<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: December 31, 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 January 30, 1998: 70,394,728 shares
<PAGE> 2
AIRGAS, INC.
FORM 10-Q
December 31, 1997
INDEX
PART I - FINANCIAL INFORMATION
______________________________
Consolidated Balance Sheets as of December 31, 1997
and March 31, 1997....................................................3
Consolidated Statements of Earnings
for the Three Months Ended December 31, 1997 and 1996.................5
Consolidated Statements of Earnings
for the Nine Months Ended December 31, 1997 and 1996..................6
Consolidated Statements of Cash Flows
for the Nine Months Ended December 31, 1997 and 1996..................7
Notes to Consolidated Financial Statements.................................8
Management's Discussion and Analysis of Financial
Condition and Results of Operations..................................14
PART II - OTHER INFORMATION
___________________________
Legal Proceedings.........................................................26
Exhibits and Reports on Form 8-K..........................................27
Signatures................................................................28
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements.
AIRGAS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands)
December 31, March 31,
1997 1997
(Unaudited)
_____________ ________
ASSETS
____________________________________________
Current Assets
Trade receivables, less allowances for
doubtful accounts of $5,780 at December 31,
1997 and $4,443 at March 31, 1997 $172,077 $151,053
Inventories 158,689 129,372
Prepaid expenses and other current assets 36,641 31,574
_________ _________
Total current assets 367,407 311,999
_________ _________
Plant and Equipment, at cost 901,032 736,083
Less accumulated depreciation and amortization (217,117) (183,922)
_________ _________
Plant and equipment, net 683,915 552,161
Other Non-current Assets, net 166,437 132,257
Goodwill, net of accumulated amortization of
$37,320 at December 31, 1997 and $29,503
at March 31, 1997 379,429 294,614
_________ _________
Total assets $1,597,188 $1,291,031
========= =========
See accompanying notes to consolidated financial statements.
<PAGE> 4
AIRGAS, INC.
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(In thousands, except per share amounts)
December 31, March 31,
1997 1997
(Unaudited)
___________ ________
LIABILITIES AND STOCKHOLDERS' EQUITY
____________________________________
Current Liabilities
Current portion of long-term debt $ 18,433 $ 25,158
Accounts payable, trade 69,403 74,329
Accrued expenses and other current liabilities 107,090 87,663
_________ _________
Total current liabilities 194,926 187,150
_________ _________
Long-Term Debt 808,808 629,931
Deferred Income Taxes 134,267 104,266
Other Non-current Liabilities 36,888 29,565
Minority Interest in Subsidiaries 4,299 3,462
Stockholders' Equity
Common stock $.01 par value, 200,000 shares
authorized, 71,238 and 68,762
shares issued at December 31, 1997 and
March 31, 1997, respectively 713 688
Capital in excess of par value 189,228 155,543
Retained earnings 242,353 196,626
Cumulative translation adjustment (752) (468)
Treasury stock, 931 and 800 common shares at
cost at December 31, 1997 and March 31, 1997 (13,542) (15,732)
_________ _________
Total stockholders' equity 418,000 336,657
_________ _________
Total liabilities and stockholders' equity $1,597,188 $1,291,031
========= =========
See accompanying notes to consolidated financial statements.
<PAGE> 5 AIRGAS, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(In thousands, except per share amounts)
Three Months Ended Three Months Ended
December 31, 1997 December 31, 1996
__________________ __________________
Net sales:
Distribution $272,958 $251,582
Direct Industrial 61,372 29,556
Manufacturing 33,480 16,065
_______ _______
Total net sales 367,810 297,203
_______ _______
Costs and expenses:
Cost of products sold
(excluding depreciation,
depletion and amortization)
Distribution 136,309 126,363
Direct Industrial 43,795 20,481
Manufacturing 15,847 9,449
Selling, distribution and
administrative expenses 118,939 94,991
Depreciation, depletion and
amortization 20,218 16,540
_______ _______
Total costs and expenses 335,108 267,824
_______ _______
Operating income:
Distribution 26,902 25,668
Direct Industrial 2,463 990
Manufacturing 3,337 2,721
_______ _______
32,702 29,379
Interest expense, net (13,456) (10,385)
Other income, net 442 213
Equity in earnings (loss) of
unconsolidated affiliates 943 (106)
Minority interest (219) (177)
_______ _______
Earnings before income taxes 20,412 18,924
Income tax expense 8,586 7,964
_______ _______
Net earnings $ 11,826 $ 10,960
======= =======
Net earnings per common and common
equivalent share
Basic $ .17 $ .16
======= =======
Diluted $ .17 $ .16
======= =======
Common and common equivalent shares
outstanding
Basic 69,580 67,350
======= =======
Diluted 71,500 70,200
======= =======
See accompanying notes to consolidated financial statements.
<PAGE> 6 AIRGAS, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(In thousands, except per share amounts)
Nine Months Ended Nine Months Ended
December 31, 1997 December 31, 1996
__________________ __________________
Net sales:
Distribution $ 812,395 $ 741,309
Direct Industrial 159,433 66,445
Manufacturing 87,750 42,259
_________ _______
Total net sales 1,059,578 850,013
_________ _______
Costs and expenses:
Cost of products sold
(excluding depreciation,
depletion and amortization)
Distribution 408,783 372,811
Direct Industrial 114,766 49,450
Manufacturing 41,537 25,521
Selling, distribution and
administrative expenses 338,481 270,722
Depreciation, depletion and amortization 56,809 45,801
Recovery of refrigerant losses (14,500) -
_________ _______
Total costs and expenses 945,876 764,305
_________ _______
Operating income:
Distribution 82,778 76,396
Direct Industrial 4,911 2,172
Manufacturing 11,513 7,140
Recovery of refrigerant losses 14,500 -
_______ _______
113,702 85,708
Interest expense, net (39,234) (28,419)
Other income, net 2,488 564
Equity in earnings of unconsolidated
affiliates 1,262 8
Minority interest (837) (558)
_______ _______
Earnings before income taxes 77,381 57,303
Income taxes 31,654 23,883
_______ _______
Net earnings $ 45,727 $ 33,420
======= =======
Net earnings per common and common
equivalent share
Basic $ .67 $ .51
======= =======
Diluted $ .65 $ .49
======= =======
Common and common equivalent shares
outstanding
Basic 68,240 65,400
======= =======
Diluted 70,500 68,200
======= =======
See accompanying notes to consolidated financial statements.
<PAGE> 7 AIRGAS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands) Nine Months Ended Nine Months Ended
December 31, 1997 December 31, 1996
__________________ __________________
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 45,727 $ 33,420
Adjustments to reconcile net
earnings to net cash provided
by operating activities:
Depreciation, depletion and amortization 56,809 45,801
Deferred income taxes 13,778 7,165
Equity in earnings of unconsolidated
affiliates (2,372) (988)
(Gain) loss on sale of plant and equipment (398) 214
Gain on divestiture of non-core business (1,452) -
Minority interest in earnings 837 558
Stock issued for employee benefit plan
expense 4,483 3,720
Changes in assets and liabilities,
excluding effects of business
acquisitions and divestiture:
Trade receivables, net 3,287 (854)
Inventories (12,693) (15,877)
Prepaid expenses and other
current assets (2,098) (29,567)
Accounts payable, trade (21,218) (5,805)
Accrued expenses and other current
liabilities 4,583 10,872
Other assets and liabilities, net (1,248) (10,196)
_______ _______
Net cash provided by operating activities 88,025 38,463
_______ _______
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (93,579) (48,080)
Proceeds from sale of plant and
equipment 2,056 1,585
Proceeds from divestiture of a business 4,000 -
Business acquisitions, net of cash acquired (101,210) (162,268)
Business acquisitions-hold back settlements (4,130) (6,828)
Investment in unconsolidated affiliates (16,086) (34,196)
Dividends from unconsolidated affiliates 1,984 1,055
Other, net 2,732 (2,085)
_______ _______
Net cash used by investing activities (204,233) (250,817)
_______ _______
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from borrowings 309,949 801,048
Repayment of debt (172,011) (588,333)
Financing costs (362) (1,793)
Repurchase of treasury stock (31,905) (316)
Exercise of options and warrants 3,217 2,846
Net overdraft 7,320 (1,098)
_______ _______
Net cash provided by financing activities 116,208 212,354
_______ _______
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> 8
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 December 31, 1997 and March 31, 1997;
the consolidated statements of earnings for the three and nine months ended
December 31, 1997 and 1996; and the consolidated statements of cash flows for
the nine months ended December 31, 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. Four businesses with
annual sales of approximately $40 million which were previously reported with
the Distribution segment are now reported with the Manufacturing segment.
(2) ACQUISITIONS
____________
From April 1, 1997 to December 31, 1997, the Company acquired seventeen
industrial gas distributors with aggregate annual sales of approximately $60
million, including two large regional distributors, Industrial Gas Products
("IGP") and JWS Technologies, Inc. The Company has also acquired two
industrial products distributors with combined annual sales of approximately
$106 million and four carbon dioxide distributors with combined annual sales
of approximately $74 million. The aggregate purchase price, which includes
amounts related to non-competition and confidentiality agreements, amounted to
approximately $249 million and includes real estate acquired of approximately
$14 million. Included in the aggregate purchase price is the issuance of
approximately 1.8 million treasury shares which were reissued in connection
with the acquisition of Carbonic Industries Corporation ("CIC"). In addition,
the Company issued approximately 1.2 million shares in connection with the
acquisition of IGP. 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 December 31, 1997, the Company acquired four industrial
gas distributors with annual sales of approximately $17 million, and one
carbon dioxide distributor with annual sales of approximately $5 million.
<PAGE> 9
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(3) NON-RECURRING GAINS
___________________
On December 23, 1996, the Company announced it was the victim of a
fraudulent breach of contract by a third-party supplier of refrigerant gas.
In connection with the fraud, the Company recorded a non-recurring pre-tax
charge during the fourth quarter of fiscal 1997 of $26.4 million
(approximately $17 million after-tax) for product losses and costs associated
with the Company's investigation into the fraud. The Distribution subsidiary
which reported the special charge in fiscal 1997 is reported with the
Manufacturing segment in fiscal 1998. On July 28, 1997, the Company reported
that it had negotiated a comprehensive settlement with all the defendants in
litigation brought by the Company to recover such losses. As a result of the
recovery, the Company recorded a non-recurring pre-tax gain during the second
quarter of $14.5 million (approximately $9.4 million after- tax). Aggregate
recoveries to date of $20.1 million represent cash received, offset by
additional costs and expenses incurred year-to-date, estimated future out-of-
pocket costs and other reserves which total $5.6 million. The Company
continues to pursue additional recoveries including proceeds from insurance
policies.
The Company also recorded a pre-tax gain, included in other income, in
the second quarter of approximately $1.5 million (approximately $980 after-
tax) related to the sale of a non-core business.
(4) EARNINGS PER SHARE
__________________
Basic earnings per share amounts were determined using the weighted
average number of shares outstanding. Diluted 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 ("EPS") and requires
the disclosure of Basic and Diluted EPS, effective for financial statements
issued for periods ending after December 15, 1997, including interim periods.
Effective with its third quarter ended December 31, 1997, the Company
implemented SFAS No. 128. For the Company, Diluted EPS is the same as
previously reported EPS amounts. All prior periods have been restated to
conform to the new rules. The difference between the Basic and Diluted common
equivalent shares outstanding is a result of common share equivalents related
to stock options.
<PAGE> 10
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(5) INVENTORIES
___________
Inventories consist of:
(In thousands)
December 31, March 31,
1997 1997
___________ ________
Finished goods $157,991 $127,765
Raw materials 2,194 2,979
_______ _______
160,185 130,744
Less reduction to LIFO cost ( 1,496) (1,372)
_______ _______
$158,689 $129,372
======= =======
(6) PLANT AND EQUIPMENT
___________________
The major classes of plant and equipment are as follows:
(In thousands)
December 31, March 31,
1997 1997
_____________ _________
Land and land improvements $ 25,775 $ 21,676
Building and leasehold improvements 85,480 66,659
Cylinders 397,788 365,253
Machinery and equipment, including
bulk tanks 310,536 241,275
Transportation equipment 46,882 39,264
Construction in progress 34,571 1,956
_______ _______
$901,032 $736,083
======= =======
<PAGE> 11
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(7) OTHER NON-CURRENT ASSETS
_______________________
Other non-current assets include:
(In thousands)
December 31, March 31,
1997 1997
_____________ _________
Investment in unconsolidated
affiliates $ 91,422 $ 64,992
Noncompete agreements and other
intangible assets, at cost, net
of accumulated amortization of
$69.8 million at December 31, 1997
and $59.8 million at March 31, 1997 64,744 54,794
Other assets 10,271 12,471
_______ _______
$166,437 $132,257
======= =======
(8) ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
______________________________________________
Accrued expenses and other current liabilities include:
(In thousands)
December 31, March 31,
1997 1997
_____________ _________
Cash overdraft $ 22,066 $ 14,746
Accrued interest 11,778 5,425
Insurance payable and related
reserves 7,293 5,224
Customer cylinder deposits 8,706 8,185
Other accrued expenses and current
liabilities 57,247 54,083
_______ _______
$107,090 $ 87,663
======= =======
<PAGE> 12
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
(9) STOCKHOLDERS' EQUITY
____________________
Changes in stockholders' equity were as follows:
(In thousands of shares)
Shares of Common Treasury
Stock $.01 Par Value Stock
____________________ _________
Balance--April 1, 1997 68,762 800
Common stock issuance (a) 2,476
Purchase of treasury stock -- 2,085
Reissuance of treasury stock (b) -- (1,954)
______ ______
Balance--December 31, 1997 71,238 931
====== ======
(In thousands of dollars)
Capital in Cumulative
Common Excess of Retained Translation Treasury
Stock Par Value Earnings Adjustment Stock
______ ___________ _________ ___________ ________
Balance--April 1, 1997 $688 $155,543 $196,626 $(468) $(15,732)
Net earnings -- -- 45,727 -- --
Common stock issuance (a) 25 13,081 -- -- --
Translation adjustments -- -- -- (284) --
Purchase of treasury
stock -- -- -- -- (30,592)
Reissuance of treasury
stock (b) -- 18,209 -- -- 32,782
Tax benefit from stock
option exercises -- 2,395 -- -- --
____ _______ _______ ____ ______
Balance--December 31,1997 $713 $189,228 $242,353 $(752) $(13,542)
==== ======= ======= ==== ======
(a) Related to the issuance of common stock for stock option exercises,
(704 thousand shares) acquisitions (1,440 thousand shares) and the
Company's Employee Stock Purchase Plan (332 thousand shares).
