No. 128"). SFAS No. 128 establishes new
standards for computing and presenting earnings per share, effective for
financial statements issued for periods ending after December 15, 1997,
including interim periods. All prior periods will be restated to reflect the
new Basic and Diluted earnings per share amounts. The Company's Basic
earnings per share is essentially net income divided by the weighted shares
outstanding, and the Diluted earnings per share is not expected to be
materially different than currently reported earnings per share amounts. The
Company will adopt SFAS No. 128 in the fourth quarter of fiscal 1998.
(8) COMMITMENTS AND CONTINGENCIES
_____________________________
On July 26, 1996, Praxair, Inc. ("Praxair") filed suit against the
Company in the Circuit Court of Mobile County, Alabama. The complaint alleges
tortious interference with business or contractual relations with respect to
Praxair's Right of First Refusal contract with the majority shareholders of
National Welders by the Company in connection with the Company's formation of
a joint venture with National Welders. Praxair is seeking compensatory
damages in excess of $100 million and punitive damages. On February 24, 1997,
the court entered an order denying the Company's motion to dismiss for forum
non conveniens. The Company believes that Praxair's claims are without merit
and intends to defend vigorously against such claims.
On September 9, 1996, the Company filed suit against Praxair in the Court
of Common Pleas of Philadelphia County, Pennsylvania. The complaint alleges
breach of contract, fraud, conversion and misappropriation of trade secrets
with respect to an agreement between Praxair and the Company, pursuant to
which Praxair induced the Company to provide Praxair valuable information and
conclusions developed by the Company concerning CBI Industries, Inc. ("CBI")
in exchange for Praxair's promise not to acquire CBI without the Company's
participation. The Company has alleged that it became entitled, pursuant to
such agreement, to acquire certain of CBI's assets having a value in excess of
$800 million. The Company is seeking compensatory and punitive damages. On
January 2, 1997, the court entered an order overruling Praxair's preliminary
objections to the Company's complaint and ordering Praxair to file an answer
to the complaint. Praxair has since filed an answer and asserted various
defenses.
<PAGE> 11
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
On December 23, 1996, the Company reported that it had been a victim of a
fraudulent breach of contract by a supplier. On February 12, 1997, the
Company filed a lawsuit in the United States District Court for the Southern
District of Georgia under the Federal RICO and Georgia RICO statutes against
Discount Auto Parts, Inc. ("Discount"), an employee of Discount, and certain
other businesses and individual defendants, alleging that Discount and the
other defendants engaged in racketeering activity involving the fraudulent
sale of smuggled and counterfeit R-12 refrigerant gas. The Company's
complaint alleged that the racketeering activity of the defendants caused
damages to the Company in an amount not less than $20 million. On July 28,
1997 the Company reported that it had reached a comprehensive settlement with
all of the defendants in the litigation described above. Under the terms of
the settlement, the defendants have agreed to pay the Company approximately
$20 million to compensate it for most of the product losses and costs it
recognized with a pre-tax charge in the fourth quarter of its fiscal year
ended March 31, 1997. The settlement, which requires court approval in
bankruptcy proceedings for two of the defendants, resulted in a suspension of
the trial which was scheduled to begin on August 4, 1997. The Company will
reflect the settlement within its financial statements upon the conclusion of
the bankruptcy court approvals and when the receipt of payment from the
defendants is assured. The Company will continue to pursue insurance claims
for the balance of its product losses and related expenses.
The Company is involved in other various legal proceedings which have
arisen in the ordinary course of its business and have not been finally
adjudicated. These actions, when ultimately concluded and determined, will
not, in the opinion of management, have a material adverse effect upon the
Company's financial condition, results of operations or liquidity.
<PAGE>
<PAGE> 12
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL REVIEW
________________
OVERVIEW
________
The Company's financial results for the first quarter ended June 30,
1997 reflect substantial growth compared with the first quarter last year.
Net sales increased 21% to $331.4 million from $274.1 million in the first
quarter last year. Net earnings for the first quarter of fiscal 1998
increased by 10% to $12.2 million, or $.18 per share, compared to $11.2
million, or $.17 per share for the same quarter last year. After tax cash
flow (net earnings plus depreciation, depletion, amortization and deferred
taxes) increased by 16% to $32.3 million, or $.47 per share, compared to $27.8
million, or $.41 per share for the same quarter last year.
These increases were attributable to continued success of the Company's
acquisition growth strategies combined with internal sales growth and
continuous improvement in other areas, including higher hardgoods vendor
rebates and lower business insurance costs. Offsetting this solid growth were
costs associated with new branch start-ups in Eastern Canada, planned expenses
related to the expansion of Airgas Direct Industrial ("ADI"), interest costs
from debt incurred related to the refrigerant fraud, and interest costs and
equity loss associated with the Company's investment in National Welders
Supply ("National Welders"). Since April 1, 1997, the Company has completed
eleven acquisitions with aggregate annual sales of approximately $170 million.
Growth in the Company's industrial gas distribution business during the
first quarter of 1998 was helped by the acquisition of eight businesses with
aggregate annual sales of approximately $23 million. Internal growth and
expansion of existing product lines resulted in same-store sales growth of
3.5% and realized same-store gross profit growth of 5.4% compared to the first
quarter last year.
In fiscal 1997, the Company entered a new business segment and formed
its ADI Group with the acquisitions of IPCO Safety Products ("IPCO") and
Rutland Tool & Supply Co., Inc. ("Rutland"). ADI offers a multi-channel,
direct mail, national distribution infrastructure which broadens the line of
hardgoods and positions the Company for entry into the $55 billion safety and
metalworking industrial segment of the Maintenance, Repair and Operations
("MRO") market. Since April 1, 1997, ADI has acquired two key industrial
products distributors: (1) Kendeco Industrial Supply, an "engineered-systems
integrator" for the cutting tools and abrasives market with annual sales of
approximately $15 million, and (2) Lyons Safety, Inc., a national marketer of
safety and personal protection systems with annual sales of approximately $85
million. These two acquisitions strengthen ADI's position both through the
expansion of two key product lines (safety products and metalworking tools) in
the largest geographical market for industrial supplies, and through
additional marketing and service capabilities to large customers. In
addition, internal sales growth by ADI realized same-store sales growth of
approximately 12.5% compared to the first quarter last year.
During fiscal 1997, the Company also announced a strategy to expand its
distribution of carbon dioxide. In June 1997, the Company completed the
Carbonic Industries Corporation (CIC) acquisition, the fourth largest producer
of carbon dioxide in the United States with annual sales in excess of $48
million. Also during the first quarter of fiscal 1998, the Company acquired
American Dry Ice, an $11 million distributor of small bulk CO2, dry ice and
<PAGE> 13
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
related products, and announced its intent to acquire Carbonic Reserves, a $14
million manufacturer and distributor of dry ice products. With these
acquisitions, the Company's combined annual sales of carbon dioxide and dry
ice products are expected to total in excess of $100 million. CIC, combined
with the acquisition of the Jackson Dome properties in fiscal 1997 and related
acquisitions of liquid carbon dioxide distributors and carbon dioxide beverage
companies, enhances the Company's ability to supply carbon dioxide and dry ice
products through its distribution network.
The fraudulent breach of contract by a third-party supplier of
refrigerant gas was reported by the Company on December 23, 1996. On February
12, 1997, the Company disclosed it had filed a lawsuit in the United Stated
District Court under the Federal RICO and Georgia RICO statutes against
Discount Auto Parts, Inc. ("Discount"), an employee of Discount, and certain
other businesses and individual defendants engaged in racketeering activity
involving the fraudulent sale of smuggled and counterfeit R-12 refrigerant
gas. The Company's complaint alleged that the racketeering activity of the
defendants caused damages to the Company in an amount not less than $20
million. On July 28, 1997 the Company reported that it had reached a
comprehensive settlement with all of the defendants in the litigation
described above. Under the terms of the settlement, the defendants have
agreed to pay the Company approximately $20 million to compensate it for most
of the product losses and costs it recognized with a pre-tax charge in the
fourth quarter of its fiscal year ended March 31, 1997. The settlement, which
requires court approval in bankruptcy proceedings for two of the defendants,
resulted in a suspension of the trial which was scheduled to begin on August
4, 1997. The Company will reflect the settlement within its financial
statements upon the conclusion of the bankruptcy court approvals and when the
receipt of payment from the defendants is assured. The Company will continue
to pursue insurance claims for the balance of its product losses and related
expenses.
<PAGE> 14
RESULTS OF OPERATIONS: THREE MONTHS ENDED JUNE 30, 1997 COMPARED TO THE THREE
MONTHS ENDED JUNE 30, 1996
__________________________
Net sales increased 21% during the quarter ended June 30, 1997 compared
to the same quarter in the prior year:
<TABLE>
(in thousands)
<CAPTION> 1996 1995 Increase
____ ____ __________
<S> <C> <C> <C>
Distribution $279,288 $248,129 $ 31,159
Direct Industrial 36,845 16,452 20,393
Manufacturing 15,279 9,517 5,762
_______ _______ _______
$331,412 $274,098 $ 57,314
======= ======= =======
</TABLE>
For the quarter ended June 30, 1997, Distribution sales increased
approximately $22 million resulting from the acquisition of 27 distributors
since April 1, 1996 and approximately $9 million from same-store sales.
The increase in same-store Distribution sales of 3.5% was a result of growth
in all three product groups: gases, hardgoods and rent. The internal growth
was attributable to higher sales volume and from improved pricing. The Company
continues to focus on internal sales growth through the development of new gas
products and product-line extensions, including specialty gases, small bulk
gases, carbon dioxide, replacement refrigerants in returnable containers,
expansion of rental welder fleets and increased hardgoods business through
ADI. The Company believes its same-store sales growth is slightly understated
since it does not reflect the Company's decision to cease unprofitable sales
to certain customers and other sales lost during acquisition consolidation and
integration activity. Airgas subsidiaries without significant acquisition
activity averaged approximately 5% same-store sales growth. The Company
estimates same-store sales based on a comparison of current period sales to
the prior period's sales, adjusted for acquisitions. Future same-store sales
growth is dependent on the economy and the Company's ability to expand markets
for new and existing products and to increase prices.
ADI's sales include welding, metalworking, safety and other MRO
hardgoods. The internal sales growth rate for ADI was approximately 12.5%
during the first quarter of 1998, with IPCO posting a growth rate of
approximately 15% and Rutland approximately 10%. Sales to the Distribution
segment totaled approximately $856 thousand.
The Manufacturing segment's sales increased 61% during the first quarter
of 1998 primarily as a result of the acquisition of CIC and the Jackson Dome
carbon dioxide businesses. Strong sales of calcium carbide were offset
slightly by lower demand for nitrous oxide and lower shipments of certain
carbon products to one customer. Excluding acquisitions, sales increased 1%
during the quarter. Sales to the Distribution segment totaled approximately
$385 thousand.
<PAGE> 15
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The increase in Distribution gross profit of approximately $17.7 million
over the same quarter in the prior year resulted from acquisitions which
contributed approximately $10.6 million and from same-store gross profit
growth of 5.4% or approximately $7.1 million. Same-store gross profit growth
resulted from margin improvement of $2.7 million and sales volume growth of
$4.4 million. On a same-store basis, the Distribution gross margin was 49.9%
which represented an improvement of 90 basis points compared to the same
period in the prior year. Same-store gross margins improved as a result of a
shift in sales mix towards higher margin gases as a result of favorable gas
pricing and gas programs such as small bulk and specialty gases. In addition,
higher sales volumes and margins on hardgoods combined with higher hardgoods
rebates contributed to the favorable increase in gross profits. A sales
contest combined with lower margin refrigerant sales held margins down during
the prior period quarter. Finally, bulk tank rent related to small bulk
installations, and an increased base of rental welding equipment and the
return of third party rented cylinders also generated improvements in same-
store gross margins.
For the quarter, ADI's gross margin of 29.4% compared favorably to the
prior year since the prior year quarter did not reflect Rutland, which was
acquired September 1, 1996, and has a historical gross margin of approximately
40%. Favorable margins at IPCO were offset by Rutland which experienced a
shift in sales more towards lower margin machinery items and increased
wholesale business.
For the quarter, the Manufacturing gross margin of 42.9% compared
favorably to the same quarter last year, increasing approximately 9.4%. The
acquisitions of CIC and the Jackson Dome and the shift in the sales mix have
contributed to the favorable margin variance.
Selling, distribution, and administrative expenses ("SG&A") increased
$19.2 million compared to the same quarter last year primarily due to
acquisitions. SG&A expenses as a percentage of sales increased 40 basis
points to 31.8% compared to the same period in the prior quarter. The
increase in SG&A expenses relative to sales resulted from higher operating
costs associated with the start-up of new Distribution branches in Eastern
Canada, planned expenses related to the expansion of ADI, costs associated
with integration and consolidation of certain Distribution acquisitions, legal
expenses related to successfully defending a lawsuit and increases in
salaries, wages and benefits. As the Company continues to integrate such
acquisitions and complete such start-up and expansion activities, SG&A
expenses relative to net sales should improve, although such increased
activities could recur as a result of future acquisitions and expansion
activities.
Depreciation, depletion and amortization increased $3.6 million compared
to the same period in the prior quarter due to acquisitions and from increased
capital expenditures. Of the $11.2 million increase in capital expenditures,
$7.3 million of the increase related to expenditures for the consolidation of
two air separation plants. The balance of the increase primarily resulted
from purchases of cylinders, bulk tanks and machinery and equipment necessary
to facilitate gas sales growth and the integration of acquisitions.
<PAGE> 16
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Operating income increased 23% in 1997 compared to 1996:
<TABLE>
(in thousands)
<CAPTION>
1997 1996 Increase
____ ____ __________
<S> <C> <C> <C>
Distribution $29,659 $24,944 $ 4,715
Direct Industrial 1,104 544 560
Manufacturing 2,737 1,833 904
______ ______ ______
$33,500 $27,321 $ 6,179
====== ====== ======
</TABLE>
The Distribution segment's operating margin increased 50 basis points to
10.6% compared with the same quarter last year. The increase resulted
primarily from higher same-store gross profits. Operating margin expansion
was partially offset by acquisitions which have operating margins averaging
around 8% and from higher operating costs associated with the integration and
consolidation of acquisitions and new branch start-ups in Eastern Canada.
Subject to the effects of future acquisitions and the Company's ability to
increase sales and expand margins, the Company believes that its operating
margin performance will continue to improve as it implements selective price
increases, reduces costs by leveraging its national purchasing power and
continues to integrate acquisitions.
The operating income margin for ADI decreased 30 basis points to 3%
compared with the same quarter last year. The Company believes that ADI's
operating income margin will continue to be impacted by expansion costs
related to information systems, logistics and facility enhancements. ADI is
establishing a new distribution center in Southern California which will
consolidate four other ADI warehouses.
The Manufacturing segment's operating income increased $900 thousand
compared to the same quarter last year primarily as a result of the CIC and
Jackson Dome acquisitions.
<PAGE> 17
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Interest expense, net, increased $3.8 million compared to the same
quarter last year primarily as a result of the increase in average outstanding
debt associated with the acquisition of businesses acquired since April 1,
1996, the joint venture investment in National Welders, interest costs on debt
associated with the refrigerant fraud, and the repurchase of the Company's
common stock. As discussed in "Liquidity and Capital Resources" below, the
Company has hedged floating interest rates under certain borrowings with
interest rate swap agreements.
Income tax expense represented 43.0% of pre-tax earnings in 1997 compared
to 41.6% in 1996. The increase in the effective income tax rate was primarily
a result of non-deductible goodwill from recent acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
_______________________________
The Company has primarily financed its operations, capital expenditures,
stock repurchases, and acquisitions with borrowings and funds provided by
operating activities.
Cash flows from operating activities totaled $14.8 million for the three
months ended June 30, 1997. Depreciation, depletion and amortization
represent $17.8 million of cash flow from operating activities. Cash flows
from working capital components decreased $17.6 million primarily as a result
of a decrease in accounts payable due to the timing of invoice payments and an
increase in accounts receivable associated with higher same store-sales and an
increase in inventory levels to meet increased sales volumes. Days' sales
outstanding and distribution hardgoods days' supply of inventory levels are
comparable to March 31, 1997 levels.
Cash used by investing activities totaled $73.0 million which was
primarily comprised of $26.0 million for capital expenditures and $38.2
million related to acquisitions.
The Company's use of cash for capital expenditures was attributable to
the consolidation of two air separation plants and the continued assimilation
of acquisitions which require expenditures for combining cylinder fill plants,
improving truck fleets and purchasing cylinders in order to return cylinders
rented from third parties. The Company has entered into long-term supply
contracts with two customers which require the construction of two air
separation plants which are scheduled to begin production late in calendar
1997. During the first quarter of fiscal 1998, the Company incurred capital
expenditures of approximately $7.3 million for air separation plant
construction. These two plants will also produce liquid oxygen and argon
which will be sold to the Company's Distribution customers. Additionally,
capital expenditures include the purchase of cylinders and bulk tanks
necessary to facilitate gas sales growth. Approximately 28% of first quarter
capital expenditures were for the purchase of cylinders, bulk tanks and
machinery and equipment and 65% were related to the consolidation of air
separation plants. The Company estimates that its maintenance capital
expenditures are approximately 2% of net sales. The Company considers the
replacement of existing capital assets to be maintenance capital expenditures.
<PAGE> 18
Item 2. AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Financing activities provided cash of $58.2 million with total debt
outstanding increasing by $87.4 million from March 31, 1997. Funds from
financing activities were used primarily for the purchase of distributor
acquisitions, capital expenditures and the repurchase of Airgas common stock.
The Company's primary source of borrowing is a $500 million unsecured
revolving credit facility with various commercial banks which matures on
September 30, 2001. At June 30, 1997, the Company had approximately $366
million in borrowings under the facility and approximately $72 million
committed under letters of credit, resulting in unused availability under the
facility of approximately $62 million.
On June 30, 1997, the Company entered into an additional $125 million
unsecured revolving credit facility with a commercial bank which matures on
November 1, 1998. The terms and conditions of this facility are also similar
to the Company's existing $500 million facility. At June 30, 1997, the
Company had no borrowings outstanding under the facility. The Company intends
to terminate its $125 million facility in conjunction with an anticipated
increase in the Company's $500 million revolving credit facility in September
1997, which will have terms and conditions similar to its existing $500
million facility.
In fiscal 1997, the Company commenced a medium-term note program which
provides for the issuance of its securities with an aggregate public offering
price of up to $450 million. During fiscal 1997, the Company issued the
following long-term debt under the medium-term note program: $100 million of
unsecured notes due September 2006 bearing interest at a fixed rate of 7.75%;
$50 million of unsecured notes due September 2001 bearing interest at a fixed
rate of 7.15%; and $75 million of unsecured notes due March 2004 at a fixed
rate of 7.14%. The proceeds from the medium-term note issuances were used to
repay bank debt.
The Company has a Canadian credit facility totalling C$50 million (US$36
million) with various commercial banks which matures on November 14, 1998. At
June 30, 1997, the Company had approximately C$46 million (US$33 million) in
borrowings outstanding under the facility, resulting in unused availability
under the facility of approximately C$4 million (US$3 million). Subsequent to
June 30, 1997, the Company entered into an additional C$15 million (US$11
million) unsecured revolving credit facility with a commercial bank which
matures on January 8, 1999.
The Company also has unsecured line of credit agreements with various
commercial banks. At June 30, 1997, these agreements totaled $50 million,
under which the Company had no borrowings outstanding.
At June 30, 1997, the effective interest rate related to outstanding
borrowings under all credit lines was approximately 6.07%. The Company's loan
agreements contain covenants which include the maintenance of a minimum equity
level, maintenance of certain financial ratios, restrictions on additional
borrowings and limitations on dividends.
In managing interest rate exposure, principally under the Company's
floating rate revolving credit facilities, the Company has entered into
23 interest rate swap agreements during the period from June 1992
through June 30, 1997. The swap agreements are with major financial
institutions and aggregate $403 million in notional principal amount at
June 30, 1997. Approximately $253 million of the notional principal
amount of the swap agreements require fixed interest payments based on an
<PAGE> 19
Item 2. AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
average effective rate of 6.64% for remaining periods ranging between 1 and 8
years. Five swap agreements require floating rates ($149.5 million notional
amount at 5.72% at June 30, 1997). Under the terms of seven of the swap
agreements, the Company has elected to receive the discounted value of the
counterparty's interest payments upfront. At June 30, 1997, approximately
$17.7 million of such payments were included in other liabilities. The
Company continually monitors its positions and the credit ratings of its
counterparties, and does not anticipate nonperformance by the counterparties.
The Company will continue to look for appropriate acquisitions and
expects to fund such acquisitions, future capital expenditure requirements and
commitments related to foreign investments primarily through the use of cash
flow from operations, debt, common stock for certain acquisition candidates
and other available sources. Subsequent to June 30, 1997, the Company
acquired Lyons Safety, Inc., an industrial safety products distributor with
annual sales of approximately $85 million.
In December 1996, the Board of Directors authorized the repurchase of up
to 1,600,000 shares of Airgas Common Stock, and on April 16, 1997, the Board
of Directors authorized the repurchase of up to 1,000,000 additional shares.
The Company purchased 800,000 shares of Airgas common stock during the year
ended March 31, 1997. During the first quarter ended June 30, 1997, the
Company repurchased 1,154,000 shares, leaving a total of 646,000 shares
available under the repurchase programs. Approximately 1.8 million shares
were issued in connection with the acquisition of CIC. The Company's treasury
shares will be used to fund acquisitions and employee benefit programs and
will be acquired in open-market transactions, from time-to-time, depending on
market conditions.
The Company does not currently pay dividends.