(b) Reissued in connection with the acquisitions of CIC and IGP.
(10) 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 National Welders by the Company
in connection with the Company's formation of a joint venture with the
majority shareholders of National Welders. Praxair is seeking compensatory
damages in excess of $100 million and punitive damages. The Company believes
that Praxair's claims are without merit and intends to defend vigorously
against such claims.
<PAGE> 13
AIRGAS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(Unaudited)
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.
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> 14
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 third quarter ended December 31,
1997 reflect continued growth compared with the third quarter last year. Net
sales increased 24% to $367.8 million from $297.2 million in the third quarter
last year. After-tax cash flow (net earnings plus depreciation, depletion,
amortization and deferred taxes) increased by 15% to a record $34.4 million,
compared to $29.7 million for the same quarter last year. Net earnings were
$11.8 million, or $.17 per share, compared to $11.0 million, or $.16 per share
a year ago.
Growth in the industrial gas distribution business continued with the
acquisition of seventeen industrial gas distributors from April 1, 1997 to
December 31, 1997, with annual sales of approximately $60 million, including
two large regional distributors, Industrial Gas Products and JWS Technologies,
Inc. Internal growth and expansion of existing product lines resulted in
same-store sales growth of 3% and same-store gross profit growth of 3.6%
compared to the same period in the prior year.
Since April 1, 1997, Airgas Direct Industrial ("ADI") has acquired two
strategic industrial products distributors: (1) Kendeco Industrial Supply, an
"engineered-systems integrator" for the cutting tools and abrasives market
with annual sales of approximately $16 million, and (2) Lyons Safety, Inc., a
national marketer of safety and personal protection systems with annual sales
of approximately $90 million. These two acquisitions strengthen ADI's
position through the expansion of product lines (safety products and
metalworking tools) in the largest geographical market for industrial
supplies, and through additional marketing and service capabilities to larger
customers. In addition, ADI realized same-store sales growth of 16%, and
same-store gross profit growth of approximately 19%, compared to the same
period in the prior year.
The Manufacturing segment's expansion into carbon dioxide continued,
with the acquisition of four carbon dioxide distributors since April 1, 1997,
with aggregate annual sales of approximately $74 million. With these
acquisitions, the Company's combined annual sales of carbon dioxide and dry
ice products total in excess of $100 million. These acquisitions, combined
with other businesses acquired in fiscal 1997, enhance the Company's ability
to supply carbon dioxide and dry ice products through its distribution
network.
<PAGE> 15
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The fraudulent breach of contract by a third-party supplier of
refrigerant gas was reported by the Company on December 23, 1996. In
connection with the fraud, the Company recorded a non-recurring pre-tax charge
during the fourth quarter of fiscal 1997 of $26.4 million (approximately $17
million after-tax) for product losses and costs associated with the Company's
investigation into the fraud. On July 28, 1997, the Company reported that it
had negotiated a comprehensive settlement with all defendants in the
litigation described above. As a result of the recovery, the Company recorded
a non-recurring gain in the second quarter of $14.5 million (approximately
$9.4 million after-tax). The Company continues to pursue additional
recoveries including proceeds from insurance policies.
<PAGE>
<PAGE> 16
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
RESULTS OF OPERATIONS: THREE MONTHS ENDED DECEMBER 31, 1997 COMPARED TO THE
THREE MONTHS ENDED DECEMBER 31, 1996
_____________________________________
Net sales increased 24% during the quarter ended December 31, 1997
compared to the same quarter in the prior year:
(in thousands)
1997 1996 Increase
____ ____ __________
Distribution $272,958 $251,582 $ 21,376
Direct Industrial 61,372 29,556 31,816
Manufacturing 33,480 16,065 17,415
_______ _______ _______
$367,810 $297,203 $ 70,607
======= ======= =======
For the quarter ended December 31, 1997, Distribution sales increased
approximately $13 million from the acquisition of 30 distributors since
October 1, 1996 and approximately $8 million from same-store sales. The
increase in same-store Distribution sales of 3% was more heavily weighted
towards lower margin hardgoods with internal growth primarily attributable to
higher sales volumes. The prior period included the benefit of approximately
$3 million in non-recurring large sales of refrigerants and sulfur
hexafluoride. Excluding these sales, the Company realized same-store sales
growth of approximately 4.3%. 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 product lines.
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. 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 Maintenance,
Repair and Operations ("MRO") hardgoods. The internal sales growth rate for
ADI was approximately 16% during the third quarter of fiscal 1998. In
addition, ADI has completed two acquisitions in fiscal 1998 to expand product
lines, geographic coverage and enhance marketing and service capabilities.
Sales to the Distribution segment totaled approximately $700 thousand for the
quarter ended December 31, 1997 compared to approximately $244 thousand in the
same quarter in the prior year, and are eliminated in consolidation.
<PAGE> 17
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The Manufacturing segment's sales increased $17.4 million during the
third quarter primarily as a result of recent acquisitions. Strong sales of
calcium carbide and nitrous oxide were offset slightly by lower shipments of
certain carbon products. Four businesses with annual sales of approximately
$40 million which were previously reported with the Distribution segment are
now reported with the Manufacturing segment. Sales to the Distribution
segment totaled approximately $3 million for the quarter ended December 31,
1997 compared to approximately $2.3 million in the same quarter in the prior
year, and are eliminated in consolidation.
The increase in Distribution gross profits of approximately $11.4
million over the same quarter in the prior year resulted from acquisitions
which contributed approximately $6.6 million and from same-store gross profit
growth of 3.6% or approximately $4.8 million. Same-store gross profit growth
resulted primarily from sales volume growth. On a same-store basis, the
Distribution gross margin increased 30 basis points compared to the same
period in the prior year primarily as a result of higher gas margins.
Hardgoods and rent margins also improved slightly compared to the prior
period. Hardgoods accounted for 51.1% of total sales compared to 49.9% in the
same period last year. 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 continued to help same-store gross
profit growth.
For the quarter, ADI's gross margin of 28.6% was down 210 basis points
compared to the same quarter last year as a result of fiscal 1998
acquisitions. Same-store gross profit growth of approximately $2.7 million
resulted primarily from sales volume growth.
For the quarter, the Manufacturing gross margin of 52.7% compared
favorably to the same quarter last year as a result of acquisitions completed
since October 1, 1997.
Selling, distribution, and administrative expenses ("SG&A") increased
$23.9 million compared to the same quarter last year primarily due to
acquisitions. SG&A expenses as a percentage of sales increased 30 basis
points to 32.3% compared to the same period in the prior quarter. As a
percentage of sales, increases in operating expenses were offset by ADI
acquisitions which have a lower expense-to-sales ratio than the Distribution
and Manufacturing segments. The Company anticipates additional operating
costs resulting from the consolidation of operating companies and from the
integration and standardization of information systems during fiscal years
1998, 1999 and 2000.
Depreciation, depletion and amortization increased $3.7 million compared
to the same period in the prior quarter due to acquisitions and from increased
capital expenditures.
<PAGE> 18
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Operating income increased 11% during the quarter ended December 31,
1997 compared to the same quarter in the prior year:
(in thousands)
1997 1996 Increase
____ ____ __________
Distribution $ 26,902 $25,668 $ 1,234
Direct Industrial 2,463 990 1,473
Manufacturing 3,337 2,721 616
______ ______ ______
$ 32,702 $29,379 $ 3,323
====== ====== ======
The Distribution segment's operating margin decreased 30 basis points to
9.9% compared with the same period in the prior year. The decrease resulted
primarily from slightly higher operating costs and expenses, recent new hub
acquisitions which have lower operating margins and lower same-store gross
profit growth. Subject to the effects of future acquisitions and the
Company's ability to increase sales and expand gross margins, the Company
continues to focus on improving its operating margin by implementing selective
price increases, reducing costs by leveraging its national purchasing power
and continuing to integrate acquisitions.
The operating income margin for ADI increased 70 basis points to 4%
compared with the same quarter last year. The increase resulted partially
from higher same-store gross profits. The Company believes that ADI's
operating income margin will continue to be impacted by expansion costs
related to information systems, infrastructure and facility enhancements. ADI
is establishing new distribution centers in Southern California and near
Atlanta, Georgia, which will consolidate other ADI warehouses. Non-recurring
moving costs associated with the new distribution centers will impact ADI's
performance during the fourth quarter by approximately one-half penny per
share. The Company expects the distribution center in California to be
operational by March 31, 1998 and the distribution center in Georgia to be
operational by the summer of 1998.
The Manufacturing segment's operating income increased $616 thousand
compared to the same quarter last year primarily as a result of acquisitions.
Operating margin decreased to 10% compared to 17% in the same period in the
prior year as a result of recent acquisitions which have a lower operating
income margin.
Interest expense, net, increased $3.1 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 October 1,
1996, interest costs on debt associated with the refrigerant fraud and the
repurchase of the Company's common stock.
Income tax expense represented 42.1% of pre-tax earnings in 1998 and
1997.
<PAGE> 19
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
RESULTS OF OPERATIONS: NINE MONTHS ENDED DECEMBER 31, 1997 COMPARED TO THE
NINE MONTHS ENDED DECEMBER 31, 1996
________________________________
Net sales increased 25% during the nine months ended December 31, 1997
compared to the prior year:
(in thousands)
1997 1996 Increase
____ ____ __________
Distribution $ 812,395 $ 741,309 $ 71,086
Direct Industrial 159,433 66,445 92,988
Manufacturing 87,750 42,259 45,491
_________ ________ ________
$1,059,578 $ 850,013 $ 209,565
========= ======== ========
For the nine months ended December 31, 1997, Distribution sales
increased approximately $39 million resulting from the acquisition of 37
distributors since April 1, 1996 and approximately $32 million from same-store
sales growth. The increase in same-store Distribution sales of approximately
4% was a result of sales volume growth in all three product groups: gases,
hardgoods and rent. 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 product lines. 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.
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 15% for
the nine months ended December 31, 1997. Sales to the Distribution segment
totaled approximately $1.6 million for the nine months ended December 31, 1997
compared to approximately $322 thousand in the prior year, and are eliminated
in consolidation.
The Manufacturing segment's sales increased approximately $45 million
during the nine months ended December 31, 1997, primarily as a result of
acquisitions. Strong sales of calcium carbide and nitrous oxide were offset
slightly by lower sales of certain carbon products. Four businesses with
annual sales of approximately $40 million which were previously reported with
the Distribution segment are now reported with the Manufacturing segment.
Sales to the Distribution segment totaled approximately $6.7 million for the
nine months ended December 31, 1997 compared to approximately $5.2 million in
the prior year, and are eliminated in consolidation.
<PAGE> 20
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The increase in Distribution gross profits of approximately $35 million
compared to the prior period resulted from acquisitions which contributed
approximately $17 million and from same-store gross profit growth of 4.6% or
approximately $18 million. Same-store gross profit growth resulted primarily
from sales volume growth with same-store margins increasing slightly. On a
same-store basis, the Distribution gross margin increased 20 basis points
compared to the same period in the prior year, primarily as a result of higher
gas margins. Hardgoods margins also improved slightly compared to the prior
period. Hardgoods accounted for 51.6% of total sales compared to 50.7% in the
prior period. The improvement in gas margins is attributable to non-recurring
lower margin refrigerant and sulfur hexafluoride sales in the prior period and
from selective price increases.
For the nine months ended December 31, 1997, ADI's gross margin of 28%
compared favorably to the prior year as a result of the September 1, 1996
acquisition of Rutland, which has a historical gross margin of approximately
40%. Same-store gross profit growth of approximately $6 million resulted
primarily from sales volume growth.
For the nine months ended December 31, 1997, the Manufacturing gross
margin of 52.7% compared favorably to the prior period as a result of
acquisitions.
Selling, distribution, and administrative expenses ("SG&A") increased
$67.8 million compared to the same period last year primarily due to
acquisitions. SG&A expenses as a percentage of sales of 31.9% were
essentially flat compared to the same period in the prior year. Subject to
future acquisitions, the Company believes that as it continues to integrate
acquisitions and complete start-up and expansion activities, SG&A expenses
relative to net sales should improve. The Company anticipates additional
operating costs resulting from the consolidation of operating companies and
from the integration and standardization of information systems during fiscal
years 1998, 1999 and 2000.
Depreciation, depletion and amortization increased $11 million compared
to the same period in the prior year due to acquisitions and from increased
capital expenditures.
<PAGE> 21
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Excluding a non-recurring gain of $14.5 million, operating income
increased 15.7% in 1997 compared to 1996:
(in thousands)
1997 1996 Increase
____ ____ __________
Distribution $82,778 $76,396 $ 6,382
Direct Industrial 4,911 2,172 2,739
Manufacturing 11,513 7,140 4,373
______ ______ ______
$99,202 $85,708 $13,494
====== ====== ======
The Distribution segment's operating margin was essentially flat at 10.2%
compared with last year. Subject to the effects of future acquisitions and
the Company's ability to increase sales and expand margins, the Company
continues to focus on improving its operating margin by implementing selective
price increases, reducing costs by leveraging its national purchasing power
and continuing to integrate acquisitions.
For the nine months ended December 31, 1997, the operating income margin
for ADI decreased 20 basis points to 3.1% compared with last year. The
Company believes that ADI's operating income margin will continue to be
impacted by expansion costs related to information systems, infrastructure and
facility enhancements. ADI is establishing new distribution centers in
Southern California and near Atlanta, Georgia which will consolidate other ADI
warehouses. Non-recurring moving costs associated with the new distribution
centers will impact ADI's performance during the fourth quarter by
approximately one-half penny per share. The Company expects the distribution
center in California to be operational by March 31, 1998 and the distribution
center in Georgia to be operational by the summer of 1998.
The Manufacturing segment's operating income increased $4.4 million
compared to last year primarily as a result of acquisitions. Operating margin
decreased to 13% compared to 17% in the prior year as a result of recent
acquisitions which have a lower operating income margin.
During the second quarter ended of fiscal 1998, the Company recorded a
non-recurring pre-tax gain of approximately $14.5 million (approximately $9.4
million after-tax). See Note 3 to the Company's consolidated financial
statements for further discussion of the non-recurring gain.
Interest expense, net, increased $10.8 million compared to the prior
year primarily as a result of the increase in average outstanding debt
associated with the acquisition of distribution businesses acquired since
April 1, 1996, the joint venture investment in National Welders, interest
costs and 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, excluding non-recurring gains, represented 42.5% of
pre-tax earnings in the nine months ended December 31, 1997 compared to 41.7%
in the prior year. The increase in the effective income tax rate was primarily
a result of non-deductible goodwill from recent acquisitions.
<PAGE> 22
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
LIQUIDITY AND CAPITAL RESOURCES
_______________________________
The Company has financed its operations, capital expenditures, stock
repurchases, and acquisitions with borrowings, the issuance of common stock
and funds provided by operating activities.
Cash flows from operating activities totaled $88 million ($73.5 million
excluding the non-recurring gain from partial recovery of refrigerant losses)
for the nine months ended December 31, 1997. Depreciation, depletion and
amortization represent $56.8 million of cash flows from operating activities.
Deferred income taxes of $13.8 million resulted from temporary differences.
Cash flows from working capital components decreased $28.1 million as a result
of a decrease in accounts payable due to the timing of invoice payments, an
increase in inventory levels to meet increased sales volumes, offset by an
increase in accounts receivable associated with higher same-store sales. Days
sales outstanding improved slightly compared to the March 31, 1997 levels and
distribution hardgoods days' supply of inventory has improved approximately 8%
since March 31, 1997.
Cash used by investing activities totaled $204.2 million which was
primarily comprised of $93.6 million for capital expenditures, and $121.4
million related to acquisitions and investments in unconsolidated affiliates.
The Company's use of cash for capital expenditures was attributable to
the construction of two air separation plants, the continued assimilation of
acquisitions which require expenditures for combining cylinder fill plants,
the improvement of truck fleets, the purchase of cylinders in order to return
cylinders rented from third parties and the purchase of cylinders and bulk
tanks necessary to facilitate gas sales growth. Through December 31, 1997,
the Company incurred capital expenditures of approximately $30.1 million
related to air separation plant construction and expects additional capital
expenditures of approximately $5 million to complete the construction of the
plants. Both plants became operational in January 1998. For the nine months
ended December 31, 1997, approximately $29 million of capital expenditures
were for the purchase of cylinders, bulk tanks and machinery and equipment.
The Company estimates that its Distribution maintenance capital expenditures
are approximately 1 to 2% of net sales. The Company considers the replacement
of existing capital assets to be maintenance capital expenditures.
Financing activities provided cash of $116.2 million with total debt
outstanding increasing by $172 million from March 31, 1997. Funds from
financing activities were used primarily for acquisitions, capital
expenditures and the repurchase of Airgas common stock.
Effective December 5, 1997, the Company entered into an amended credit
facility which replaced and combined four previous bank credit facilities.
This amended facility consists of a US$725 million and a C$100 million
unsecured revolving credit facility with various commercial banks which
matures on December 5, 2002. At December 31, 1997, the Company had
approximately US$438 million in borrowings and approximately C$56 million
(US$39 million) borrowings under the facility and approximately US$99 million
committed under letters of credit, resulting in aggregate unused availability
under the facility of approximately US$221 million. There were no other
significant changes in the terms, conditions or covenants of the amended
facility compared to the previous credit facilities.
<PAGE> 23
Item 2. AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
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.
At December 31, 1997, the effective interest rate related to outstanding
borrowings under all credit lines was approximately 6.38%. 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
25 interest rate swap agreements during the period from June 1992
through December 31, 1997. The swap agreements are with major financial
institutions and aggregate $403 million in notional principal amount at
December 31, 1997. Approximately $253 million of the notional principal
amount of the swap agreements require fixed interest payments based on an
average effective rate of 6.63% for remaining periods ranging between 1 and 8
years. Six swap agreements require floating rates ($149.5 million notional
amount at 5.72% at December 31, 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 December 31, 1997, approximately
$15.2 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 December 31, 1997, the Company
acquired four industrial gas distributors with annual sales of approximately
$17 million, and one carbon dioxide distributor with annual sales of
approximately $5 million.
As the Company integrates and standardizes certain information systems
during fiscal 1998, 1999 and 2000, the Company expects to enter into
obligations and purchase certain capital equipment aggregating an estimated
$18 to $24 million.
In October 1997, the Airgas Board of Directors approved the repurchase
of up to an additional 2,000,000 shares of common stock from time-to-time to
offset share issuances for stock options, the Employee Stock Purchase Plan,
and acquisitions. Together with previously granted authority, this increases
the total repurchase program to a potential 4.6 million shares. Through the
nine months ended December 31, 1997, the Company has repurchased 2,885,200
shares under previous repurchase programs. Approximately 3 million shares
were reissued in connection with the acquisition of Carbonic Industries
Corporation and Industrial Gas Products.
<PAGE> 24
Item 2.
AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
The Company has initiated a project to integrate and standardize its
financial general ledger information systems prior to the Year 2000. As a
result of this information system standardization, the Company expects these
systems to be Year 2000 compliant. The Company is also conducting a
comprehensive review of its other information and operations systems to
identify the systems that may not function properly in the Year 2000 and
thereafter, and is developing an implementation plan to take appropriate
corrective action if necessary. The Company has not yet assessed its Year
2000 compliance expense. The Company currently believes that, with
modifications to existing software and converting to new software, the Year
2000 problem will not pose significant operational problems for the Company's
information and operations systems so modified and converted. However, if
such modifications and conversions are not completed timely, the Year 2000
problem may have a material impact on the operations of the Company.
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.
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 had
no material impact on earnings, financial condition or liquidity of the
Company.
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. Effective with its third quarter ended
December 31, 1997, the Company implemented SFAS No. 128. For the Company,
Diluted earnings per share is the same as previously reported earnings per
share amounts. All prior periods have been restated to conform to the new
rules.
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
<PAGE> 25
Item 2. AIRGAS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
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; the
ability to develop new products and product-line extensions; continued
availability of financing to provide additional sources of funding for future
acquisitions; capital expenditure requirements and foreign investments;
expenses associated with the Company's new ADI Division; 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 manufacturers and suppliers of
hardgoods; uncertainties regarding accidents or litigation which may arise in
the ordinary course of business; the Company's ability to pursue claims and
recoveries in connection with the fraudulent breach of contract related to
refrigerant R-12 purchases; the expenses associated with Year 2000 compliance;
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. The Company does
not undertake to update any forward-looking statement made herein or that may
be made from time to time by or on behalf of the Company.
<PAGE>
<PAGE> 26
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 Supply Company, Inc. ("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. Thereafter, Praxair filed a motion for
judgement on the pleadings. On July 31, 1997, the Court entered an order
denying that motion.
The fraudulent breach of contract by a third-party supplier of
refrigerant gas was reported by the Company on December 23, 1996. The
Company continues to pursue additional recoveries including proceeds
from insurance policies.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
________
4.1. Ninth Amended and Restated Credit Agreement dated as of
December 5, 1997 among Airgas, Inc., Airgas Canada Inc., Red-D-Arc
Limited and Airgas Ontario Inc., Nationsbank, N.A. as U.S. Agent
and Canadian Imperial Bank of Commerce, as Canadian Agent.
11. Calculation of earnings per share.
27. Financial Data schedule
<PAGE> 27
b. Reports on Form 8-K
___________________
On October 9, 1997, the Company filed a Form 8-K pursuant to Item 5,
commenting on its earnings estimates for the second quarter ended
September 30, 1997.
On October 24, 1997, the Company filed a Form 8-K pursuant to Item 5,
reporting its earnings for the second quarter ended September 30, 1997.
<PAGE>
<PAGE> 28
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.
February 12, 1998 /s/ Thomas C. Deas, Jr.
_________________ _______________________
Date Thomas C. Deas, Jr.
Vice President &
Chief Financial Officer
<PAGE>
<PAGE>
<PAGE> EX-1
[EXECUTION COPY]
NINTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 5, 1997
among
AIRGAS, INC.,
AIRGAS CANADA INC., RED-D-ARC LIMITED
and AIRGAS ONTARIO INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
NATIONSBANK, N.A.,
as U.S. Agent
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Agent
<PAGE>
<PAGE> EX-2
TABLE OF CONTENTS
SECTION 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Computation of Time Periods. . . . . . . . . . . . . . . . . .25
1.3 Accounting Terms.. . . . . . . . . . . . . . . . . . . . . . .25
SECTION 2 U.S. DOLLAR CREDIT FACILITIES. . . . . . . . . . . . . . . .26
2.1 Revolving U.S. Loans.. . . . . . . . . . . . . . . . . . . . .26
2.2 Competitive U.S. Loan Subfacility. . . . . . . . . . . . . . .28
2.3 U.S. Letter of Credit Subfacility. . . . . . . . . . . . . . .30
2.4 U.S. Swingline Loan Subfacility. . . . . . . . . . . . . . . .35
2.5 364-Day Revolving Loans. . . . . . . . . . . . . . . . . . . .37
SECTION 3 CANADIAN DOLLAR CREDIT FACILITIES. . . . . . . . . . . . . .39
3.1 Revolving Canadian Loans.. . . . . . . . . . . . . . . . . . .39
3.2 Canadian Swingline Loan Subfacility. . . . . . . . . . . . . .41
3.3 Canadian Letter of Credit Subfacility. . . . . . . . . . . . .43
3.4 Bankers' Acceptances.. . . . . . . . . . . . . . . . . . . . .47
3.5 Guaranty of Canadian Borrowers' Obligations. . . . . . . . . .49
3.6 Reset Mechanism. . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 4 OTHER PROVISIONS RELATING TO CREDIT FACILITIES . . . . . . .52
4.1 Default Rate.. . . . . . . . . . . . . . . . . . . . . . . . .52
4.2 Extension and Conversion.. . . . . . . . . . . . . . . . . . .52
4.3 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . .53
4.4 Termination and Reduction of Commitments; Increase of Commitments.54
4.5 Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
4.6 Capital Adequacy.. . . . . . . . . . . . . . . . . . . . . . .60
4.7 Inability To Determine Interest Rate.. . . . . . . . . . . . .60
4.8 Illegality.. . . . . . . . . . . . . . . . . . . . . . . . . .61
4.9 Requirements of Law. . . . . . . . . . . . . . . . . . . . . .61
4.10 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . .63
4.11 Indemnity.. . . . . . . . . . . . . . . . . . . . . . . . . .65
4.12 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . .65
4.13 Sharing of Payments.. . . . . . . . . . . . . . . . . . . . .66
4.14 Payments, Computations, Etc.. . . . . . . . . . . . . . . . .67
SECTION 5 CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . .68
5.1 Closing Conditions.. . . . . . . . . . . . . . . . . . . . . .68
5.2 Conditions to all Extensions of Credit.. . . . . . . . . . . .69
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . .71
6.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . .71
6.2 No Change. . . . . . . . . . . . . . . . . . . . . . . . . . .71
6.3 Organization; Existence; Compliance with Law.. . . . . . . . .72
6.4 Power; Authorization; Enforceable Obligations. . . . . . . . .72
6.5 No Legal Bar.. . . . . . . . . . . . . . . . . . . . . . . . .72
6.6 No Material Litigation.. . . . . . . . . . . . . . . . . . . .73
6.7 No Default.. . . . . . . . . . . . . . . . . . . . . . . . . .73
6.8 Ownership of Property; Liens.. . . . . . . . . . . . . . . . .73
6.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . .73
6.10 No Burdensome Restrictions. . . . . . . . . . . . . . . . . .73
6.11 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . .74
6.12 ERISA.. . . . . . . . . . . . . . . . . . . . . . . . . . . .74
6.13 Governmental Regulations, Etc.. . . . . . . . . . . . . . . .75
6.14 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . .76
6.15 Purpose of Loans and Letters of Credit. . . . . . . . . . . .76
6.16 Environmental Matters.. . . . . . . . . . . . . . . . . . . .76
SECTION 7 AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . .77
7.1 Information Covenants. . . . . . . . . . . . . . . . . . . . .78
7.2 Preservation of Existence and Franchises.. . . . . . . . . . .80
7.3 Books and Records. . . . . . . . . . . . . . . . . . . . . . .80
7.4 Compliance with Law. . . . . . . . . . . . . . . . . . . . . .80
7.5 Payment of Taxes and Other Indebtedness. . . . . . . . . . . .80
7.6 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . .80
7.7 Maintenance of Property. . . . . . . . . . . . . . . . . . . .81
<PAGE> EX-3
7.8 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . .81
7.9 Audits/Inspections.. . . . . . . . . . . . . . . . . . . . . .81
7.10 Financial Covenants.. . . . . . . . . . . . . . . . . . . . .81
7.11 Maintenance of Designation Rights - National Welders Board of
Directors.82
SECTION 8 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . .82
8.1 Indebtedness.. . . . . . . . . . . . . . . . . . . . . . . . .82
8.2 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
8.3 Nature of Business.. . . . . . . . . . . . . . . . . . . . . .83
8.4 Consolidation, Merger, Amalgamation or Sale. . . . . . . . . .83
8.5 Restricted Payments. . . . . . . . . . . . . . . . . . . . . .84
8.6 Prepayments of Indebtedness, Etc.. . . . . . . . . . . . . . .84
8.7 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . .84
8.8 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions, Etc.84
8.9 Issuance and Sale of Subsidiary Stock. . . . . . . . . . . . .85
8.10 No Further Negative Pledges.. . . . . . . . . . . . . . . . .85
SECTION 9 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . .85
9.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . .85
9.2 Acceleration; Remedies.. . . . . . . . . . . . . . . . . . . .88
SECTION 10 AGENCY PROVISIONS . . . . . . . . . . . . . . . . . . . . .89
10.1 Appointment.. . . . . . . . . . . . . . . . . . . . . . . . .89
10.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . .90
10.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . .90
10.4 Reliance on Communications. . . . . . . . . . . . . . . . . .91
10.5 Notice of Default.. . . . . . . . . . . . . . . . . . . . . .91
10.6 Non-Reliance on Agent and Other Lenders.. . . . . . . . . . .91
10.7 Indemnification.. . . . . . . . . . . . . . . . . . . . . . .92
10.8 Agents in their Individual Capacity.. . . . . . . . . . . . .93
10.9 Successor Agents. . . . . . . . . . . . . . . . . . . . . . .93
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .94
11.1 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . .94
11.2 Right of Set-Off. . . . . . . . . . . . . . . . . . . . . . .96
11.3 Benefit of Agreement. . . . . . . . . . . . . . . . . . . . .96
11.4 No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . .98
11.5 Payment of Expenses, Etc. . . . . . . . . . . . . . . . . . .99
11.6 Amendments, Waivers and Consents. . . . . . . . . . . . . . .99
11.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 100
11.8 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.9 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.10 Governing Law; Submission to Jurisdiction; Venue.. . . . . 101
11.11 Severability.. . . . . . . . . . . . . . . . . . . . . . . 103
11.12 Entirety.. . . . . . . . . . . . . . . . . . . . . . . . . 103
11.13 Binding Effect; Termination of Existing Credit Agreement and
$125,000,000
Credit Facility; Termination of This Credit Agreement. . . . . . 103
11.14 Confidentiality. . . . . . . . . . . . . . . . . . . . . . 104
11.15 Conflict.. . . . . . . . . . . . . . . . . . . . . . . . . 104
<PAGE>
<PAGE> EX-4
SCHEDULES
Schedule 1.1A Applicable Percentages
Schedule 1.1B Existing Canadian Letters of Credit
Schedule 1.1C Existing U.S. Letters of Credit
Schedule 1.1D National Welders Liens
Schedule 1.1E Liens
Schedule 2.1(a) Lenders
Schedule 2.1(b)(i)Form of Notice of U.S. Borrowing
Schedule 2.1(e) Form of Revolving U.S. Note
Schedule 2.2(i) Form of Competitive U.S. Note
Schedule 2.4(d) Form of U.S. Swingline Note
Schedule 2.5(e) Form of 364-Day Revolving Note
Schedule 3.1(b)(i)Form of Notice of Canadian Borrowing
Schedule 3.1(e) Form of Revolving Canadian Note
Schedule 4.2 Form of Notice of Extension/Conversion
Schedule 4.4 Form of New Commitment Agreement
Schedule 5.1(c) Form of Legal Opinion of McCausland, Keen & Buckman
Schedule 5.1(d) Form of Legal Opinion of Blaney, McMurtry, Stapells, Friedman
Schedule 5.1(e) Form of Legal Opinion Moore & Van Allen, PLLC
Schedule 6.6 Litigation
Schedule 6.14 Subsidiaries
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 11.3 Form of Assignment and Acceptance
<PAGE>
<PAGE> EX-5
NINTH AMENDED AND RESTATED
CREDIT AGREEMENT
THIS NINTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
December 5, 1997 (the "Credit Agreement"), is by and among AIRGAS, INC., a
Delaware corporation ("Airgas" and also a "Credit Party"), AIRGAS CANADA INC.,
RED-D-ARC LIMITED and AIRGAS ONTARIO INC. (each a "Canadian Borrower" and
together with Airgas, the "Credit Parties"), the several lenders identified on
the signature pages hereto as U.S. Lenders and such other lenders as may from
time to time become a party hereto as U.S. Lenders (the "U.S. Lenders"), the
several lenders identified on the signature pages hereto as Canadian Lenders
and such other lenders as may from time to time become a party hereto as
Canadian Lenders (the "Canadian Lenders"), NATIONSBANK, N.A., as
administrative agent for the Lenders (in such capacity, the "U.S. Agent") and
CANADIAN IMPERIAL BANK OF COMMERCE, as Canadian administrative agent for the
Lenders (in such capacity, the "Canadian Agent").