OTHER
_____
New Accounting Pronouncements
In the first quarter of fiscal 1998, the Company adopted SFAS No.
125, "Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities". This statement provides accounting and
reporting standards for transfers and servicing of financial assets and
extinguishments of liabilities based on consistent application of a financial-
components approach that focuses on control. It distinguishes transfers of
financial assets that are sales from transfers that are secured borrowings.
Under the financial-components approach, after a transfer of financial assets,
an entity recognizes all financial and servicing assets it controls and
liabilities it has incurred and derecognizes financial assets it no longer
controls and liabilities that have been extinguished. The
financial-components approach focuses on the assets and liabilities that exist
after the transfer. If a transfer does not meet the criteria for a sale, the
transfer is accounted for as a secured borrowing with pledge of collateral.
This statement is effective for transfer and servicing of financial assets and
extinguishments of liabilities for fiscal years beginning after December 15,
1996 and is to be applied prospectively. The adoption of this statement did
not have a material impact on earnings, financial condition or liquidity of
the Company.
<PAGE> 20
Item 2. AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
In the first quarter of fiscal 1998, the Company adopted Statement of
Position 96-1 (SOP), which prescribes generally accepted accounting principles
for environmental remediation liabilities. This SOP more specifically
identifies future, long-term monitoring and administration expenditures as
remediation liabilities that need to be accrued on the balance sheet as an
existing obligation. This SOP is effective for fiscal years beginning after
December 15, 1996. The adoption of this statement did not have a material
impact on earnings, financial condition or liquidity of the Company.
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement No. 128 "Earnings Per Share" (SFAS No. 128). SFAS No. 128
establishes new standards for computing and presenting earnings per share,
effective for financial statements issued for periods ending after December
15, 1997, including interim periods. All prior periods will be restated to
reflect the new Basic and Diluted earnings per share amounts. The Company's
Basic earnings per share is essentially net income divided by the weighted
shares outstanding, and the Diluted earnings per share is not expected to be
materially different than currently reported earnings per share amounts. The
Company will adopt SFAS No. 128 in the fourth quarter of fiscal 1998.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income." This statement requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence
as other financial statements. The Company plans to adopt this accounting
standard in the first quarter of fiscal 1999, as required. The adoption of
this standard will not impact earnings, financial condition, or liquidity, but
will require the Company to classify items of other comprehensive income in a
financial statement and display the accumulated balance of other comprehensive
income separately in the equity section of the balance sheet.
In June, 1997, the FASB issued SFAS No. 131, "Disclosures about Segments
of an Enterprise and Related Information." This statement establishes
standards for reporting information about operating segments in annual
financial statements and requires selected information about operating
segments in interim financial reports issued to shareholders. It also
establishes standards for related disclosures about products and services,
geographic areas and major customers. The Company will adopt this accounting
standard in the first quarter of fiscal 1999, as required. The adoption of
this standard will not impact earnings, financial condition or liquidity of
the Company.
Forward-looking Statements
This report contains forward-looking statements. In connection with the
"safe harbor" provisions of the Private Securities Litigation Reform Act of
1995, there are certain important factors that could cause the Company's
actual results to differ materially from those included in such forward-
looking statements. Some of the important factors which could cause actual
results to differ materially from those projected include, but are not limited
to: the Company's ability to continue to identify, complete and integrate
strategic acquisitions to enter new markets and expand existing business;
continued availability of financing to provide additional sources of funding
for future acquisitions; capital expenditure requirements and foreign
investments; the effects of competition from independent distributors and
vertically integrated gas producers on products and pricing, and growth and
acceptance of new product lines through the Company's sales and marketing
programs; changes in product prices from gas producers and name-brand
<PAGE> 21
manufacturers and suppliers of hardgoods; uncertainties regarding accidents or
litigation which may arise in the ordinary course of business; the Company's
expectations regarding court approval in the bankruptcy proceedings for two of
the defendants in connection with the fraudulent breach of contract related to
refrigerant R-12 purchases; and the effects of, and changes in the economy,
monetary and fiscal policies, laws and regulations, inflation and monetary
fluctuations and fluctuations in interest rates, both on a national and
international basis.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
On July 26, 1996, Praxair, Inc. ("Praxair") filed suit against the
Company in the Circuit Court of Mobile County, Alabama. The complaint alleges
tortious interference with business or contractual relations with respect to
Praxair's Right of First Refusal contract with the majority shareholders of
National Welders by the Company in connection with the Company's formation of
a joint venture with National Welders. Praxair is seeking compensatory
damages in excess of $100 million and punitive damages. On February 24, 1997,
the court entered an order denying the Company's motion to dismiss for forum
non conveniens. The Company believes that Praxair's claims are without merit
and intends to defend vigorously against such claims.
On September 9, 1996, the Company filed suit against Praxair in the Court
of Common Pleas of Philadelphia County, Pennsylvania. The complaint alleges
breach of contract, fraud, conversion and misappropriation of trade secrets
with respect to an agreement between Praxair and the Company, pursuant to
which Praxair induced the Company to provide Praxair valuable information and
conclusions developed by the Company concerning CBI Industries, Inc. ("CBI")
in exchange for Praxair's promise not to acquire CBI without the Company's
participation. The Company has alleged that it became entitled, pursuant to
such agreement, to acquire certain of CBI's assets having a value in excess of
$800 million. The Company is seeking compensatory and punitive damages. On
January 2, 1997, the court entered an order overruling Praxair's preliminary
objections to the Company's complaint and ordering Praxair to file an answer
to the complaint. Praxair has since filed an answer and asserted various
defenses.
The fraudulent breach of contract by a third-party supplier of
refrigerant gas was reported by the Company on December 23, 1996. On February
12, 1997, the Company filed a lawsuit in the United States District Court for
the Southern District of Georgia under the Federal RICO and Georgia RICO
statutes against Discount Auto Parts, Inc. ("Discount"), an employee of
Discount and certain other business and individual defendants, alleging that
Discount and the other defendants engaged in racketeering activity involving
the fraudulent sale of smuggled and counterfeit R-12 refrigerant gas. The
Company's complaint alleged that the racketeering activity of the defendants
caused damages to the Company in an amount not less than $20 million. On July
28, l997 the Company reported that it had reached a comprehensive settlement
with all of the defendants in the litigation described above. Under the terms
of the settlement, the defendants have agreed to pay the Company approximately
$20 million to compensate it for most of the product losses and costs it
recognized with a pre-tax charge in the fourth quarter of its fiscal year
ended March 31, 1997. The settlement, which requires court approval in
bankruptcy proceedings for two of the defendants, resulted in a suspension of
the trial which was scheduled to begin on August 4, 1997. The Company will
reflect the settlement within its financial statements upon the conclusion of
the bankruptcy court approvals and when the receipt of payment from the
defendants is assured. The Company will continue to pursue insurance claims
for the balance of its product losses and related expenses.
<PAGE> 22
PART II - OTHER INFORMATION - CONTINUED
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
________
4.1 Credit Agreement dated June 30, 1997 between Airgas, Inc. and
certain banks and Nationsbank N.A. ($125,000,000 credit facility).
11. Calculation of earnings per share.
b. Reports on Form 8-K
___________________
On April 17, 1997, the Company filed a current report on Form 8-K to
announce, under Item 5, special charges and its earnings outlook for the
fourth quarter of its fiscal year ended March 31, 1997.
On April 21, 1997, the Company filed a current report on Form 8-K, to
announce, under Item 5, that its Board of Directors authorized the repurchase
of up to one million shares of Airgas, Inc. common stock.
On April 29, 1997, the Company filed a current report on Form 8-K, which
reported, under Item 5, that the Company's Board of Directors adopted a
stockholder rights plan on April 16, 1997, which contemplates the issuance of
preferred stock purchase rights to the Company's common stockholders of record
as of April 29, 1997.
<PAGE>
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
August 12, 1997 /s/ Thomas C. Deas, Jr.
_______________ _______________________
Date Thomas C. Deas, Jr.
Vice President and
Chief Financial Officer
<PAGE>
<PAGE>
<PAGE> EX-1
[Execution Copy]
CREDIT AGREEMENT
DATED AS OF JUNE 30, 1997
BY AND AMONG
AIRGAS, INC.,
AS THE BORROWER,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
AS AGENT
<PAGE>
<PAGE> EX-2
Table of Contents
Page
SECTION 1 DEFINITIONS 1
1.1 Definitions. 1
1.2 Incorporated Definitions. 5
1.3 Accounting Terms. 6
SECTION 2 LOANS
2.1 Loans. 6
2.2 Borrowing Procedures. 6
(a) Minimum Amounts. 6
(b) Types of Loans. 6
(c) Notice of Borrowing. 7
(d) Limitation on Numbers of Eurodollar Loans. 7
2.3 Notes. 8
2.4 Interest. 8
SECTION 3 ADDITIONAL PROVISIONS REGARDING LOANS 9
3.1 Default Rate. 9
3.2 Extension and Conversion. 9
3.3 Prepayments. 10
3.4 Termination and Reduction of Commitments. 10
3.5 Fees. 10
3.6 Capital Adequacy. 11
3.7 Inability To Determine Interest Rate. 11
3.8 Illegality. 11
3.9 Requirements of Law. 12
3.10 Taxes. 13
3.11 Indemnity. 15
3.12 Pro Rata Treatment. 15
3.13 Sharing of Payments. 16
3.14 Payments, Computations, Etc. 16
SECTION 4 CONDITIONS PRECEDENT AS OF CLOSING DATE 18
4.1 Closing Conditions. 18
SECTION 5 CONDITIONS OF LENDING 19
5.1 Conditions of Lending. 19
5.2 Commitment Limitation; Reaffirmation. 19
SECTION 6 REPRESENTATIONS AND WARRANTIES 19
6.1 Financial Condition. 19
6.2 No Change. 20
6.3 Organization; Existence; Compliance with Law. 20
6.4 Power; Authorization; Enforceable Obligations. 21
6.5 No Legal Bar. 21
6.6 Governmental Regulations, Etc. 21
6.7 Subsidiaries. 22
6.8 Purpose of Loans. 22
6.9 Incorporated Representations and Warranties. 23
SECTION 7 COVENANTS 23
7.1 Information Covenants. 23
7.2 Use of Proceeds. 23
7.3 Incorporated Covenants. 23
SECTION 8 EVENTS OF DEFAULT AND ACCELERATION 24
8.1 Events of Default; Acceleration. 24
8.2 Acceleration; Remedies. 26
<PAGE> EX-3
SECTION 9 THE AGENT 27
9.1 Appointment. 27
9.2 Delegation of Duties. 27
9.3 Exculpatory Provisions. 28
9.4 Reliance on Communications. 28
9.5 Notice of Default. 29
9.6 Non-Reliance on Agent and Other Lenders. 29
9.7 Indemnification. 29
9.8 Agent in its Individual Capacity. 30
9.9 Successor Agent. 30
SECTION 10 MISCELLANEOUS 31
10.1 Notices. 31
10.2 Right of Set-Off. 32
10.3 Benefit of Agreement. 32
10.4 No Waiver; Remedies Cumulative. 34
10.5 Payment of Expenses, Etc. 34
10.6 Amendments, Waivers and Consents. 35
10.7 Counterparts. 36
10.8 Headings. 36
10.9 Survival. 36
10.10 Governing Law; Submission to Jurisdiction; Venue. 36
10.11 Severability. 37
10.12 Entirety.
10.13 Binding Effect; Termination of Existing Credit Agreement;
Termination of This Credit Agreement. 37
10.14 Confidentiality. 38
10.15 Conflict. 38
10.16 Obligations Senior to Subordinated Debt. 38
SCHEDULES
Schedule 1.1A Lender Commitments
Schedule 2.3 Form of Note
Schedule 4.1(d) Form of Opinion of McCausland, Keen & Buckman
Schedule 6.7 Subsidiaries
Schedule 10.3(b) Form of Assignment and Acceptance
<PAGE>
<PAGE> EX-4
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 30, 1997 (the "Credit
Agreement"), is made by and among
AIRGAS, INC., a Delaware corporation (the "Borrower"); and
NATIONSBANK, N.A. ("NationsBank"- hereinafter, NationsBank in its
individual capacity together with its successors and assigns, may be referred
individually as a "Lender " and collectively as the "Lender s"); and
NATIONSBANK, N.A., as agent for the Lenders (the "Agent").