W I T N E S S E T H
WHEREAS, the Credit Parties have requested that (i) the U.S. Lenders
provide Airgas with a U.S.$100,000,000 short-term credit facility for the
short-term general corporate needs of Airgas and its Subsidiaries, (ii) the
U.S. Lenders provide Airgas with a separate U.S.$625,000,000 credit facility
for additional general corporate needs of Airgas and its Subsidiaries and
(iii) the Canadian Lenders provide the Canadian Borrowers with a C$100,000,000
credit facility for the general corporate needs of the Canadian Borrowers;
WHEREAS, the U.S. Lenders and the Canadian Lenders have agreed to make
the requested credit facility available to the Credit Parties on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"364-Day Revolving Commitment" means, with respect to each U.S.
Lender, the commitment of such U.S. Lender in an aggregate principal amount at
any time outstanding of up to such U.S. Lender's U.S. Commitment Percentage of
the 364-Day Revolving Committed Amount, to make 364-Day Revolving Loans in
accordance with the provisions of Section 2.5(a).
"364-Day Revolving Committed Amount" shall have the meaning
assigned to such term in Section 2.5(a).
"364-Day Revolving Loans" shall have the meaning assigned to such
term in Section 2.5(a).
<PAGE> EX-6
"364-Day Revolving Note" means a promissory note of Airgas in favor
of a U.S. Lender delivered pursuant to Section 2.5(e) and evidencing the
364-Day Revolving Loans of such U.S. Lender, as such promissory note may be
amended, modified, restated or replaced from time to time.
"Acceptance Fee" means an amount equal to the product of (a) the
Applicable Percentage for Bankers' Acceptances as of the date of acceptance;
(b) the aggregate Face Amount of Bankers' Acceptances accepted by a Canadian
Lender on the date of acceptance of the requested Bankers' Acceptances; and
(c) a fraction (i) the numerator of which is the term to maturity in days of
such Bankers' Acceptances, and (ii) the denominator of which is 365 days.
"Additional Commitment" means, with respect to any Lender which
executes a New Commitment Agreement in accordance with Section 4.4(c), the
commitment of such Lender in an aggregate principal amount up to the amount
specified in such New Commitment Agreement either (i) to (A) make Revolving
U.S. Loans in accordance with the provisions of Section 2.1(a), (B) make
364-Day Revolving Loans in accordance with the provisions of Section 2.5(a),
as applicable, (C) purchase participation interests in U.S. Letters of Credit
in accordance with the provisions of Section 2.3(c) and (D) to purchase
participation interests in the U.S. Swingline Loans in accordance with the
provisions of Section 2.4(b)(iii) or (ii) to (A) to make Revolving Canadian
Loans in accordance with the provisions of Section 3.1(a), (B) purchase
participation interests in Canadian Letters of Credit in accordance with the
provisions of Section 3.3(c) and (C) to accept Bankers' Acceptances in
accordance with the provisions of Section 3.4.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly owning
or holding five percent (5%) or more of the equity interest in such Person.
For purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agents" means the U.S. Agent and the Canadian Agent.
"Airgas" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Eurodollar Loan, the applicable
rate of the Acceptance Fee for any day for purposes of Section 3.4(a), the
applicable rate of the Unused Revolving U.S. Commitment Fee for any day for
purposes of Section 4.5(a)(i), the applicable rate of the Unused 364-Day
Revolving Commitment Fee for any day for purposes of Section 4.5(a)(ii), the
applicable rate of the Unused Revolving Canadian Commitment Fee for any day
for purposes of Section 4.5(a)(iii), the applicable rate of the Standby U.S.
Letter of Credit Fee for any day for purposes of Section 4.5(b)(i), the
applicable rate of the Trade U.S. Letter of Credit Fee for any day for
purposes of Section 4.5(b)(ii), the applicable rate of the Standby Canadian
Letter of Credit Fee for any day for purposes of Section 4.5(c)(i), the
applicable rate of the Trade Canadian Letter of Credit Fee for any day for
the purposes of Section 4.5(c)(ii), the appropriate applicable percentage, as
shown on Schedule 1.1A, corresponding to the higher of the long term credit
ratings of Airgas by S&P and Moody's in effect as of such date; provided,
however, in the event that the long term credit ratings of Airgas by S&P and
Moody's for any day differ by more than one Pricing Level, the Applicable
Percentage for such day shall be the appropriate applicable percentage
<PAGE> EX-7
corresponding to the Pricing Level which is one Pricing Level higher than the
Pricing Level corresponding to the lower of the long term credit ratings of
Airgas by S&P and Moody's in effect as of such date. The initial Applicable
Percentages shall be based on Pricing Level IV (as shown on Schedule 1.1A).
"BA Outstandings" means, at any time, the sum of the Face Amount of
all Bankers' Acceptances outstanding at such time.
"Bankers' Acceptance" means a draft (a) drawn by a Canadian
Borrower under the Revolving Canadian Commitment for acceptance by a Canadian
Lender, (b) denominated in Canadian Dollars and (c) issued and payable only in
Canada.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or ordering the winding up or liquidation of its affairs; or (ii) a
court or governmental agency having jurisdiction in the premises shall enter a
decree or order appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property and such decree or order shall remain
undismissed for a period of sixty (60) consecutive days; or (iii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for
the winding up or liquidation of its affairs, and such involuntary case or
other case, proceeding or other action shall remain undismissed, undischarged
or unbonded for a period of sixty (60) consecutive days; or (iv) such Person
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or make any general assignment for
the benefit of creditors; or (v) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they become due.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina are authorized or
required by law to close, except that, (a) when used in connection with a
Eurodollar Loan, such day shall also be a day on which dealings between banks
are carried on in U.S. dollar deposits in London, England, Charlotte, North
Carolina and New York, New York and (b) when used in connection with a Loan
made by any of the Canadian Lenders, the term Business Day shall not include
any day on which banking institutions in Toronto, Ontario are authorized
by law or other governmental actions to close.
"Calculation Date" means the last day of each fiscal quarter of
Airgas.
"Canadian Agent" shall have the meaning assigned to such term in
the heading hereof, together with any successors or assigns.
<PAGE> EX-8
"Canadian Agent's Fee Letter" means that certain letter agreement,
dated as of the Closing Date, between the Canadian Agent and Airgas, as
amended, modified, restated or supplemented from time to time.
"Canadian Agent's Fees" shall have the meaning assigned to such
term in Section 4.5(d)(ii).
"Canadian Base Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the higher of (i) the fluctuating rate of interest per annum equal to
the rate of interest established and publicly announced by CIBC, from time to
time, as its prime rate for Canadian Dollar commercial loans made in Canada
(with each change in such prime rate being effective on the date such change
is publicly announced as effective (it being understood and agreed that the
such prime rate is a reference rate used by CIBC in determining interest rates
on certain loans and is not intended to be the lowest rate of interest charged
on any extension of credit by CIBC to any debtor)) and (ii) CDOR for such day
plus the Applicable Percentage for Bankers' Acceptances.
"Canadian Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Canadian Base Rate.
"Canadian Borrowers" shall have the meaning assigned to such term
in the heading hereof, together with any successors or assigns.
"Canadian Borrowers' Obligations" means without duplication, all of
the obligations of the Canadian Borrowers to the Canadian Lenders and the
Agents, whenever arising, under this Credit Agreement, the Notes or any of the
other Credit Documents.
"Canadian Commitment Percentage" means, for any Canadian Lender,
the percentage identified as its Canadian Commitment Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any increase in
the Revolving Canadian Committed Amount pursuant to Section 4.4(c) or any
assignment made in accordance with the provisions of Section 11.3; provided,
however, at any time that any Canadian Swingline Loan is outstanding (except
to the extent that the Canadian Swingline Lender has demanded repayment of a
particular Canadian Swingline Loan by way of a Revolving Canadian Loan as
provided in Section 3.2(b)), (i) the Canadian Commitment Percentage of the
Canadian Swingline Lender shall be reduced by an amount equal to the
percentage amount of the Revolving Canadian Committed Amount then comprised of
outstanding Canadian Swingline Loans and (ii) the Canadian Commitment
Percentage of each other Canadian Lender shall be increased by an amount equal
to the product of (A) the amount determined pursuant to clause (i) above
multiplied by (B) the fraction determined from the ratio that the Canadian
Commitment Percentage of such Canadian Lender bears to the total Canadian
Commitment Percentages of all the Canadian Lenders other than the Canadian
Swingline Lender.
"Canadian Dollar Equivalent" means, on any date of computation,
with respect to an amount denominated in U.S. Dollars, the amount of Canadian
Dollars using an exchange rate equal to the Bank of Canada noon rate.
"Canadian Dollars" means and "C$" means dollars in lawful currency
of Canada.
"Canadian Issuing Lender" means CIBC.
"Canadian Issuing Lender Fees" shall have the meaning assigned to
such term in Section 4.5(c)(iii).
<PAGE> EX-9
"Canadian Lenders" means (i) those Lenders identified as Canadian
Lenders on the signature pages attached hereto and (ii) any Person which
becomes a Canadian Lender by executing a New Commitment Agreement pursuant to
Section 4.4(c), together with their successors and assigns.
"Canadian Letter of Credit" means (i) any letter of credit issued
by the Canadian Issuing Lender for the account of a Canadian Borrower in
accordance with the terms of Section 3.3 and (ii) any Existing Canadian Letter
of Credit.
"Canadian LOC Commitment" means the commitment of the Canadian
Issuing Lender to issue Canadian Letters of Credit in an aggregate face amount
at any time outstanding (together with the amounts of any unreimbursed
drawings thereon) of up to the Canadian LOC Committed Amount.
"Canadian LOC Committed Amount" shall have the meaning assigned to
such term in Section 3.3.
"Canadian LOC Documents" means, with respect to any Canadian Letter
of Credit, such Canadian Letter of Credit, any amendments thereto, any
documents delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Canadian Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or at
risk or (ii) any collateral security for such obligations.
"Canadian LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under Canadian Letters of Credit then outstanding, assuming compliance
with all requirements for drawings referred to in such Canadian Letters of
Credit plus (ii) the aggregate amount of all drawings under Canadian Letters
of Credit honored by the Canadian Issuing Lender but not theretofore
reimbursed.
"Canadian Subsidiary" means a direct or indirect Subsidiary of
Airgas which is organized and existing under the laws of Canada or any
province or other political subdivision thereof.
"Canadian Swingline Commitment" means the commitment of the
Canadian Swingline Lender to make Canadian Swingline Loans in an aggregate
principal amount at any time outstanding of up to the Canadian Swingline
Committed Amount.
"Canadian Swingline Committed Amount" shall have the meaning
assigned to such term in Section 3.2(a).
"Canadian Swingline Lender" means CIBC.
"Canadian Swingline Loan" means a loan made pursuant to and defined
in Section 3.2(a).
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CDOR" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) quoted by CIBC as the
rate for its 30 day Canadian Dollar bankers' acceptances appearing on the
Reuters Screen CDOR page as of 10:00 A.M. (Toronto, Canada time) on such day,
provided that if such rate does not appear on the Reuters Screen CDOR page at
<PAGE> EX-10
such time on such day, the rate for such day, will be the average of all of
the bankers' acceptances discount rates posted on the Reuters Screen CDOR page
for 30 day Canadian Dollar bankers' acceptances at such time on such day with
respect to the Schedule I chartered banks of Canada.
"CIBC" means Canadian Imperial Bank of Commerce and its successors.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
"Commitment" means (i) with respect to each U.S. Lender, (a) the
Revolving U.S. Commitment of such Lender and (b) the 364-Day Revolving
Commitment of such Lender, (ii) with respect to each Canadian Lender, the
Revolving Canadian Commitment of such Lender, (iii) with respect to the U.S.
Swingline Lender, the U.S. Swingline Commitment, (iv) with respect to the
Canadian Swingline Lender, the Canadian Swingline Commitment, (v) with respect
to the U.S. Issuing Lender, the U.S. LOC Commitment and (vi) with respect to
the Canadian Issuing Lender, the Canadian LOC Commitment.
"Competitive U.S. Bid" means an offer by a U.S. Lender to make a
Competitive U.S. Loan pursuant to the terms of Section 2.2.
"Competitive U.S. Bid Rate" means, as to any Competitive U.S. Bid
made by a U.S. Lender in accordance with the provisions of Section 2.2, the
fixed rate of interest offered by the Lender making the Competitive U.S. Bid.
"Competitive U.S. Loan" means a loan made by a U.S. Lender in its
discretion
pursuant to the provisions of Section 2.2.
"Competitive U.S. Note" means a promissory note of Airgas in favor
of a U.S. Lender delivered pursuant to Section 2.2(f) and evidencing the
Competitive U.S. Loans, if any, of such U.S. Lender, as such promissory note
may be amended, modified, restated or replaced from time to time.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted
for (A) Consolidated Interest Expense, (B) total federal, state, local and
foreign income, value added and similar taxes and (C) depreciation and
amortization expense, all as determined in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, as of any
Calculation Date, the ratio of (i) Consolidated EBITDA for the four-quarter
period ended as of such Calculation Date to (ii) Consolidated Interest Expense
for the four-quarter period ended as of such Calculation Date.
"Consolidated Funded Indebtedness Coverage Ratio" means, as of any
Calculation Date, the ratio of (i) total Funded Indebtedness of the
Consolidated Parties on a consolidated basis as of such Calculation Date to
(ii) Consolidated EBITDA for the four-quarter period ended as of such
Calculation Date.
"Consolidated Interest Expense" means, for any period, (i) interest
expense (including the amortization of debt discount and premium and the
interest component under Capital Leases) of the Consolidated Parties on a
<PAGE> EX-11
consolidated basis, plus (ii) on and after such time, if ever, as National
Welders is required to be consolidated with Airgas in accordance with GAAP and
to the extent not included in the amount determined pursuant to clause (i)
above, interest expense (including the amortization of debt discount and
premium, the interest component under Capital Leases) of National Welders,
plus (iii) to the extent not included in the amount determined pursuant to
clause (i) above, interest expense (including the amortization of debt
discount and premium, the interest component under Capital Leases) of any
Person which became a direct or indirect Subsidiary of Airgas as the result of
a Material Acquisition during such period, all as determined in accordance
with GAAP.
"Consolidated Long Term Debt" means, at any time, all items which,
in accordance with GAAP, would be classified as long term debt on a
consolidated balance sheet of the Consolidated Parties.
"Consolidated Net Income" means, for any period, the sum of (i) the
sum, without duplication, of net income (excluding extraordinary items) after
taxes for such period of the Consolidated Parties, plus (ii) on and after such
time, if ever, as National Welders is required to be consolidated with Airgas
in accordance with GAAP and to the extent not included in the amount
determined pursuant to clause (i) above, net income (excluding extraordinary
items) after taxes for such period of National Welders, plus (iii) to the
extent not included in the amount determined pursuant to clause (i) above, net
income (excluding extraordinary items) after taxes for such period of any
Person which became a direct or indirect Subsidiary of Airgas as the result of
a Material Acquisition during such period, all as determined in accordance
with GAAP, but excluding (a) the effect of (1) the non-recurring pre-tax
charge of approximately $26 million to be taken by Airgas in the fourth fiscal
quarter of 1997 in connection with the alleged fraudulent breach of contract
by a third-party supplier to Airgas and (2) any recoveries by Airgas or any of
its Subsidiaries relating to the breach of contract referred in clause (1)
above and (b) the effect of the non-recurring pre-tax, non-cash charge of
approximately $5 million to be taken by Airgas in the fourth fiscal quarter of
1997 relating to the writedown by Airgas of certain machinery and equipment,
goodwill and other intangible assets of Airgas Breathing Air Systems, Inc. and
Red-D-Arc Limited.
"Consolidated Net Worth" means, at any time, consolidated net
stockholders' equity of the Consolidated Parties determined in accordance with
GAAP but excluding any capital stock or other equity interests to which an
outstanding Redemption Obligation relates.
"Consolidated Parties" means a collective reference to each of
Airgas and its Subsidiaries.
"Consolidated Total Assets" means, at any time, all items which
would, in accordance with GAAP, be classified as assets (other than intangible
assets) on a consolidated balance sheet of the Consolidated Parties.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the U.S. LOC Documents, the Canadian LOC Documents,
Bankers' Acceptances, the U.S. Agent's Fee Letter, the Canadian Agent's Fee
Letter and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
"Credit Parties" means a collective reference to each of Airgas and
the Canadian Borrowers.
<PAGE> EX-12
"Credit Party Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders (including the U.S. Issuing
Lender, the U.S. Swingline Lender, the Canadian Swingline Lender and the
Canadian Issuing Lender) and the Agents, whenever arising, under this Credit
Agreement, the Notes or any of the other Credit Documents.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Discount Rate" means (i) in respect of any Bankers' Acceptances to
be acquired pursuant to Section 3.4 by a Canadian Lender which is a Schedule I
chartered bank, the discount rate quoted by the principal office of such
Canadian Lender at approximately 10:00 a.m. (Toronto time) (or such other time
as may be practicable for the determination of the Discount Rate) as the
discount rate at which such Canadian Lender would purchase bankers'
acceptances accepted by such Canadian Lender and with a term to maturity the
same as the Bankers' Acceptances to be acquired by such Canadian Lender on the
date of acceptance of such Bankers' Acceptances, and (ii) in respect of any
Bankers' Acceptances to be acquired pursuant to Section 3.4 by a Canadian
Lender which is a Schedule II chartered bank, the lesser of (a) the discount
rate quoted by the principal office of such Canadian Lender at approximately
10:00 a.m (Toronto time) (or such other time as may be practicable for the
determination of the Discount Rate) as the discount rate at which such
Canadian Lender would purchase bankers' acceptances accepted by such
Canadian Lender and with a term to maturity the same as the Bankers'
Acceptances to be acquired by such Canadian Lender on the date of acceptance
of such Bankers' Acceptances and (b) the discount rate calculated pursuant to
clause (i) plus 7.5 basis points.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local, Canadian and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions relating
to the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control
with Airgas or any Subsidiary of Airgas within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes Airgas or any
Subsidiary of Airgas and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
<PAGE> EX-13
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to the
following formula:
Eurodollar Rate = Interbank Offered Rate
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation
D of the Board of Governors of the Federal Reserve System (or any successor),
as such regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement (including, without limitation,
any basic, supplemental, emergency, special, or marginal reserves) applicable
with respect to Eurocurrency liabilities as that term is defined in Regulation
D (or against any other category of liabilities that includes deposits
by reference to which the interest rate of Eurodollar Loans is determined),
whether or not Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or offsets
that may be available from time to time to a Lender. The Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any change
in the Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning assigned to such term in
Section 9.1.
"Executive Officer" means, in respect of any Person, the chief
executive officer, chief operating officer or chief financial officer of such
Person.
"Existing Credit Agreement" means that certain Eighth Amended and
Restated Loan Agreement dated as of September 27, 1996, as amended from time
to time thereafter, among Airgas, the lenders party thereto and NationsBank,
N.A., as agent for such lenders.
"Existing Canadian Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount, name
of beneficiary and date of expiry on Schedule 1.1B hereto.
"Existing U.S. Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount, name
of beneficiary and date of expiry on Schedule 1.1C hereto.
"Face Amount" means, in respect of a Bankers' Acceptance, the
amount payable to the holder thereof on maturity.
"Fees" means all fees payable pursuant to Section 4.5.
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple of 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 and (B) if no
such rate is so published on such next preceding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the U.S. Agent on
such day on such transactions as determined by the U.S. Agent.
<PAGE> EX-14
"Funded Indebtedness" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six months of the
incurrence thereof) which would appear as liabilities on a balance sheet of
such Person, (iv) the principal portion of all obligations of such Person
under Capital Leases, (v) all Guaranty Obligations of such Person with respect
to Funded Indebtedness of another Person, (vi) all net obligations of such
Person in respect of interest rate protection agreements, foreign currency
exchange agreements, commodity purchase or option agreements or other interest
or exchange rate or commodity price hedging agreements, (vii) the maximum
available amount of, and all unreimbursed drawings under, all standby
letters of credit or acceptances issued or created for the account of such
Person (provided, however, in connection with any calculation hereunder of
Funded Indebtedness of the Consolidated Parties on a consolidated basis, there
shall be excluded any standby letter of credit or acceptance (together with
any unreimbursed drawings under such letter of credit or acceptance) which
supports any Funded Indebtedness of any Consolidated Party that would
otherwise be included in such calculation) and (viii) all Funded Indebtedness
of another Person secured by a Lien on any Property of such Person, whether or
not such Funded Indebtedness has been assumed. The Funded Indebtedness of any
Person shall include the Funded Indebtedness of any partnership or joint
venture in which such Person is a general partner or joint venturer to the
extent that such Person is legally liable for such Funded Indebtedness.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3
hereof.
"Governmental Authority" means any Federal, state, provincial,
local or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means Airgas in its capacity as guarantor as pursuant
to Section 3.5 hereof.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to purchase
any such Indebtedness or any Property constituting security therefor, (ii) to
advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements to the extent such agreements or arrangements constitute a
legally binding monetary obligation) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder of
such Indebtedness, or (iv) to otherwise assure or hold harmless the holder of
such Indebtedness against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made.
<PAGE> EX-15
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (iv) all obligations of such Person issued or
assumed as the deferred purchase price of Property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business
and due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (v) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (vi)
all Guaranty Obligations of such Person, (vii) the principal portion of all
obligations of such Person under Capital Leases, (viii) all net obligations of
such Person in respect of interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements, (ix) the
maximum available amount of, and all unreimbursed drawings under, all standby
letters of credit or acceptances issued or created for the account of such
Person (provided, however, in connection with any calculation hereunder of
Indebtedness of the Consolidated Parties on a consolidated basis, there shall
be excluded any standby letter of credit or acceptance (together with any
unreimbursed drawings under such letter of credit or acceptance) which
supports any Indebtedness of Airgas or any of its Subsidiaries that would
otherwise be included in such calculation) and (x) all preferred stock issued
by such Person and required by the terms thereof to be redeemed, or for which
mandatory sinking fund payments are due, by a fixed date (other than the
preferred stock issued under the National Welders Joint Venture Agreement).
The Indebtedness of any Person (i) shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or
joint venturer to the extent that such Person is legally liable for such
Indebtedness and (ii) shall not include any Indebtedness of such Person owing
to any Consolidated Party.
"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) equal to the rate of
interest, determined by the U.S. Agent on the basis of the offered rates for
deposits in U.S. Dollars for a period of time corresponding to such
Interest Period (and commencing on the first day of such Interest Period),
appearing on Telerate Page 3750 (or, if, for any reason, Telerate Page 3750 is
not available, the Reuters Screen LIBO Page) as of approximately 11:00 A.M.
(London time) two (2) Business Days before the first day of such Interest
Period. As used herein, "Telerate Page 3750" means the display designated as
page 3750 by Dow Jones Telerate, Inc. (or such other page as may replace such
page on that service for the purpose of displaying the British Bankers
Association London interbank offered rates) and "Reuters Screen LIBO Page"
means the display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page on that service for
the purpose of displaying London interbank offered rates of major banks).
"Interest Payment Date" means (i) as to any U.S. Base Rate Loan,
the last day of each March, June, September and December, the date of
repayment of principal of such Loan and the Termination Date, (ii) as to any
Revolving Canadian Loan, the first Business Day of each calendar month, the
date of repayment of principal of such Loan and the Termination Date and (iii)
<PAGE> EX-16
as to any Eurodollar Loan, any Competitive U.S. Loan, any U.S. Swingline Loan
or any Canadian Swingline Loan, the last day of each Interest Period for such
Loan, the date of repayment of principal of such Loan and the Termination
Date, and in addition where the applicable Interest Period is more than 3
months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed
to be the next succeeding Business Day, except that in the case of Eurodollar
Loans where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
"Interest Period" means (i) as to any Eurodollar Loan, a period of
one, two, three, six or twelve month's duration, as Airgas may elect,
commencing in each case, on the date of the borrowing (including conversions,
extensions and renewals), (ii) as to any Competitive U.S. Loan, a period
commencing in each case on the date of the borrowing and ending on the date
specified in the applicable Competitive U.S. Bid whereby the offer to make
such Competitive U.S. Loan was extended (such ending date in any event to be
not more than 180 days from the date of the borrowing), (iii) as to any U.S.