RECITALS:
A. The Borrower has requested that the Lenders provide the Borrower
with a $125,000,000 credit facility.
B. The Lenders 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 Lenders agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
For the purposes hereof:
"Applicable Lending Office" means, for each Lender, the office of such
Lender (or of an Affiliate of such Lender) as such Lender may from time to
time specify to the Agent and the Borrower by written notice as the office by
which its Eurodollar Loans are made and maintained.
"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 and including October 30,
1997, 45 basis points, and (ii) for each day of the Interest Period for such
Eurodollar Loan occurring on and after November 1, 1997, 70 basis points.
"Base Rate" means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
(b) the Prime Rate for such day. 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 Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate determined by
reference to the Base Rate.
"Borrower's Obligations" means, without duplication, all of the
obligations of the Borrower to the Lenders and the Agent, whenever arising,
under this Credit Agreement, the Notes or any of the other Credit Documents.
<PAGE> EX-5
"Business Day" means any day not a Saturday, Sunday or legal holiday on
which each of the Lenders 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 hereof.
"Commitment", for each Lender, means the commitment of such Lender to
make Loans in a maximum principal amount equal to the amount set forth beside
the name of such Lender on Schedule 1.1A hereto, as the same may be reduced
from time to time in accordance with the terms of Section 3.4 hereof.
"Commitment Fee" has the meaning assigned to such term in Section 3.5
hereof.
"Eurodollar Loan" means a Loan bearing interest based on the Eurodollar
Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the quotient obtained by
dividing (a) the Interbank Offered Rate for such Eurodollar Loan for such
Interest Period by (b) 1 minus the Eurodollar Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve
System against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Eurodollar Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other assets which
include Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar
Reserve Requirement.
"Event of Default" has the meaning given to said term in Section 8.1
hereof.
"Existing Credit Agreement" means that certain Eighth Amended and
Restated Credit Agreement dated as of September 27, 1996, as amended as of the
date hereof, by and among the Borrower, the lenders parties thereto and
NationsBank, as agent for such lenders.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Agent (in its individual capacity) on such day on such transactions as
determined by the Agent.
<PAGE> EX-6
"Fees" means all fees payable pursuant to Section 3.5.
"Incorporated Covenants" has the meaning assigned to such term in Section
7.2 hereof.
"Incorporated Definitions" has the meaning assigned to such term in
Section 1.2 hereof.
"Incorporated Events of Default" has the meaning assigned to such term in
8.1(e) hereof.
"Incorporated Representations" has the meaning assigned to such term in
Section 6.9 hereof.
"Interbank Offered Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor 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. If for any
reason such rate is not available, the term "Interbank Offered Rate" shall
mean, for any Eurodollar Loan for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) 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 (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Payment Date" means, (i) as to any Eurodollar Loan having an
Interest Period of one (1) week, the last day of March, June, September and
December in each year, (ii) as to any Eurodollar Loan having an Interest
Period of 1, 2 or 3 months, the last day of such Interest Period, (iii) 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 (iv) 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) prior to November 1, 1997, the Borrower may
elect Interest Periods of one (1) week, (ii) 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 (iii) no
Interest Period shall end later than the Termination Date.
"Loan" means a loan made pursuant to Sections 2.1 and 2.2 hereof.
"Loan Documents" means this Credit Agreement and the Notes.
<PAGE> EX-7
"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
2.3 hereof.
"Participation Interest" means, the extension of credit by a Lender by
way of a purchase of a participation in any Loans as provided in Section 3.13.
"Permitted Liens" means:
(i) Liens in favor of the Agent on behalf of the Lenders;
(ii) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed by
law or pursuant to customary reservations or retentions of title arising in
the ordinary course of business, provided that such Liens secure only amounts
not yet due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested in good faith
by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) Liens (other than Liens created or imposed under ERISA) incurred or
deposits made by the Borrower and its Subsidiaries in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall, within 30
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days after the
expiration of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of the
encumbered Property for its intended purposes;
(vii) Liens on Property securing Indebtedness to the extent permitted
under Section 7.1 of the Incorporated Covenants;
(viii) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(ix) the National Welders Liens; and
(x) Liens set forth on Schedule 1.1D to the Existing Credit Agreement.
"Prime Rate" means the per annum rate of interest established from time
to time by NationsBank as its prime rate, which rate may not be the lowest
rate of interest charged by NationsBank to its customers.
<PAGE> EX-8
"Required Lenders" 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, Lenders having at least 51% of
the aggregate amount of the Commitments at such time.
"Termination Date" means November 1, 1998.
"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.
1.2 Incorporated Definitions.
Except as otherwise provided below in this Section 1.2, all capitalized
terms not otherwise defined herein shall have the respective meanings assigned
to such terms in the Existing Credit Agreement as in effect as of the date
hereof (the "Incorporated Definitions") and shall be as binding on the
Borrower as if set forth fully herein. The incorporation by reference to the
Existing Credit Agreement of the Incorporated Definitions pursuant to this
Section 1.2 shall survive the termination of the Existing Credit Agreement.
For purposes of the incorporation of the Incorporated Definitions pursuant to
this Section 1.2, all references in the Incorporated Definitions to the
"Closing Date" shall be deemed to refer to the Closing Date as such term is
defined in the Existing Credit Agreement, 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 "Lender" or the "Lender s"
shall be deemed to refer to one or more of the Lenders hereunder, all
references in the Incorporated Definitions to the "Required Lenders" shall be
deemed to refer to the Required Lenders hereunder, all references in the
Incorporated Definitions to the "Credit Agreement," or any similar references,
shall be deemed to refer to this Credit 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 2.3 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 1.1 hereof.
1.3 Accounting Terms.
All accounting terms not specifically defined herein shall be construed
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
SECTION 2
LOANS
2.1 Loans.
Subject to the terms and conditions and relying upon the representations
and warranties herein set forth, each Lender, 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 Lenders exceed the
aggregate Commitments of all of the Lenders. 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.
<PAGE> EX-9
2.2 Borrowing Procedures.
(a) Minimum Amounts.
The Loans made by the Lenders 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 Lenders
in accordance with their respective Commitments; provided, however, that the
failure of any Lender to make its Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder. The initial Loan by each Lender
shall be made against delivery to such Lender of an appropriate Note, payable
to the order of such Lender, as referred to in Section 2.3 hereof. In the
event any Lender shall fail to make a Loan to the Borrower in accordance with
the terms hereof, any other Lender 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 3.2 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 2.1 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 Lenders notice
that it has received notice from the Borrower pursuant to this paragraph. On
the borrowing date specified in such notice, each Lender 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 Credit
Agreement, the Borrower shall not in any notice of borrowing under this
Section 2.2 request any Eurodollar Loan which, if made, would result in an
aggregate of more than nine (9) separate Eurodollar Loans of any Lender being
outstanding hereunder at any one time. For purposes of the foregoing, (i)
Eurodollar Loans made ratably by the Lenders 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-10
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 3.2 hereof and subject to the limitations set forth therein.
2.3 Notes.
The Loans by each Lender shall be evidenced by a Note duly executed on
behalf of the Borrower, dated the date hereof, in substantially the form of
Schedule 2.3 attached hereto, payable to the order of such Lender in a
principal amount equal to the Commitment of such Lender. Each Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 2.4 hereof. The aggregate unpaid principal amount of the
Loans of each Lender at any time shall be the principal amount owing on the
Note of such Lender 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 2.4 and Section 3.1 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 3.14 hereof.
2.4 Interest.
(a) Subject to the provisions of Section 3.1 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) 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 3.1 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
Eurodollar 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 Eurodollar 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 Lenders of the Eurodollar Rate so determined. Such
determination shall be conclusive absent manifest error.
SECTION 3
ADDITIONAL PROVISIONS REGARDING LOANS
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than
the rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then 2% greater than
the Base Rate).
<PAGE> EX-11
3.2 Extension and Conversion.
Subject to the terms of Section 5.1, the Borrower shall have the option,
on any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate type;
provided, however, that (i) except as provided in Section 3.8, Eurodollar
Loans may be converted into Base Rate Loans only on the last day of the
Interest Period applicable thereto, (ii) Eurodollar Loans may be extended, and
Base Rate Loans may be converted into Eurodollar Loans, only if no Default or
Event of Default is in existence on the date of extension or conversion, (iii)
Loans extended as, or converted into, Eurodollar Loans shall be subject to the
terms of the definition of "Interest Period" set forth in Section 1.1 and
shall be in such minimum amounts as provided in Section 2.2(a), (iv) no more
than 11 Eurodollar Loans shall be outstanding hereunder at any time (it being
understood that, for purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans, even if they begin
on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period) and (v) any request for extension or conversion of a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion shall
be effected by the Borrower by giving a Notice of Extension/Conversion (or
telephone notice promptly confirmed in writing) to the Agent prior to 11:00
A.M. (Charlotte, North Carolina time) on the Business Day of, in the case of
the conversion of a Eurodollar Loan into a Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a Eurodollar Loan as,
or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed
extension or conversion, the Loans to be so extended or converted, the types
of Loans into which such Loans are to be converted and, if appropriate, the
applicable Interest Periods with respect thereto. Each request for extension
or conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsections (b), (c) and
(d) of Section 5.1. In the event the Borrower fails to request extension or
conversion of any Eurodollar Loan in accordance with this Section, or any such
conversion or extension is not permitted or required by this Section, then
such Eurodollar Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto. The Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
3.3 Prepayments.
The Borrower shall have the right to prepay Loans in whole or in part
from time to time, subject to Section 3.11, but otherwise without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid on
three Business Days' prior written notice to the Agent and specifying the
applicable Loans to be prepaid; (ii) any prepayment of Eurodollar Loans will
be subject to Section 3.11; (iii) unless the Borrower shall specify otherwise,
amounts prepaid shall be applied first to Base Rate Loans, if any, and then to
Eurodollar Loans in direct order of Interest Period maturities; and (iv) each
such partial prepayment of Loans shall be in a minimum principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof. Subject to
the foregoing terms, amounts prepaid under this Section 3.3 shall be applied
as the Borrower may elect.
<PAGE> EX-12
3.4 Termination and Reduction of Commitments.
The Borrower may from time to time permanently reduce or terminate the
Commitments in whole or in part (in minimum aggregate amounts of $5,000,000 or
in integral multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable aggregate Commitments)) upon five
Business Days' prior written notice to the Agent; provided, however, no such
termination or reduction shall be made which would cause the aggregate
principal amount of outstanding Loans to exceed the aggregate Commitments of
all of the Lenders unless, concurrently with such termination or reduction,
the Loans are repaid to the extent necessary to eliminate such excess. The
Commitments shall automatically terminate on the Termination Date. The Agent
shall promptly notify each affected Lender of receipt by the Agent of any
notice from the Borrower pursuant to this Section 3.4. The Borrower shall pay
to the Agent for the account of the Lenders in accordance with the terms of
Section 3.5, on the date of each termination or reduction of the aggregate
Commitments, the Commitment Fee accrued through the date of such termination
or reduction on the amount of the Commitments so terminated or reduced.
3.5 Fees.
The Borrower agrees to pay in immediately available funds to the Agent
(without offset or counterclaim), for the account of the Lenders, 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 Lenders hereunder, a commitment fee (hereinafter called for
the purpose of this Section 3.5 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 Lenders hereunder.
3.6 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption
of, or any change in, or any change by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof in the interpretation or administration of, any applicable law, rule
or regulation regarding capital adequacy, or compliance by such Lender 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 Lender's capital
or assets as a consequence of its commitments or obligations hereunder to a
level below that which such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy), then, upon notice from such Lender
to the Borrower, the Borrower shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction. Within a reasonable time after making a request for such
additional amount hereunder, such Lender will furnish to the Borrower a
statement certifying the amount of such reduction and describing the event
giving rise to such reduction. Each determination by any such Lender of
amounts owing under this Section shall, absent manifest error, be conclusive
and binding on the parties hereto.
<PAGE> EX-13
3.7 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, the Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given (a) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans
and (b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the
Agent, no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Base Rate Loans to Eurodollar
Loans.
3.8 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to
the Borrower and the Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base
Rate Loan to Eurodollar Loans shall forthwith be canceled and, until such time
as it shall no longer be unlawful for such Lender to make or maintain
Eurodollar Loans, such Lender shall then have a commitment only to make a Base
Rate Loan when a Eurodollar Loan is requested and (c) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required
by law. If any such conversion of a Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 3.11.
3.9 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable
to any Lender, or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Closing Date (or,
if later, the date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Eurodollar Loans made by it or its obligation to make
Eurodollar Loans, or change the basis of taxation of payments to such Lender
in respect thereof (except for (i) Non-Excluded Taxes covered by Section 3.10
(including Non-Excluded Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under Section 3.10(b)) and (ii) changes
in taxes measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its applicable
lending office, branch, or any affiliate thereof)); or
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
<PAGE> EX-14
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination of
the Eurodollar Rate hereunder;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, upon notice
to the Borrower from such Lender, through the Agent, in accordance herewith,
the Borrower shall be obligated to promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable, provided that, in any such case, the
Borrower may elect to convert the Eurodollar Loans made by such Lender
hereunder to Base Rate Loans by giving the Agent at least one Business Day's
notice of such election, in which case the Borrower shall promptly pay to such
Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to Section 3.11; provided further, however, that if the
result of any the foregoing shall be to decrease the cost to any Lender of
making or maintaining any Eurodollar Loan by a material amount, then such
Lender will credit to the Borrower an amount equal to such decreased costs.
If any Lender becomes entitled to claim any additional amounts pursuant to
this subsection, it shall provide prompt notice thereof to the Borrower,
through the Agent, certifying (x) that one of the events described in this
paragraph (a) has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Lender, through the Agent, to the Borrower shall be
conclusive and binding on the parties hereto in the absence of manifest error.
Each Lender agrees that it will promptly refund any amounts received by it
pursuant to this Section 3.9 that were erroneously billed to the Borrower,
together with interest thereon at the Federal Funds Rate. This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.10 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any court, or governmental body, agency or
other official, excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any branch or
affiliate thereof, and all franchise taxes, branch taxes, taxes on doing
business or taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes, imposed: (i) by the jurisdiction under
the laws of which such Lender, applicable lending office, branch or affiliate
is organized or is located, or in which its principal executive office is
located, or any nation within which such jurisdiction is located or any
political subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received payment
under or enforced, this Credit Agreement or any Notes. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Agent or any Lender hereunder or under any Notes, (A)
<PAGE> EX-15
the amounts so payable to the Agent or such Lender shall be increased to the
extent necessary to yield to the Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Credit Agreement and any Notes,
provided, however, that the Borrower shall be entitled to deduct and withhold
any Non-Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any Non-Excluded
Taxes are payable by the Borrower, and (B) as promptly as possible thereafter
the Borrower shall send to the Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Agent or any Lender as a result of any such failure. Each
Lender agrees that it will promptly refund any amounts received by it pursuant
to this Section 3.9 that were erroneously billed to the Borrower, together
with interest thereon at the Federal Funds Rate. The agreements in this
subsection shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the Borrower under
this Credit Agreement or Notes to such Lender, deliver to the Borrower and the
Agent (A) two (2) duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under this Credit Agreement
and any Notes without deduction or withholding of any United States federal
income taxes and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to the Borrower and the Agent two (2) further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it to
the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or the
Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent to
the Borrower (for the benefit of the Borrower and the Agent) that it is not a
bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
(ii) agree to furnish to the Borrower on or before the date of any payment by
the Borrower, with a copy to the Agent two (2) accurate and complete original
signed copies of Internal Revenue Service Form W-8, or successor applicable
form certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the provisions of
Section 881(c) of the Internal Revenue Code with respect to payments to be
made under this Credit Agreement and any Notes (and to deliver to the Borrower
and the Agent two (2) further copies of such form on or before the date it
expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recently provided form and, if necessary, obtain any
<PAGE> EX-16
extensions of time reasonably requested by the Borrower or the Agent for
filing and completing such forms), and (iii) agree, to the extent legally
entitled to do so, upon reasonable request by the Borrower, to provide to the
Borrower (for the benefit of the Borrower and the Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments under this
Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender or a
participant of a Lender pursuant to subsection 10.3 shall, upon the
effectiveness of the related transfer, be required to provide all of the
forms, certifications and statements required pursuant to this subsection,
provided that in the case of a participant of a Lender the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as
if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to
the Lender from which the related participation shall have been purchased.
3.11 Indemnity.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur
(other than through such Lender's breach of its obligations hereunder, gross
negligence or willful misconduct) as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Credit Agreement, (b) default by the
Borrower in making any prepayment of a Eurodollar Loan after the Borrower has
given a notice thereof in accordance with the provisions of this Credit
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. With respect
to Eurodollar Loans, such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein (excluding, however,
the Applicable Percentage included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants
of the Borrower set forth in this Section 3.11 shall survive the termination
of this Credit Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.12 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or prepayment of principal of
any Loan, each payment of interest on the Loans, each payment of Commitment
Fees, each reduction of the Commitments and each conversion or extension of
any Loan, shall be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans and Participation
Interests.
<PAGE> EX-17
(b) Advances. Unless the Agent shall have been notified in writing
by any Lender prior to a Loan borrowing that such Lender will not make the
amount that would constitute its ratable share of such Loan borrowing
available to the Agent, the Agent may assume that such Lender is making such
amount available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by such Lender within the time
period specified therefor hereunder, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the Federal Funds
Rate for the period until such Lender makes such amount immediately available
to the Agent. A certificate of the Agent submitted to any Lender with respect
to any amounts owing under this subsection shall be conclusive in the absence
of manifest error.
3.13 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender
were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit
Agreement, if any Lender or the Agent shall fail to remit to the Agent or any
other Lender an amount payable by such Lender or the Agent to the Agent or
such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount is paid
to the Agent or such other Lender at a rate per annum equal to the Federal
Funds Rate. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section 3.13 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.13 to share in the benefits of any
recovery on such secured claim.
3.14 Payments, Computations, Etc.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in dollars in immediately available
funds, without offset, deduction, counterclaim or withholding of any kind, at
the Agent's office specified in Section 10.1 not later than 2:00 P.M.
<PAGE> EX-18
(Charlotte, North Carolina time) on the date when due. Payments received
after such time shall be deemed to have been received on the next succeeding
Business Day. The Agent may (but shall not be obligated to) debit the amount
of any such payment which is not made by such time to any ordinary deposit
account of the Borrower maintained with the Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Agent the Loans, Fees, interest or other
amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.12(a)). The Agent will distribute such payments to
such Lenders, if any such payment is received prior to 12:00 NOON (Charlotte,
North Carolina time) on a Business Day in like funds as received prior to the
end of such Business Day and otherwise the Agent will distribute such payment
to such Lenders on the next succeeding Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment
shall instead be made on the next preceding Business Day. Interest shall
accrue from and include the date of borrowing, but exclude the date of
payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of the Borrower's
Obligations or any other amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of each of
the Lenders in connection with enforcing its rights under the Credit Documents
or otherwise with respect to the Borrower's Obligations owing to such Lender;
FOURTH, to the payment of all of the Borrower's Obligations
consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the
Borrower's Obligations;
SIXTH, to all other Borrower's Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH" above;
and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
<PAGE> EX-19
succeeding category and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
and Participation Interests held by such Lender bears to the aggregate then
outstanding Loans and Participation Interests) of amounts available to be
applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above.
SECTION 4
CONDITIONS PRECEDENT AS OF CLOSING DATE
4.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial Loans shall be subject to satisfaction of the following
conditions (in form and substance acceptable to the Lenders):
(a) The Agent shall have received original counterparts of this
Credit Agreement executed by each of the parties hereto;
(b) The Agent shall have received an appropriate original Note for
each Lender, executed by the Borrower;
(c) The Agent shall have received all documents it may reasonably
request relating to the existence and good standing of the Borrower, the
corporate or other necessary authority for and the validity of the Credit
Documents, and any other matters relevant thereto, all in form and substance
reasonably satisfactory to the Agent;
(d) The Agent shall have received a legal opinion of McCausland,
Keen & Buckman, counsel for the Borrower, dated as of the Closing Date and
substantially in the form of Schedule 4.1(d); and
(e) The Agent shall have received, for its own account and for the
accounts of the Lenders, all fees and expenses required by this Credit
Agreement or any other Credit Document to be paid on or before the Closing
Date.