Swingline Loan, a period commencing in each case on the date of the borrowing
and ending on the date agreed to by Airgas and the U.S. Swingline Lender in
accordance with the provisions of Section 2.4(b)(i) (such ending date in any
event to be not more than thirty (30) days from the date of borrowing) and
(iv) as to any Canadian Swingline Loan, a period commencing in each case on
the date of the borrowing and ending on the date agreed to by the applicable
Canadian Borrower and the Canadian Swingline Lender; provided, however, (A) if
any Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day (except
that in the case of Eurodollar Loans where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding
Business Day), (B) no Interest Period shall extend beyond the Termination
Date, and (C) in the case of Eurodollar Loans, where an Interest Period begins
on a day for which there is no numerically corresponding day in the calendar
month in which the Interest Period is to end, such Interest Period shall end
on the last day of such calendar month.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and each Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their successors
and permitted assigns.
"Letter of Credit" means any U.S. Letter of Credit or any Canadian
Letter of Credit.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction, the Personal Property Security Act (Ontario) or other similar
recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving U.S. Loans (or a portion of
any Revolving U.S. Loan bearing interest at the U.S. Base Rate or the
Eurodollar Rate and referred to as a U.S. Base Rate Loan or a Eurodollar
Loan), the 364-Day Revolving Loans (or a portion of any 364-Day Revolving Loan
bearing interest at the U.S. Base Rate or the Eurodollar Rate and referred to
as a U.S. Base Rate Loan or a Eurodollar Loan), the Competitive U.S. Loans (or
any portion of any Competitive U.S. Loan), the Revolving Canadian Loans (or
any portion of any Revolving Canadian Loan), the BA Outstandings, the U.S.
<PAGE> EX-17
Swingline Loans (or any U.S. Swingline Loan bearing interest at the U.S. Base
Rate or the Quoted Rate and referred to as a U.S. Base Rate Loan or a Quoted
Rate U.S. Swingline Loan) and/or the Canadian Swingline Loans, individually or
collectively, as appropriate.
"Material Acquisition" means any acquisition involving an aggregate
purchase price (including cash and non-cash consideration) paid or payable by
Airgas and/or any of its Subsidiaries in excess of U.S.$25,000,000.
"Material Adverse Effect" means a material adverse effect on (i)
the condition (financial or otherwise), operations, business, assets,
liabilities or prospects of the Consolidated Parties taken as a whole, (ii)
the ability of the Credit Parties taken as a whole to perform any material
obligation under the Credit Documents or (iii) the material rights and
remedies of the Lenders under the Credit Documents.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Laws, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Moody's" means Moody's Investors Service, Inc., or any successor
or assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which a Consolidated Party or
any ERISA Affiliate and at least one employer other than a Consolidated Party
or any ERISA Affiliate are contributing sponsors.
"National Welders" means National Welders Supply Company, Inc., a
North Carolina corporation.
"National Welders Joint Venture Agreement" means that certain joint
venture agreement dated June 28, 1996 by and among Airgas, National Welders,
J. A. Turner, Jr., Judith Carpenter, J. A. Turner, III and Linerieux B.
Turner.
"National Welders Liens" means the liens and security interests on
the assets of National Welders as described on Schedule 1.1D hereto.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means cash proceeds received by a Consolidated Party
from time to time in connection with any sale of Property made pursuant to
Section 8.4(b)(iv), net of the actual costs and taxes incurred by such Person
in connection with and attributable to such sale.
"New Commitment Agreement" shall have the meaning assigned to such
term in Section 4.4.
"Non-Excluded Taxes" shall have the meaning assigned to such term
in Section 4.10.
"Note" or "Notes" means any Revolving U.S. Note, any Competitive
U.S. Note, the U.S. Swingline Note, any 364-Day Revolving Note or any
Revolving Canadian Note, as the context may require.
<PAGE> EX-18
"Notice of Borrowing" means (a) in the case of Revolving U.S. Loans
or 364-Day Revolving Loans, a written notice of borrowing in substantially the
form of Schedule 2.1(b)(i), as required by Sections 2.1(b)(i) and 2.5(b)(i) or
(b) in the case of Revolving Canadian Loans, a written notice of borrowing in
substantially the form of Schedule 3.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 4.2, as required
by Section 4.2.
"Operating Accounts" shall have the meaning assigned to such term
in Section 3.2(a).
"Participation Interest" means, the extension of credit by a Lender
by way of a purchase of a participation in any U.S. Letters of Credit or U.S.
LOC Obligations as provided in Section 2.3(c), in any U.S. Swingline Loans as
provided in Section 2.4(b)(iii), in any Canadian Letters of Credit or Canadian
LOC Obligations as provided in Section 3.3(c) or in any Loans or BA
Outstandings as provided in Section 4.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Liens" means:
(i) Liens in favor of the Agents 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 Consolidated Parties 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
<PAGE> EX-19
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 8.1;
(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 existing as of the Closing Date and set forth on
Schedule 1.1E.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which Airgas, any
Subsidiary of Airgas or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" within the meaning of Section 3(5) of ERISA.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate U.S. Swingline
Loan, the fixed percentage rate per annum offered by the U.S. Swingline Lender
and accepted by Airgas with respect to such U.S. Swingline Loan as provided in
accordance with the provisions of Section 2.4.
"Quoted Rate U.S. Swingline Loan" means a U.S. Swingline Loan
bearing interest at a Quoted Rate.
"Redemption Obligation" means the contingent liability of any
Consolidated Party with respect to cash redemption obligations relating to any
capital stock or other equity interests issued by a Consolidated Party to any
officer, director, shareholder or other principal of any Subsidiary created or
acquired after the Closing Date.
"Regulation D, G, U, or X" means Regulation D, G, U or X,
respectively, of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment (including the abandonment or discarding of barrels,
containers and other closed receptacles containing any Materials of
Environmental Concern).
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the post-event notice
requirement is waived under subsections .13, .14, .18, .19, or .20 of PBGC
Reg. ' 2615.
"Required Canadian Lenders" means, at any time, Canadian Lenders
which are then in compliance with their obligations hereunder (as determined
by the U.S. Agent) and holding in the aggregate at least 51% of (i) the
Revolving Canadian Commitments or (ii) if the Commitments have been
<PAGE> EX-20
terminated, the sum of (A) the outstanding Revolving Canadian Loans, (B) the
BA Outstandings, (C) the outstanding Canadian Swingline Loans, (D) the
Canadian LOC Obligations and (E) the outstanding Participation Interests in
Revolving Canadian Loans, Canadian Letters of Credit and BA Outstandings
(including the Participation Interests of the Canadian Issuing Lender in any
Canadian Letters of Credit).
"Required Lenders" means, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the U.S. Agent)
and holding in the aggregate at least 51% of (i) the sum of the U.S. Dollar
Amount of (A) the Revolving U.S. Commitments, (B) the 364-Day Revolving
Commitments, (C) the Revolving Canadian Commitments, and (D) the outstanding
principal amount of any 364-Day Revolving Loans which have been converted to
term loans pursuant to Section 2.5(f) (and Participation Interests therein) or
(ii) if the Commitments have been terminated, the sum of the U.S. Dollar
Amount of (A) the outstanding Loans, (B) the outstanding Participation
Interests (including the Participation Interests of the U.S. Issuing Lender in
any U.S. Letters of Credit, the Participation Interests of the U.S. Swingline
Lender in any U.S. Swingline Loans and the Participation Interests of the
Canadian Issuing Lender in any Canadian Letters of Credit) and (C) the
Canadian LOC Obligations.
"Required U.S. Lenders" means, at any time, U.S. Lenders which are
then in compliance with their obligations hereunder (as determined by the U.S.
Agent) and holding in the aggregate at least 51% of (i) the sum of (A) the
Revolving U.S. Commitments, (B) the 364-Day Revolving Commitments and (C) the
outstanding principal amount of any 364-Day Revolving Loans which have been
converted to term loans pursuant to Section 2.5(f) (and Participation
Interests therein) or (ii) if the Commitments have been terminated, the sum of
(A) the outstanding Revolving U.S. Loans, 364-Day Revolving Loans, Competitive
U.S. Loans and U.S. Swingline Loans and (B) the outstanding Participation
Interests in Revolving U.S. Loans, 364-Day Revolving Loans, U.S. Swingline
Loans and U.S. Letters of Credit (including the Participation Interests of
the U.S. Issuing Lender in any U.S. Letters of Credit and the Participation
Interests of the U.S. Swingline Lender in any U.S. Swingline Loans).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property is subject.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Airgas
or any of its Subsidiaries, now or hereafter outstanding, (ii) any redemption
(including, without limitation, in connection with any Redemption Obligation),
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Airgas or
any of its Subsidiaries, now or hereafter outstanding or (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock of Airgas or
any of its Subsidiaries, now or hereafter outstanding.
"Revolving Canadian Loans" shall have the meaning assigned to such
term in Section 3.1(a).
"Revolving Canadian Commitment" means, with respect to each
Canadian Lender, the commitment of such Canadian Lender in an aggregate
principal amount at any time outstanding of up to such Canadian Lender's
Canadian Commitment Percentage of the Revolving Canadian Committed Amount, (i)
to make Revolving Canadian Loans in accordance with the provisions of Section
<PAGE> EX-21
3.1(a), (ii) to purchase Participation Interests in Canadian Letters of Credit
in accordance with the provisions of Section 3.3(c) and (iii) to accept
Bankers' Acceptances in accordance with the provisions of Section 3.4(a).
"Revolving Canadian Committed Amount" shall have the meaning
assigned to such term in Section 3.1(a).
"Revolving Canadian Note" means a promissory note of a Canadian
Borrower in favor of a Canadian Lender delivered pursuant to Section 3.1(e)
and evidencing the Revolving Canadian Loans of such Canadian Lender to such
Canadian Borrower, as such promissory note may be amended, modified, restated
or replaced from time to time.
"Revolving U.S. Commitment" means, with respect to each U.S.
Lender, the commitment of such U.S. Lender in an aggregate principal amount at
any time outstanding of up to such U.S. Lender's U.S. Commitment Percentage of
the Revolving U.S. Committed Amount, (i) to make Revolving U.S. Loans in
accordance with the provisions of Section 2.1(a), (ii) to purchase
Participation Interests in U.S. Letters of Credit in accordance with the
provisions of Section 2.3(c), and (iii) to purchase Participation Interests in
the U.S. Swingline Loans in accordance with the provisions of Section
2.4(b)(iii).
"Revolving U.S. Committed Amount" shall have the meaning assigned
to such term in Section 2.1(a).
"Revolving U.S. Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving U.S. Note" means a promissory note of Airgas in favor of
a U.S. Lender delivered pursuant to Section 2.1(e) and evidencing the
Revolving U.S. Loans of such U.S. Lender, as such promissory note may be
amended, modified, restated or replaced from time to time.
"S&P" means Standard & Poor's Ratings Services Group, a division of
The McGraw-Hill Companies, Inc., or any successor or assignee of the business
of such division in the business of rating securities.
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Standby Canadian Letter of Credit Fee" shall have the meaning
assigned to such term in Section 4.5(c)(i).
"Standby U.S. Letter of Credit Fee" shall have the meaning assigned
to such term in Section 4.5(b)(i).
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening
of any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through Subsidiaries
has more than 50% equity interest at any time. The term "Subsidiary" or
"Subsidiaries" shall include National Welders at such time, if ever, as
National Welders is required to be consolidated with Airgas in accordance with
GAAP.
<PAGE> EX-22
"Termination Date" means (i) with respect to the Revolving U.S.
Loans, the Competitive U.S. Loans, the U.S. Swingline Loans, the Canadian
Swingline Loans, the Revolving Canadian Loans, the U.S. Letters of Credit, the
Canadian Letters of Credit and the Bankers' Acceptances, December 5, 2002 and
(ii) with respect to the 364-Day Revolving Loans, December 4, 1998 (unless
extended pursuant to Section 2.5(f)).
"Termination Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (ii) the withdrawal by
Airgas, any Subsidiary of Airgas or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (iii) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section 4041(a)(2)
or 4041A of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Plan; or (vi) the complete or partial withdrawal of any Consolidated Party or
any ERISA Affiliate from a Multiemployer Plan.
"Trade Canadian Letter of Credit Fee" shall have the meaning
assigned to such term in Section 4.5(c)(ii).
"Trade U.S. Letter of Credit Fee" shall have the meaning assigned
to such term in Section 4.5(b)(ii).
"Unused 364-Day Revolving Commitment Fee" shall have the meaning
assigned to such term in Section 4.5(a)(ii).
"Unused 364-Day Revolving Commitment Fee Calculation Period" shall
have the meaning assigned to such term in Section 4.5(a)(ii).
"Unused 364-Day Revolving Committed Amount" means, for any period,
the amount by which (a) the then applicable 364-Day Revolving Committed Amount
exceeds (b) the daily average for such period of the outstanding aggregate
principal amount of all 364-Day Revolving Loans.
"Unused Revolving Canadian Commitment Fee" shall have the meaning
assigned to such term in Section 4.5(a)(iii).
"Unused Revolving Canadian Commitment Fee Calculation Period" shall
have the meaning assigned to such term in Section 4.5(a)(iii).
"Unused Revolving Canadian Committed Amount" means, for any period,
the amount by which (a) the then applicable Revolving Canadian Committed
Amount exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Revolving Canadian Loans plus
(ii) the outstanding aggregate principal amount of all Canadian LOC
Obligations plus (iii) the aggregate BA Outstandings.
"Unused Revolving U.S. Commitment Fee" shall have the meaning
assigned to such term in Section 4.5(a)(i).
"Unused Revolving U.S. Commitment Fee Calculation Period" shall
have the meaning assigned to such term in Section 4.5(a)(i).
"Unused Revolving U.S. Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving U.S. Committed Amount
exceeds (b) the daily average sum for such period of (i) the outstanding
<PAGE> EX-23
aggregate principal amount of all Revolving U.S. Loans plus (ii) the
outstanding aggregate principal amount of all U.S. LOC Obligations plus (iii)
50% of the outstanding aggregate principal amount of all Competitive U.S.
Loans.