SECTION 5
CONDITIONS OF LENDING
5.1 Conditions of Lending.
The obligations of the Lenders to make any Loans are subject to the
satisfaction of the conditions precedent set forth in Section 4 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 2.2(c) hereof;
(b) the representations and warranties of the Borrower set forth in
Section 6 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;
<PAGE> EX-20
(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 Lenders shall not exceed the aggregate Commitments of all of the Lenders.
5.2 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 5.1(b), (c) and (d) hereof.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Lender that:
6.1 Financial Condition.
(a) The audited consolidated and consolidating balance sheet of the
Borrower and its consolidated Subsidiaries, and the related consolidated and
consolidating statements of earnings and statements of cash flows, as of March
31, 1997 have heretofore been furnished to each Lender. Such financial
statements (including the notes thereto) (i) have been audited by KPMG Peat
Marwick, (ii) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby and (iii) present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Borrower and
its consolidated Subsidiaries as of such date and for such periods. The
unaudited interim balance sheets of the Borrower and its consolidated
Subsidiaries as at the end of, and the related unaudited interim statements of
earnings and of cash flows for, each fiscal month and quarterly period ended
after March 31, 1997 and prior to the Closing Date have heretofore been
furnished to each Lender. Such interim financial statements for each such
quarterly period, (i) have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby and (ii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the
consolidated financial condition, results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such date and for such
periods. During the period from March 31, 1997 to and including the Closing
Date, there has been no sale, transfer or other disposition by the Borrower or
any of its Subsidiaries of any material part of the business or property of
the Borrower and its consolidated Subsidiaries, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any capital stock of any other person) material in relation to the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries, taken as a whole, in each case, which, is not reflected in the
foregoing financial statements or in the notes thereto and has not otherwise
been disclosed in writing to the Lenders on or prior to the Closing Date.
(b) The projections of profit and loss statements, balance sheets and
cash flow reports for the Borrower and its consolidated Subsidiaries on a
consolidated basis for fiscal year 1998, copies of which have heretofore been
furnished to each Lender, are based upon reasonable assumptions made known to
the Lenders and upon information not known to be incorrect or misleading in
any material respect.
<PAGE> EX-21
6.2 No Change.
Since March 31, 1997, there has been no development or event relating to
or affecting the Borrower or any of its Subsidiaries which has had or would be
reasonably expected to have a Material Adverse Effect.
6.3 Organization; Existence; Compliance with Law.
Each of the Borrower and its Subsidiaries (a) is a corporation duly
organized, validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, (b) has the corporate or
other necessary power and authority, and the legal right, to own and operate
its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the
failure to be so qualified and in good standing would not be reasonably
expected to have a Material Adverse Effect, and (d) is in compliance with all
material Requirements of Law.
6.4 Power; Authorization; Enforceable Obligations.
The Borrower has the corporate or other necessary power and authority,
and the legal right, to make, deliver and perform the Credit Documents and to
borrow hereunder, and has taken all necessary corporate action to authorize
the borrowings on the terms and conditions of this Credit Agreement and to
authorize the execution, delivery and performance of the Credit Documents to
which it is a party. No consent or authorization of, filing with, notice to
or other similar act by or in respect of, any Governmental Authority or any
other Person is required to be obtained or made by or on behalf of the
Borrower in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents to
which the Borrower is a party. This Credit Agreement has been, and each other
Credit Document to which the Borrower is a party will be, duly executed and
delivered on behalf of the Borrower. This Credit Agreement constitutes, and
each other Credit Document when executed and delivered will constitute, a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
6.5 No Legal Bar.
The execution, delivery and performance of the Credit Documents by the
Borrower, the borrowings hereunder and the use of the proceeds thereof (a)
will not violate any Requirement of Law or contractual obligation of the
Borrower or any of its Subsidiaries in any respect that would reasonably be
expected to have a Material Adverse Effect, (b) will not result in, or
require, the creation or imposition of any Lien on any of the properties or
revenues of any of the Borrower or any of its Subsidiaries pursuant to any
such Requirement of Law or contractual obligation, and (c) will not violate or
conflict with any provision of the Borrower's articles of incorporation or
by-laws.
<PAGE> EX-22
6.6 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock"
within the meaning of Regulation G or Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by any
Lender or the Agent, the Borrower will furnish to the Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U. No indebtedness being reduced or
retired out of the proceeds of the Loans was or will be incurred for the
purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meanings of Regulation U does not constitute more
than 25% of the value of the consolidated assets of the Borrower and its
Subsidiaries. None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation G, T, U or X.
(b) Neither the Borrower nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, each as amended. In
addition, neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by such a
company, or (ii) a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of the
Borrower or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O issued by the Board of Governors of the Federal Reserve System.
(d) Each of the Borrower and its Subsidiaries has obtained all material
licenses, permits, franchises or other governmental authorizations necessary
to the ownership of its respective Property and to the conduct of its
business.
(e) Neither the Borrower nor any of its Subsidiaries is in violation of
any applicable statute, regulation or ordinance of the United States of
America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including without limitation,
environmental laws and regulations), which violation could reasonably be
expected to have a Material Adverse Effect.
(f) Each of the Borrower and its Subsidiaries is current with all
material reports and documents, if any, required to be filed with any state or
federal securities commission or similar agency and is in full compliance in
all material respects with all applicable rules and regulations of such
commissions.
6.7 Subsidiaries.
Schedule 6.7 sets forth all the Subsidiaries of the Borrower at the
Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of the Borrower therein.
<PAGE> EX-23
6.8 Purpose of Loans.
The proceeds of the Loans hereunder shall be used solely by the Borrower
(i) to finance the acquisition of new Subsidiaries, (ii) to finance loans,
advances and other investments by the Borrower and its Subsidiaries to the
extent permitted under this Credit Agreement and (iii) for the working
capital, capital expenditure and other general corporate purposes of the
Borrower and its Subsidiaries.
6.9 Incorporated Representations and Warranties.
The Borrower hereby agrees that the representations and warranties
contained in Section 5 (other than any of the representations and warranties
set forth in Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.13, 5.14 and 5.15) of the
Existing Credit 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 Credit Agreement of the Incorporated
Representations pursuant to this Section 6.9 shall survive the termination of
the Existing Credit Agreement. For purposes of the incorporation of the
Incorporated Representations pursuant to this Section 6.9, all references in
the Incorporated Representations to the "Closing Date" shall be deemed to
refer to the Closing Date as such term is defined in the Existing Credit
Agreement, 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 "Lender " or the "Lenders" shall be deemed
to refer to one or more of the Lenders hereunder, all references in the
Incorporated Representations to the "Required Lenders" shall be deemed to
refer to the Required Lenders hereunder, all references in the Incorporated
Representations to the "Credit Agreement," or any similar references, shall be
deemed to refer to this Credit 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 2.3 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 1.1 hereof.
SECTION 7
COVENANTS
7.1 Information Covenants.
Within five (5) Business Days after any Executive Officer of the Borrower
obtains knowledge thereof, the Borrower will give written notice to the Agent
of the occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action the
Borrower proposes to take with respect thereto.
7.2 Use of Proceeds.
The Borrower will use the proceeds of the Loans and will use the Letters
of Credit solely for the purposes set forth in Section 6.8.
7.3 Incorporated Covenants.
The Borrower hereby agrees that the affirmative and negative covenants
contained in Sections 6 and 7 of the Existing Credit 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
<PAGE> EX-24
herein. The incorporation by reference to the Existing Credit Agreement of
the Incorporated Covenants pursuant to this Section 7.2 shall survive the
termination of the Existing Credit Agreement. For purposes of the
incorporation of the Incorporated Covenants pursuant to this Section 7.2, all
references in the Incorporated Covenants to the "Closing Date" shall be deemed
to refer to the Closing Date as such term is defined in the Existing Credit
Agreement, 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 "Lender " or the "Lenders" shall be deemed to refer to one or
more of the Lenders hereunder, all references in the Incorporated Covenants to
the "Required Lenders" shall be deemed to refer to the Required Lenders
hereunder, all references in the Incorporated Covenants to the "Credit
Agreement," or any similar reference, shall be deemed to refer to this Credit
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 2.3 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 1.1
hereof.
SECTION 8
EVENTS OF DEFAULT AND ACCELERATION
8.1 Events of Default; Acceleration.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Borrower shall
(i) default in the payment when due of any principal of any of
the Loans, or
(ii) default, and such defaults shall continue for five (5) or
more days, in the payment when due of any interest on the Loans, or of any
Fees or other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by the Borrower herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made; or
(c) Covenants. The Borrower shall default in the due performance
or observance by it of any term, covenant or agreement (other than those
referred to in subsections (a) or (b) of this Section 8.1) contained in this
Credit Agreement and such default shall continue unremedied for a period of at
least 30 days after the earlier of a Executive Officer of the Borrower
becoming aware of such default or notice thereof by the Agent; or
(d) Other Credit Documents. The Borrower shall default in the due
performance or observance of any term, covenant or agreement in any of the
other Credit Documents (subject to applicable grace or cure periods, if any);
or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to the Borrower or any of its Subsidiaries; or
<PAGE> EX-25
(f) Defaults under Other Indebtedness. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit Agreement)
in excess of $1,000,000 in the aggregate for the Borrower and its Subsidiaries
taken as a whole any of the following shall occur (unless, with respect to any
Indebtedness in favor of the seller of a company acquired by the Borrower or
any of its Subsidiaries, such occurrence is in connection with a bona fide
dispute as to the right of the applicable Person to offset such Indebtedness
against indemnification obligations of the holder of such Indebtedness to such
Person and such Person shall have made adequate provision (as determined by
the Required Lenders in their reasonable discretion) for such Indebtedness on
its books of account): (A) the Borrower or any of its Subsidiaries shall (1)
default in any payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (2) the occurrence
and continuance of a default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event or condition shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness (or trustee or agent on
behalf of such holders) to cause (determined without regard to whether any
notice or lapse of time is required), any such Indebtedness to become due
prior to its stated maturity; or (B) any such Indebtedness shall be declared
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(g) Judgments. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability of
$1,000,000 or more in the aggregate (to the extent not paid or fully covered
by insurance provided by a carrier who has acknowledged coverage) and any such
judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 30 days from the entry thereof; or
(h) ERISA. Any of the following events or conditions, if such
event or condition reasonably could be expected to involve possible taxes,
penalties, and other liabilities in an aggregate amount in excess of
$1,000,000: (1) any "accumulated funding deficiency," as such term is defined
in Section 302 of ERISA and Section 412 of the Code, whether or not waived,
shall exist with respect to any Plan, or any lien shall arise on the assets of
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate in favor
of the PBGC or a Plan; (2) a Termination Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the Agent, likely
to result in the termination of such Plan for purposes of Title IV of ERISA;
(3) a Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the Agent,
likely to result in (i) the termination of such Plan for purposes of Title IV
of ERISA, or (ii) the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or insolvency
or (within the meaning of Section 4245 of ERISA) such Plan; or (4) any
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility shall occur which may
subject the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate to
any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument pursuant to which
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate has agreed
or is required to indemnify any person against any such liability; or
(i) Ownership. Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership, directly or indirectly, of, or shall
have acquired by contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation, will result in its or their
acquisition of, control over, Voting Stock of the Borrower (or other
<PAGE> EX-26
securities convertible into such Voting Stock) representing 35% or more of the
combined voting power of all Voting Stock of the Borrower; provided, however,
such occurrence shall not constitute an Event of Default hereunder until a
period of 30 days has elapsed from the date of the acquisition by such Person
and/or its Affiliates of Voting Stock of the Borrower which gives such Person
and/or its Affiliates an aggregate ownership of more than 35% of the Voting
Stock of the Borrower; provided further, if such Person and/or its Affiliates
have filed a tender offer statement with the Securities and Exchange
Commission in connection with such acquisition, the 30 day period referenced
above in the foregoing proviso shall commence on the date of the filing with
the Securities and Exchange Commission of such tender offer statement.