"U.S. Agent" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"U.S. Agent's Fee Letter" means that certain letter agreement,
dated as of the Closing Date, between the U.S. Agent and Airgas, as amended,
modified, supplemented or replaced from time to time.
"U.S. Agent's Fees" shall have the meaning assigned to such term in
Section 4.5(c)(i).
"U.S. Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to
the greater of (a) the Federal Funds Rate in effect on such day plus 2 of 1%
or (b) the U.S. Prime Rate in effect on such day. If for any reason the U.S.
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable after due inquiry to ascertain the Federal
Funds Rate for any reason, including the inability or failure of the U.S.
Agent to obtain sufficient quotations in accordance with the terms hereof, the
U.S. Base Rate shall be determined without regard to clause (a) of the first
sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the U.S. Base Rate due to a change
in the U.S. Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the U.S. Prime Rate or the Federal Funds
Rate, respectively.
"U.S. Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the U.S. Base Rate.
"U.S. Commitment Percentage" means, for any U.S. Lender, the
percentage identified as its U.S. Commitment Percentage on Schedule 2.1(a), as
such percentage may be modified in connection with any increase in the
Revolving U.S. Committed Amount pursuant to Section 4.5(c) or any assignment
made in accordance with the provisions of Section 11.3.
"U.S. Dollars" and "U.S.$" means dollars in lawful currency of the
United States of America.
"U.S. Dollar Amount" means on any date of computation, (a) with
respect to U.S. Dollars or an amount denominated in Dollars, such amount and
(b) with respect to an amount of Canadian Dollars or an amount denominated in
Canadian Dollars, the U.S. Dollar Equivalent of such amount.
"U.S. Dollar Equivalent" means, on any date of computation, with
respect to an amount denominated in Canadian Dollars, the amount of U.S.
Dollars into which the U.S. Agent could, in accordance with its practice from
time to time in the interbank foreign exchange market, convert such amount of
Canadian Dollars at its spot rate of exchange (inclusive of all reasonable
related costs of conversion) applicable to the relevant transaction at or
about 10:00 A.M., Charlotte, North Carolina time.
"U.S. Issuing Lender" means NationsBank.
"U.S. Issuing Lender Fees" shall have the meaning assigned to such
term in Section 4.5(b)(iii).
<PAGE> EX-24
"U.S. Lenders" means (i) those Lenders identified as U.S Lenders on
the signature pages attached hereto and (ii) any Person which becomes a U.S.
Lender by executing a New Commitment Agreement pursuant to Section 4.4(c),
together with their successors and assigns.
"U.S. Letter of Credit" means (i) any letter of credit issued by
the U.S. Issuing Lender for the account of Airgas in accordance with the terms
of Section 2.3 and (ii) any Existing U.S. Letter of Credit.
"U.S. LOC Commitment" means the commitment of the U.S. Issuing
Lender to issue U.S. Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings thereon)
of up to the U.S. LOC Committed Amount.
"U.S. LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.3.
"U.S. LOC Documents" means, with respect to any U.S. Letter of
Credit, such U.S. Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such U.S. Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or at
risk or (ii) any collateral security for such obligations.
"U.S. LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under U.S. Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such U.S. Letters of Credit plus
(ii) the aggregate amount of all drawings under U.S. Letters of Credit honored
by the U.S. Issuing Lender but not theretofore reimbursed.
"U.S. Prime Rate" means the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect at its
principal office in Charlotte, North Carolina, with each change in the U.S.
Prime Rate being effective on the date such change is publicly announced as
effective (it being understood and agreed that the U.S. Prime Rate is a
reference rate used by NationsBank in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on any
extension of credit by NationsBank to any debtor).
"U.S. Swingline Commitment" means the commitment of the U.S.
Swingline Lender to make U.S. Swingline Loans in an aggregate principal amount
at any time outstanding of up to the U.S. Swingline Committed Amount.
"U.S. Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.4(a).
"U.S. Swingline Lender" means NationsBank.
"U.S. Swingline Loan" means a loan made pursuant to and defined in
Section 2.4(a).
"U.S. Swingline Note" means the promissory note of Airgas in favor
of the U.S. Swingline Lender in the original principal amount of
U.S.$15,000,000, as such promissory note may be amended, modified, restated or
replaced from time to time.
"Voting Stock" means, with respect to any Person, capital stock
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
<PAGE> EX-25
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1
hereof (or, prior to the delivery of the first financial statements pursuant
to Section 7.1 hereof, consistent with the financial statements as at March
31, 1997); provided, however, if (a) Airgas shall object to determining such
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Agents or the Required Lenders shal l so object in writing within 30 days
after delivery of such financial statements, then such calculations shall be
made on a basis consistent with the most recent financial statements delivered
by Airgas to the Lenders as to which no such objection shall have been made.
Notwithstanding the above, it is understood and agreed that, for purposes of
all calculations made in determining compliance with the financial covenants
set forth in Section 7.10, the amount determined pursuant to clause (iii) of
the definition of "Consolidated Net Income" set forth in this Section 1.1
shall be calculated so as to give effect to any Material Acquisition occurring
during any period applicable in such calculations occurring after the date of
such Material Acquisition.
SECTION 2
U.S. DOLLAR CREDIT FACILITIES
2.1 Revolving U.S. Loans.
(a) Revolving U.S. Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each U.S. Lender severally agrees to make available to Airgas such
U.S. Lender's U.S. Commitment Percentage of revolving credit loans requested
by Airgas in U.S. Dollars ("Revolving U.S. Loans") from time to time from the
Closing Date until the Termination Date, or such earlier date as the Revolving
U.S. Commitments shall have been terminated as provided herein for the
purposes hereinafter set forth; provided, however, that the aggregate
principal amount of outstanding Revolving U.S. Loans shall not exceed SIX
HUNDRED TWENTY-FIVE MILLION U.S. DOLLARS (U.S.$625,000,000) (as such aggregate
maximum amount may be increased or reduced from time to time as provided
in Section 4.4, the "Revolving U.S. Committed Amount"); provided, further, (i)
with regard to each U.S. Lender individually, such U.S. Lender's outstanding
Revolving U.S. Loans shall not exceed such U.S. Lender's U.S. Commitment
Percentage of the Revolving U.S. Committed Amount and (ii) with regard to the
U.S. Lenders collectively, the aggregate principal amount of outstanding
Revolving U.S. Loans plus the aggregate principal amount of outstanding
<PAGE> EX-26
Competitive U.S. Loans plus the aggregate principal amount of outstanding U.S.
Swingline Loans plus U.S. LOC Obligations outstanding shall not exceed the
Revolving U.S. Committed Amount.
Revolving U.S. Loans may consist of U.S. Base Rate Loans or Eurodollar Loans,
or a combination thereof, as Airgas may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however, that
no more than 11 Eurodollar Loans shall be outstanding hereunder at any time.
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. Revolving
U.S. Loans hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Revolving U.S. Loan Borrowings.
(i) Notice of Borrowing. Airgas (by its duly authorized officers
or representatives) shall request a Revolving U.S. Loan borrowing by written
notice (or telephone notice promptly confirmed in writing) to the U.S. Agent
not later than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
of the requested borrowing in the case of U.S. Base Rate Loans, and on the
third Business Day prior to the date of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Revolving U.S. Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing shall be
comprised of U.S. Base Rate Loans, Eurodollar Loans or a combination thereof,
and if Eurodollar Loans are requested, the Interest Period(s) therefor. If
Airgas shall fail to specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a Eurodollar Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or (II) the type
of Revolving U.S. Loan requested, then such notice shall be deemed to be a
request for a U.S. Base Rate Loan hereunder. The U.S. Agent shall give notice
to each affected U.S. Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.1(b)(i), specifying the contents thereof
and each such U.S. Lender's share of any borrowing to be made pursuant
thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or U.S. Base Rate Loan
that is a Revolving U.S. Loan shall be in a minimum aggregate principal amount
of U.S.$5,000,000 and integral multiples of U.S.$1,000,000 in excess thereof
(or the remaining amount of the Revolving U.S. Committed Amount, if less).
(iii) Advances. Each U.S. Lender will make its U.S. Commitment
Percentage of each Revolving U.S. Loan borrowing available to the U.S. Agent
for the account of Airgas as specified in Section 4.14, or in such other
manner as the U.S. Agent may specify in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing in U.S. Dollars and in funds immediately available to the U.S.
Agent. Such borrowing will then be made available to Airgas by the U.S.
Agent by crediting the account of Airgas on the books of the main office of
the U.S. Agent in Charlotte, North Carolina with the aggregate of the amounts
made available to the U.S. Agent by the U.S. Lenders and in like funds as
received by the U.S. Agent.
(c) Repayment. The principal amount of all Revolving U.S. Loans shall
be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 4.1,
<PAGE> EX-27
(i) U.S. Base Rate Loans. During such periods as Revolving U.S.
Loans shall be comprised in whole or in part of U.S. Base Rate Loans, such
U.S. Base Rate Loans shall bear interest at a per annum rate equal to the U.S.
Base Rate; and
(ii) Eurodollar Loans. During such periods as Revolving U.S.
Loans shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus the Applicable Percentage.
Interest on Revolving U.S. Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
(e) Revolving U.S. Notes. The Revolving U.S. Loans made by each U.S.
Lender shall be evidenced by a duly executed promissory note of Airgas to such
U.S. Lender in an original principal amount equal to such U.S. Lender's U.S.
Commitment Percentage of the Revolving U.S. Committed Amount and in
substantially the form of Schedule 2.1(e).
2.2 Competitive U.S. Loan Subfacility.
(a) Competitive U.S. Loans. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, Airgas may,
from time to time from the Closing Date until the Termination Date, request
and each U.S. Lender may, in its sole discretion, agree to make, Competitive
U.S. Loans in U.S. Dollars to Airgas; provided, however, that (i) the
aggregate principal amount of outstanding Competitive U.S. Loans shall not at
any time exceed the Revolving U.S. Committed Amount and (ii) the sum of the
aggregate principal amount of outstanding Revolving U.S. Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S.
LOC Obligations outstanding shall not at any time exceed the Revolving U.S.
Committed Amount. Each Competitive U.S. Loan shall be not less than
U.S.$2,000,000 in the aggregate and integral multiples of U.S.$1,000,000 in
excess thereof (or the remaining portion of the Revolving U.S. Committed
Amount, if less).
(b) Competitive U.S. Bid Requests. Airgas (by its duly authorized
officers or representatives) may solicit by making a written, telefax or
telephonic request to all of the U.S. Lenders for a Competitive U.S. Loan. To
be effective, such request must be received by each of the U.S. Lenders by
such time as determined by each such U.S. Lender in accordance with such U.S.
Lender's customary practices (in any event not to be later than 12:00 NOON
(Charlotte, North Carolina time)) on the date of the requested borrowing and
must specify (i) that a Competitive U.S. Loan is requested, (ii) the amount of
such Competitive U.S. Loan and (iii) the Interest Period for such Competitive
U.S. Loan.
(c) Competitive U.S. Bids. Upon receipt of a request by Airgas for a
Competitive U.S. Loan, each U.S. Lender may, in its sole discretion, submit a
Competitive U.S. Bid containing an offer to make a Competitive U.S. Loan in an
amount up to the amount specified in the related request for Competitive U.S.
Loans. Such Competitive U.S. Bid shall be submitted to Airgas by telephone
notice by such time as determined by such U.S. Lender in accordance with such
U.S. Lender's customary practices (in any event not to be later than 1:00 P.M.
(Charlotte, North Carolina time)) on the date of the requested Competitive
U.S. Loan. Competitive U.S. Bids so made shall be irrevocable. Each
Competitive U.S. Bid shall specify (i) the date of the proposed Competitive
U.S. Loan, (ii) the maximum and minimum principal amounts of the Competitive
U.S. Loan for which such offer is being made (which may be for all or a part
<PAGE> EX-28
of (but not more than) the amount requested by Airgas), (iii) the applicable
Competitive U.S. Bid Rate, and (iv) the applicable Interest Period.
(d) Acceptance of Competitive U.S. Bids. Airgas (by its duly
authorized officers or representatives) may, before such time as determined by
the applicable U.S. Lender in accordance with such U.S. Lender's customary
practices (in any event until 2:00 P.M. (Charlotte, North Carolina time)) on
the date of the requested Competitive U.S. Loan, accept any Competitive U.S.
Bid by giving the applicable U.S. Lender and the U.S. Agent telephone notice
(immediately confirmed in writing) of (i) the U.S. Lender or U.S. Lenders
whose Competitive U.S. Bid(s) is/are accepted, (ii) the principal amount of
the Competitive U.S. Bid(s) so accepted and (iii) the Interest Period of the
Competitive U.S. Bid(s) so accepted. Airgas may accept any Competitive
U.S. Bid in whole or in part; provided, however, that (a) the principal amount
of each Competitive U.S. Loan may not exceed the maximum amount offered in the
Competitive U.S. Bid and may not be less than the minimum amount offered in
the Competitive U.S. Bid, (b) the principal amount of each Competitive U.S.
Loan may not exceed the total amount requested pursuant to subsection (a)
above, (c) Airgas shall not accept a Competitive U.S. Bid made at a particular
Competitive U.S. Bid Rate if it has decided to reject a Competitive U.S. Bid
made at a lower Competitive U.S. Bid Rate and (d) if Airgas shall accept a
Competitive U.S. Bid or Bids made at a particular Competitive U.S. Bid Rate
but the amount of such Competitive U.S. Bid or Bids shall cause the total
amount of Competitive U.S. Bids to be accepted by Airgas to exceed the total
amount requested pursuant to subsection (a) above, then Airgas shall accept a
portion of such Competitive U.S. Bid or Bids in an amount equal to the total
amount requested pursuant to subsection (a) above less the amount of other
Competitive U.S. Bids accepted with respect to such request, which acceptance,
in the case of multiple Competitive U.S. Bids at the same Competitive U.S. Bid
Rate, shall be made pro rata in accordance with each such Competitive U.S. Bid
at such Competitive U.S. Bid Rate. Competitive U.S. Bids so accepted by
Airgas shall be irrevocable.
(e) Funding of Competitive U.S. Loans. Upon acceptance by Airgas
pursuant to subsection (d) above of all or a portion of any U.S. Lender's
Competitive U.S. Bid, such U.S. Lender shall, before such time as determined
by such U.S. Lender in accordance with such U.S. Lender's customary practices,
on the date of the requested Competitive U.S. Loan, make such Competitive U.S.