8.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
or cured to the satisfaction of the Required Lenders (pursuant to the voting
procedures in Section 10.6), the Agent shall, upon the request and direction
of the Required Lenders, by written notice to the Borrower take any of the
following actions:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans and any and all other indebtedness or
obligations of any and every kind owing by the Borrower to the Agent and/or
any of the Lenders hereunder to be due whereupon the same shall be immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 8.1(e) shall occur, then the Commitments shall automatically terminate
and all Loans, all accrued interest in respect thereof, all accrued and unpaid
Fees and other indebtedness or obligations owing to the Agent and/or any of
the Lenders hereunder automatically shall immediately become due and payable
without the giving of any notice or other action by the Agent or the Lenders.
SECTION 9
THE AGENT
9.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as
administrative agent (in such capacity as Agent hereunder, the "Agent") of
such Lender to act as specified herein and the other Credit Documents, and
each such Lender hereby authorizes the Agent as the agent for such Lender, to
take such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere herein and
in the other Credit Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
<PAGE> EX-27
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise
exist against the Agent. The provisions of this Section are solely for the
benefit of the Agent and the Lenders and the Borrower shall have no rights as
a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit
Documents, the Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for the Borrower or any of its respective
Affiliates.
9.2 Delegation of Duties.
The Agent may execute any of their respective duties hereunder or under
the other Credit 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.
9.3 Exculpatory Provisions.
The Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct),
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement or other written or oral statement referred to
or provided for in, or received by the Agent under or in connection herewith
or in connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure
of the Borrower to perform its obligations hereunder or thereunder. The Agent
shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by the
Borrower in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by the Agent to the Lenders
or by or on behalf of the Borrower to the Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained herein or
therein or as to the use of the proceeds of the Loans or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Borrower or any of its respective
Affiliates.
9.4 Reliance on Communications.
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 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 with reasonable care). The Agent may deem and treat the
Lenders as the owner of their respective interests hereunder for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
<PAGE> EX-28
have been filed with the Agent in accordance with Section 10.3(b) hereof. The
Agent shall be fully justified in failing or refusing to take any action under
this Credit Agreement or under any of the other Credit Documents unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders 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,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 10.6, all the Lenders) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
9.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or the Borrower referring to the Credit
Document, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders.
9.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that each of the Agent and its
officers, directors, employees, agents, attorneys-in-fact or affiliates has
not made any representations or warranties to it and that no act by the Agent
or any affiliate thereof hereinafter taken, including any review of the
affairs of the Borrower or any of its respective Affiliates, shall be deemed
to constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower or its
respective Affiliates and made its own decision to make its Loans hereunder
and enter into this Credit Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender,
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 Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its respective Affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower or any of its
respective Affiliates which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification.
The Lenders 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 their respective Commitments (or
<PAGE> EX-29
if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests
of the Lenders), 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 final payment of all of the obligations
of the Borrower hereunder and under the other Credit Documents) be imposed on,
incurred by or asserted against the Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
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 Lender 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 gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any
purpose shall, in the opinion of the Agent, be insufficient or become
impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity
is furnished. The agreements in this Section shall survive the repayment of
the Loans and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
9.8 Agent in its Individual Capacity.
The Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, its Subsidiaries
or their respective Affiliates as though the Agent were not the Agent
hereunder. With respect to the Loans made by and all obligations of the
Borrower hereunder and under the other Credit Documents, the Agent shall have
the same rights and powers under this Credit Agreement as any Lender and may
exercise the same as though it were not the Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
9.9 Successor Agent.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and be removed with or without cause by the Required Lenders upon 30
days' written notice to the Agent. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the notice of
resignation or notice of removal, as appropriate, then the retiring Agent
shall select a successor Agent provided such successor is a Lender hereunder
or 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. Upon the acceptance of any appointment as Agent hereunder by a
successor, 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 as
Agent, as appropriate, under this Credit Agreement and the other Credit
Documents and the provisions of this Section 9.9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under
this Credit Agreement.
<PAGE> EX-30
SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to
the number set out below, (iii) the day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (iv) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Borrower and the Agent,
set forth below, and, in the case of the Lenders, set forth on Schedule 1.1A,
or at such other address as such party may specify by written notice to the
other parties hereto:
if to the Borrower:
Airgas, Inc.
Five Radnor Corporate Center
259 Radnor-Chester Road, Suite 100
Radnor, PA 19087-5240
Attn: Chief Financial Officer
Telecopy: (610) 687-1052
with a copy to:
McCausland, Keen & Buckman
259 Radnor-Chester Road, Suite 160
Radnor, PA 19087-5240
Attn: Melvin J. Buckman, Esq.
Telecopy: (610) 341-1099
if to the Agent:
NationsBank, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, NC 28255
Attn: M. Gregory Seaton
Telecopy: (704) 386-3271
with a copy to:
NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Lori McIntosh
Telecopy: (704) 386-9923
<PAGE> EX-31
10.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located)
to or for the credit or the account of the Borrower against obligations and
liabilities of such Person to such Lender hereunder, under the Notes, the
other Credit Documents or otherwise, irrespective of whether such Lender shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event
of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. Any Person purchasing a participation in the Loans
and Commitments hereunder pursuant to Section 3.13 or Section 10.3(c) may
exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender hereunder.
10.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that the Borrower may not assign or transfer any
of its interests without prior written consent of all the Lenders; provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth in this Section 10.3, provided however that nothing herein shall
prevent or prohibit any Lender from (i) pledging its Loans hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) granting assignments or selling participations
in such Lender's Loans and/or Commitments hereunder to its parent company
and/or to any Affiliate or Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of its rights
and obligations hereunder, pursuant to an assignment agreement substantially
in the form of Schedule 10.3(b), to (i) any Lender or any Affiliate or
Subsidiary of a Lender, or (ii) any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) reasonably acceptable to the Agent and the
Borrower; provided that (i) any such assignment (other than any assignment to
an existing Lender) shall be in a minimum aggregate amount of $5,000,000 of
the Commitments and in integral multiples of $1,000,000 above such amount (or,
if less, the remaining amount of the Commitment being assigned by such Lender)
and (ii) each such assignment shall be of a constant, not varying, percentage
of all such Lender's rights and obligations under this Credit Agreement. Any
assignment hereunder shall be effective upon delivery to the Agent of written
notice of the assignment together with a transfer fee of $3,500 payable to the
Agent for its own account from and after the effective date specified in the
applicable assignment agreement. The assigning Lender will give prompt notice
to the Agent and the Borrower of any such assignment. Upon the effectiveness
of any such assignment (and after notice to, and (to the extent required
pursuant to the terms hereof), with the consent of, the Borrower as provided
herein), the assignee shall become a "Lender" for all purposes of this Credit
Agreement and the other Credit Documents and, to the extent of such
assignment, the assigning Lender shall be relieved of its obligations
hereunder to the extent of the Loans and Commitment components being assigned.
Along such lines the Borrower agrees that upon notice of any such assignment
<PAGE> EX-32
and surrender of the appropriate Note or Notes, it will promptly provide to
the assigning Lender and to the assignee separate promissory notes in the
amount of their respective interests substantially in the form of the original
Note (but with notation thereon that it is given in substitution for and
replacement of the original Note or any replacement notes thereof). By
executing and delivering an assignment agreement in accordance with this
Section 10.3(b), the assigning Lender thereunder and the assignee thereunder
shall be deemed to confirm to and agree with each other and the other parties
hereto as follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim; (ii) except as set forth in clause (i) above, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto or the financial
condition of the Borrower or any of its respective Affiliates or the
performance or observance by the Borrower of any of its obligations under this
Credit Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such assignment
agreement; (iv) such assignee confirms that it has received a copy of this
Credit Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such assignment agreement; (v) such assignee will
independently and without reliance upon the Agent, such assigning Lender or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Credit Agreement and the other Credit
Documents; (vi) such assignee appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under this Credit Agreement
or any other Credit Document as are delegated to the Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Credit Agreement and the
other Credit Documents are required to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or assign
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for
all purposes under this Credit Agreement (such selling Lender's obligations
under the Credit Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such
amendment or waiver would (A) reduce the principal of or rate of interest on
or Fees in respect of any Loans in which the participant is participating or
(B) postpone the date fixed for any payment of principal (including extension
of the Termination Date or the date of any mandatory prepayment), interest or
Fees in which the participant is participating, and (iii) sub-participations
by the participant (except to an affiliate, parent company or affiliate of a
parent company of the participant) shall be prohibited. In the case of any
such participation, the participant shall not have any rights under this
Credit Agreement or the other Credit Documents (the participant's rights
against the selling Lender in respect of such participation to be those set
forth in the participation agreement with such Lender creating such
participation) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation, provided,
however, that such participant shall be entitled to receive additional amounts
<PAGE> EX-33
under Sections 3.6, 3.9, 3.10 and 3.11 to the same extent as if it were a
Lender provided that it shall not be entitled to receive any more than the
selling Lender would have received had it not sold the participation.
10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Agent or any Lender and the Borrower shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies
which the Agent or any Lender would otherwise have. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of the Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
10.5 Payment of Expenses, Etc.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agent in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the
other Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Moore &
Van Allen, PLLC, special counsel to the Agent) and any amendment, waiver or
consent relating hereto and thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Borrower under
this Credit Agreement and (B) of the Agent and the Lenders in connection with
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent
and each of the Lenders); (ii) pay and hold each of the Lenders harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such Lender) to
pay such taxes; and (iii) indemnify each Lender, its officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred
by any of them as a result of, or arising out of, or in any way related to, or
by reason of (A) any investigation, litigation or other proceeding (whether or
not any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding or (B)
the presence or Release of any Materials of Environmental Concern at, under or
from any Property owned, operated or leased by the Borrower or any of its
Subsidiaries, or the failure by the Borrower or any of its Subsidiaries to
comply with any Environmental Law (but excluding, in the case of either of
clause (A) or (B) above, any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified). Notwithstanding the
foregoing, the Borrower shall not be liable for any costs, expenses or taxes
incurred by the Agent or any Lender in connection with any assignment or
participation under Section 10.3.
<PAGE> EX-34
10.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is
in writing entered into by, or approved in writing by, the Required Lenders
and the Borrower, provided that no such amendment, change, waiver, discharge
or termination shall, without the consent of each Lender:
(i) extend the final maturity of any Loan, or any portion thereof;
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default
increase in interest rates) on any Loan or fees hereunder;
(iii) reduce the principal amount on any Loan or the amount of
any accrued interest or Fees, or increase the Commitments of the Lenders over
the amount thereof in effect (it being understood and agreed that a waiver of
any Default or Event of Default or of a mandatory reduction in the total
commitments shall not constitute a change in the terms of any Commitment of
any Lender);
(iv) amend, modify or waive any provision of this Section 10.6 or
Section 3.6, 3.10, 3.11, 3.12, 3.13, 8.1(a), 10.2, 10.3, 10.5 or 10.9;
(v) reduce any percentage specified in, or otherwise modify, the
definition of "Required Lenders;" or
(vi) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under (or in respect of) the Credit Documents to
which it is a party.
No provision of Section 10 may be amended without the consent of the Agent.
10.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
10.8 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 Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in
Section 3.9, 3.11, 9.7 or 10.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the repayment of the Loans and
other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Borrower herein shall survive delivery of the Notes and the making of the
Loans hereunder.
<PAGE> EX-35
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA. Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the
State of North Carolina in Mecklenburg County, or of the United States for the
Western District of North Carolina, and, by execution and delivery of this
Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices pursuant to
Section 10.1, such service to become effective three (3) days after such
mailing. Nothing herein shall affect the right of the Agent to serve process
in any other manner permitted by law or to commence legal proceedings or to
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Credit Agreement or
any other Credit Document brought in the courts referred to in subsection (a)
hereof and hereby further irrevocably waives and agrees not to plead or claim
in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS AND
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT
AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
10.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all
prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date and satisfaction of the conditions precedent set forth
in Section 5.1 when it shall have been executed by the Borrower and the Agent,
and the Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and
assigns.
<PAGE> EX-36
(b) The term of this Credit Agreement shall be until no Loans or any
other amounts payable hereunder or under any of the other Credit Documents
shall remain outstanding and until all of the Commitments hereunder shall have
expired or been terminated.
10.14 Confidentiality.
The Agent and the Lenders agree to keep confidential (and to cause their
respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf the Borrower
(whether before or after the Closing Date) which relates to the Borrower or
any of its Subsidiaries (the "Information"). Notwithstanding the foregoing,
the Agent and each Lender shall be permitted to disclose Information (i) to
its affiliates, officers, directors, employees, agents and representatives in
connection with its participation in any of the transactions evidenced by this
Credit Agreement or any other Credit Documents or the administration of this
Credit Agreement or any other Credit Documents; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal process,
or requested by any Governmental Authority; (iii) to the extent such
Information (A) becomes publicly available other than as a result of a breach
of this Credit Agreement or any agreement entered into pursuant to clause (iv)
below, (B) becomes available to the Agent or such Lender on a non-confidential
basis from a source other than the Borrower or (C) was available to the Agent
or such Lender on a non-confidential basis prior to its disclosure to the
Agent or such Lender by the Borrower; (iv) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first specifically agrees in a
writing furnished to and for the benefit of the Borrower to be bound by the
terms of this Section 10.14; or (v) to the extent that the Borrower shall have
consented in writing to such disclosure. Nothing set forth in this Section
10.14 shall obligate the Agent or any Lender to return any materials furnished
by the Borrower.
10.15 Conflict.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document,
on the other hand, this Credit Agreement shall control.
10.16 Obligations Senior to Subordinated Debt.
The payment of the Borrower's Obligations hereunder and under the other
Credit Documents is senior to the payment of the indebtedness of the Borrower
under the Senior Subordinated Note Purchase Agreements and each Note Guaranty
(as defined in the Senior Subordinated Note Purchase Agreements) in accordance
with the terms thereof.
[The remainder of this page has been left blank intentionally.]
<PAGE> EX-37
IN WITNESS WHEREOF, each of the parties hereto has caused this Credit
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AIRGAS, INC.
By: /s/ Thomas C. Deas, Jr.
Thomas C. Deas, Jr.
Vice President/Finance
NATIONSBANK, N.A.,
in its individual capacity
and as Agent for the Lenders
By: /s/ Rajesh Sood
Rajesh Sood
Vice President
<PAGE>
<PAGE> EX-38
SCHEDULE 1.1A
LENDERS' COMMITMENT LEVELS
DOLLAR AMOUNT
% OF TOTAL OF
NAME AND ADDRESS OF LENDER COMMITMENTS COMMITMENT
__________________________ ___________ ______________
NationsBank, N.A. 100% $125,000,000.00
NationsBank Corporate Center
8th Floor
Charlotte, North Carolina 28255
Attn: Rajesh Sood
Facsimile No.: (704) 386-3271
_____ _______________
100% $125,000,000.00
<PAGE>
<PAGE> EX-39
SCHEDULE 2.3
PROMISSORY NOTE
$____________________ June 30, 1997
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of _____________________, a
________________________, in its individual capacity (the "Lender"), at the
office of NationsBank, N.A., as Agent (the "Agent"), at NationsBank Corporate
Center, 100 North Tryon Street, Charlotte, North Carolina 28255 (or at such
other place or places as the holder hereof may designate), at the times set
forth in the Credit Agreement dated as of June 30, 1997 among the Borrower,
the Agent, the Lender and certain other lenders (as amended from time to time,
the "Credit Agreement"; all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Credit Agreement), but in no event
later than the Termination Date, in lawful money of the United States of
America, in immediately available funds, the principal amount of
__________________________ ($____________) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to the Credit 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 Section 2
and Section 3.3(c) of the Credit 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 2.4 of the Credit 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
Credit Agreement, this Note and all other indebtedness of the Borrower to the
Lender 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 Credit
Agreement.
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:
Title:
<PAGE> EX-40
SCHEDULE A TO THE AIRGAS, INC.
PROMISSORY NOTE DATED JUNE 30, 1997
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
____ _____ ______ _________ ________ _________ _________
<PAGE> EX-41
SCHEDULE 4.1(d)
FORM OF OPINION OF MCCAUSLAND, KEEN & BUCKMAN
<PAGE>
<PAGE> EX-42
SCHEDULE 6.7
SUBSIDIARIES
<PAGE>
<PAGE> EX-43
SCHEDULE 10.3(b)
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of _______________, 199_ is
entered into between ________________ ("Assignor") and ____________________
("Assignee").
Reference is made to the Credit Agreement, dated as of June 30, 1997 as
amended and modified from time to time thereafter, the "Credit Agreement"),
among Airgas, Inc., the Lenders party thereto and NationsBank, N.A., as Agent.
Terms defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
effective as of the Effective Date set forth below, the interests set forth
below (the "Assigned Interest") in the Assignor's rights and obligations under
the Credit Agreement, including, without limitation, the interests set forth
below in the Commitments and outstanding Loans of the Assignor on the
effective date of the assignment designated below (the "Effective Date"),
together with unpaid Fees accrued on the assigned Commitments to the Effective
Date and unpaid interest accrued on the assigned Loans to the Effective Date.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by
all the representations, warranties and agreements set forth in Section
10.3(b) of the Credit Agreement, a copy of which has been received by the
Assignee. From and after the Effective Date (i) the Assignee, if it is not
already a Lender under the Credit Agreement, shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the interests
purchased and assumed by the Assignee under this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the interests sold and assigned by the Assignor under
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of North Carolina.
3. Terms of Assignment
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:
(e) Commitment Percentage Assigned
(expressed as a percentage set forth
to at least 8 decimals) %
(f) Commitment Percentage
of Assignee after giving effect
to this Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
<PAGE> EX-44
(g) Commitment Percentage
of Assignor after giving effect
to this Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
(h) Aggregate Commitments
as of Effective Date $_____________
(i) Dollar Amount of Assignor's
Commitment Percentage
as of the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (g)) $_____________
(j) Dollar Amount of Assignee's
Commitment Percentage
as of the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (f)) $_____________
4. This Assignment and Acceptance shall be effective only upon consent of
the Borrower and the Agent, if applicable, delivery to the Agent of this
Assignment and Acceptance together with the transfer fee payable pursuant to
Section 10.3(b) in connection herewith.
5. This Assignment and Acceptance may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Assignment and Acceptance to
produce or account for more than one such counterpart.
<PAGE>
<PAGE> EX-45
The terms set forth above
are hereby agreed to:
____________________, as Assignor
By:_________________________________
Title:______________________________
_____________________, as Assignee
By:_________________________________
Title:______________________________
CONSENTED TO:
NATIONSBANK, N.A.,
as Agent
By:___________________________________
Title:________________________________
AIRGAS, INC.
By:___________________________________
Title:________________________________
<PAGE>
<PAGE>
<PAGE> 24
<TABLE>
EXHIBIT 11
AIRGAS, INC.
EARNINGS PER SHARE CALCULATIONS
<CAPTION>
Three Months Ended
June 30,
1997 1996
____ ____
<S> <C> <C>
Adjustment of Weighted Average
Shares Outstanding:
Shares of common stock
outstanding
- - weighted 66,809,000 64,239,000
Net common stock equivalents 2,611,000 2,856,000
__________ __________
Adjusted shares outstanding 69,420,000 67,095,000
========== ==========
Net earnings $12,226,000 $11,150,000
========== ==========
Earnings Per Share $ .18 $ .17
========== ==========
</TABLE>
Earnings per share amounts were determined using the treasury stock method.
This method assumes the exercise of all dilutive outstanding options and
warrants and the use of the aggregate proceeds therefrom to acquire the
Company's outstanding common stock. Net earnings were divided by the weighted
average number of shares outstanding adjusted for the assumed exercise of the
options and warrants outstanding and repurchase of common stock to calculate
per share amounts.
<PAGE>
<PAGE> 25
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1998
<PERIOD-END> JUN-30-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 164,452
<ALLOWANCES> 4,629
<INVENTORY> 135,802
<CURRENT-ASSETS> 330,351
<PP&E> 803,743
<DEPRECIATION> 195,191
<TOTAL-ASSETS> 1,413,956
<CURRENT-LIABILITIES> 171,849
<BONDS> 722,164
<COMMON> 697
0
0
<OTHER-SE> 370,820
<TOTAL-LIABILITY-AND-EQUITY> 1,413,956
<SALES> 331,412
<TOTAL-REVENUES> 331,412
<CGS> 174,754
<TOTAL-COSTS> 174,754
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,108
<INCOME-PRETAX> 21,441
<INCOME-TAX> 9,215
<INCOME-CONTINUING> 12,226
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,226
<EPS-PRIMARY> .18
<EPS-DILUTED> .18
<PAGE>
</TABLE>