Loan available to the U.S. Agent in Federal or other immediately available
funds. Upon receipt of such funds, the U.S. Agent will promptly make such
funds available to Airgas at Account No. 001-641-844 maintained at the offices
of NationsBank; provided, however, that if on the date of such Competitive
U.S. Loan Airgas is to repay all or any part of an outstanding Revolving U.S.
Loan, then the U.S. Agent shall apply such Competitive U.S. Loan first to such
repayment, and only an amount equal to the excess (if any) of the amount
borrowed over the amount being repaid shall be made available to Airgas.
(f) Competitive U.S. Notes. The Competitive U.S. Loans of each U.S.
Lender shall be evidenced by a single Competitive U.S. Note duly executed on
behalf of Airgas, dated the date hereof, in substantially the form of Schedule
2.2(f), payable to the order of such U.S. Lender.
(g) Repayment of Competitive U.S. Loans. Airgas shall repay to each
U.S. Lender which has made a Competitive U.S. Loan on the last day of the
Interest Period for such Competitive U.S. Loan the then unpaid principal
amount of such Competitive U.S. Loan. Airgas may not prepay any Competitive
U.S. Loan unless such prepayment is accompanied by payment of amounts
specified in Section 4.1.
(h) Interest. Airgas shall pay interest to each U.S. Lender on the
unpaid principal amount of each Competitive U.S. Loan of such U.S. Lender from
<PAGE> EX-29
and including the date of such Competitive U.S. Loan to but excluding the
stated maturity date thereof, at the applicable Competitive U.S. Bid Rate for
such Competitive U.S. Loan (computed on the basis of the actual number of days
elapsed over a year of 360 days). Interest on Competitive U.S. Loans shall be
payable in arrears on each applicable Interest Payment Day (or at such other
times as may be specified herein).
(i) Limitation on Number of Competitive U.S. Loans. Airgas shall not
request a Competitive U.S. Loan if, assuming the maximum amount of Competitive
U.S. Loans so requested is borrowed as of the date of such request, the sum of
the aggregate principal amount of outstanding Revolving U.S. Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding would exceed the aggregate Revolving U.S. Committed
Amount.
(j) Change in Procedures for Requesting Competitive U.S. Loans. Airgas
and the U.S. Lenders hereby agree that, notwithstanding any other provision to
the contrary contained in this Credit Agreement, upon mutual agreement of the
U.S. Agent and Airgas and written notice by the U.S. Agent to the U.S.
Lenders, all further requests by Airgas for Competitive U.S. Loans shall be
made by Airgas to the U.S. Lenders through the U.S. Agent in accordance with
such procedures as shall be prescribed by the U.S. Agent and acceptable to
Airgas and each U.S. Lender.
2.3 U.S. Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
U.S. LOC Documents, if any, and any other terms and conditions which the U.S.
Issuing Lender may reasonably require, the U.S. Lenders will participate in
the issuance by the U.S. Issuing Lender from time to time of such U.S. Letters
of Credit in U.S. Dollars from the Closing Date until the Termination Date as
Airgas may request, in a form acceptable to the U.S. Issuing Lender; provided,
however, that (i) the U.S. LOC Obligations outstanding shall not at any time
exceed TWO HUNDRED FIFTY MILLION U.S. DOLLARS (U.S.$250,000,000) (the "U.S.
LOC Committed Amount") and (ii) the sum of the aggregate principal amount of
outstanding Revolving U.S. Loans plus the aggregate principal amount of
outstanding Competitive U.S. Loans plus the aggregate principal amount of
outstanding U.S. Swingline Loans plus U.S. LOC Obligations outstanding shall
not at any time exceed the aggregate Revolving U.S. Committed Amount. No U.S.
Letter of Credit shall (x) have an original expiry date more than one year
from the date of issuance or (y) as originally issued or as extended, have an
expiry date extending beyond the Termination Date. Each U.S. Letter of Credit
shall comply with the related U.S. LOC Documents. The issuance and expiry
date of each U.S. Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a U.S. Letter
of Credit shall be submitted by Airgas (by its duly authorized officers or
representatives) to the U.S. Issuing Lender at least three (3) Business Days
prior to the requested date of issuance. The U.S. Issuing Lender will, at
least quarterly and more frequently upon request, disseminate to each of the
U.S. Lenders a detailed report specifying the U.S. Letters of Credit which are
then issued and outstanding and any activity with respect thereto which may
have occurred since the date of the prior report, and including therein, among
other things, the beneficiary, the face amount, expiry date as well as any
payment or expirations which may have occurred.
(c) Participation. Each U.S. Lender, upon issuance of a U.S. Letter of
Credit (or, in the case of each Existing U.S. Letter of Credit, on the Closing
Date), shall be deemed to have purchased without recourse a risk participation
from the U.S. Issuing Lender in such U.S. Letter of Credit and the obligations
<PAGE> EX-30
arising thereunder, in each case in an amount equal to its pro rata share of
the obligations under such U.S. Letter of Credit (based on the respective U.S.
Commitment Percentages of the U.S. Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the U.S. Issuing Lender therefor and discharge when
due, its pro rata share of the obligations arising under such U.S. Letter of
Credit. Without limiting the scope and nature of each U.S. Lender's
participation in any U.S. Letter of Credit, to the extent that the U.S.
Issuing Lender has not been reimbursed as required hereunder or under any such
U.S. Letter of Credit, each such U.S. Lender shall pay to the U.S. Issuing
Lender its pro rata share of such unreimbursed drawing in same day
funds on the day of notification by the U.S. Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) hereof. The obligation
of each U.S. Lender to so reimburse the U.S. Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of Airgas to reimburse
the U.S. Issuing Lender under any U.S. Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any U.S. Letter
of Credit, the U.S. Issuing Lender will promptly notify Airgas. Unless Airgas
shall immediately notify the U.S. Issuing Lender that Airgas intends to
otherwise reimburse the U.S. Issuing Lender for such drawing, Airgas shall be
deemed to have requested that the U.S. Lenders make a Revolving U.S. Loan in
the amount of the drawing as provided in subsection (e) hereof on the related
U.S. Letter of Credit, the proceeds of which will be used to satisfy the
related reimbursement obligations. Airgas promises to reimburse the U.S.
Issuing Lender on the day of drawing under any U.S. Letter of Credit (either
with the proceeds of a Revolving U.S. Loan obtained hereunder or otherwise) in
same day funds. If Airgas shall fail to reimburse the U.S. Issuing Lender as
provided hereinabove, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the U.S. Base Rate plus the sum of (i)
the Applicable Percentage and (ii) two percent (2%). Airgas' reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment Airgas may claim or have against the U.S. Issuing Lender, the U.S.
Agent, the U.S. Lenders, the beneficiary of the U.S. Letter of Credit drawn
upon or any other Person, including without limitation any defense based on
any failure of Airgas to receive consideration or the legality, validity,
regularity or unenforceability of the U.S. Letter of Credit. The U.S. Issuing
Lender will promptly notify the other U.S. Lenders of the amount of any
unreimbursed drawing under any U.S. Letter of Credit and each U.S. Lender
shall promptly pay to the U.S. Agent for the account of the U.S. Issuing
Lender in U.S. Dollars and in immediately available funds, the amount of
such U.S. Lender's pro rata share of such unreimbursed drawing. Such payment
shall be made on the day such notice is received by such U.S. Lender from the
U.S. Issuing Lender if such notice is received at or before 2:00 P.M.
(Charlotte, North Carolina time) otherwise such payment shall be made at or
before 12:00 NOON (Charlotte, North Carolina time) on the Business Day
next succeeding the day such notice is received. If such U.S. Lender does not
pay such amount to the U.S. Issuing Lender in full upon such request, such
U.S. Lender shall, on demand, pay to the U.S. Agent for the account of the
U.S. Issuing Lender interest on the unpaid amount during the period from the
date of such drawing until such U.S. Lender pays such amount to the U.S.
Issuing Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such U.S. Lender is required to make payments
of such amount pursuant to the preceding sentence, the Federal Funds Rate and
thereafter at a rate equal to the U.S. Base Rate. Each U.S. Lender's
obligation to make such payment to the U.S. Issuing Lender, and the right
of the U.S. Issuing Lender to receive the same, shall be absolute and
<PAGE> EX-31
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or the acceleration
of the obligations of Airgas hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the
making of each such payment by a U.S. Lender to the U.S. Issuing Lender, such
U.S. Lender shall, automatically and without any further action on the part of
the U.S. Issuing Lender or such U.S. Lender, acquire a participation in an
amount equal to such payment (excluding the portion of such payment
constituting interest owing to the U.S. Issuing Lender) in the related
unreimbursed drawing portion of the U.S. LOC Obligation and in the interest
thereon and in the related U.S. LOC Documents, and shall have a claim against
Airgas with respect thereto.
(e) Repayment with Revolving U.S. Loans. On any day on which Airgas
shall have requested, or shall be deemed to have requested, a Revolving U.S.
Loan advance to reimburse a drawing under a U.S. Letter of Credit, the U.S.
Agent shall give notice to the U.S. Lenders that a Revolving U.S. Loan has
been requested or deemed requested by Airgas to be made in connection with a
drawing under a U.S. Letter of Credit, in which case a Revolving U.S. Loan
advance comprised of U.S. Base Rate Loans (or Eurodollar Loans to the extent
Airgas has complied with the procedures of Section 2.1(b)(i) with respect
thereto) shall be immediately made to Airgas by all U.S. Lenders
(notwithstanding any termination of the Commitments pursuant to Section 9.2)
pro rata based on the respective U.S. Commitment Percentages of the U.S.
Lenders (determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid directly to
the U.S. Issuing Lender for application to the respective U.S. LOC
Obligations. Each such U.S. Lender hereby irrevocably agrees to make its pro
rata share of each such Revolving U.S. Loan immediately upon any such request
or deemed request in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (i) the amount of such borrowing may
not comply with the minimum amount for advances of Revolving U.S. Loans
otherwise required hereunder, (ii) whether any conditions specified in Section
5.2 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for Revolving U.S.
Loan to be made by the time otherwise required hereunder, (v) whether the date
of such borrowing is a date on which Revolving U.S. Loans are otherwise
permitted to be made hereunder or (vi) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving U.S. Loan cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to Airgas), then each such U.S. Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from Airgas on or after such
date and prior to such purchase) from the U.S. Issuing Lender such
participation in the outstanding U.S. LOC Obligations as shall be necessary to
cause each such U.S. Lender to share in such U.S. LOC Obligations ratably
(based upon the respective U.S. Commitment Percentages of the U.S. Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2)), provided that at the time any purchase of
participation pursuant to this sentence is actually made, the purchasing U.S.
Lender shall be required to pay to the U.S. Issuing Lender, to the extent not
paid to the Issuer by Airgas in accordance with the terms of subsection (d)
hereof, interest on the principal amount of participation purchased for each
day from and including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
rate equal to, if paid within two (2) Business Days of the date of the
Revolving U.S. Loan advance, the Federal Funds Rate, and thereafter at a rate
equal to the U.S. Base Rate.
<PAGE> EX-32
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including without
limitation Section 2.3(a) hereof, a U.S. Letter of Credit issued hereunder may
contain a statement to the effect that such U.S. Letter of Credit is issued
for the account of a Subsidiary of Airgas, provided that notwithstanding
such statement, Airgas shall be the actual account party for all purposes of
this Credit Agreement for such U.S. Letter of Credit and such statement shall
not affect Airgas' reimbursement obligations hereunder with respect to such
U.S. Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any U.S. Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new U.S. Letter of Credit hereunder.
(h) Uniform Customs and Practices. The U.S. Issuing Lender may have
the U.S. Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the International
Chamber of Commerce (the "UCP"), in which case the UCP may be incorporated
therein and deemed in all respects to be a part thereof.
(i) Indemnification; Nature of U.S. Issuing Lender's Duties.
(i) Airgas agrees to indemnify and hold harmless the U.S. Issuing
Lender, each other U.S. Lender, the U.S. Agent and each of their
respective officers, directors, affiliates, employees or agents (the
"Indemnitees") from and against any and all claims and damages, losses,
liabilities, costs and expenses which the Indemnitees may incur (or which may
be claimed against any Indemnitee) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any U.S.
Letter of Credit; provided that Airgas shall not be required to indemnify the
Indemnitees for any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, (A) caused by the willful misconduct or
gross negligence of any Indemnitee in determining whether a request presented
under any U.S. Letter of Credit complied with the terms of such U.S. Letter of
Credit or (B) caused by the U.S. Issuing Lender's failure to pay under any
U.S. Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of such U.S. Letter of Credit (unless
such payment is prohibited by any law, regulation, court order or decree).
(ii) Airgas agrees, as between Airgas and the U.S. Issuing Lender,
Airgas shall assume all risks of the acts, omissions or misuse of any
U.S. Letter of Credit by the beneficiary thereof.
(iii) The U.S. Issuing Lender shall not, in any way, be liable for
any failure by the U.S. Issuing Lender or anyone else to pay any drawing under
any U.S. Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the U.S. Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of Airgas contained in subsection (d) above. The
obligations of Airgas under this subsection (i) shall survive the termination
of this Credit Agreement. No act or omissions of any current or prior
beneficiary of a U.S. Letter of Credit shall in any way affect or impair the
rights of the U.S. Issuing Lender to enforce any right, power or benefit under
this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), Airgas shall have no obligation to indemnify the U.S.
Issuing Lender in respect of any liability incurred by the U.S. Issuing Lender
(A) arising out of the gross negligence or willful misconduct of the U.S.
Issuing Lender, or (B) caused by the U.S. Issuing Lender's failure to pay
<PAGE> EX-33
under any U.S. Letter of Credit after presentation to it of a request strictly
complying with the terms and conditions of such U.S. Letter of Credit, as
determined by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
(j) Responsibility of U.S. Issuing Lender. It is expressly understood
and agreed that the obligations of the U.S. Issuing Lender hereunder to the
U.S. Lenders are only those expressly set forth in this Credit Agreement and
that the U.S. Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 2.3 shall
be deemed to prejudice the right of any U.S. Lender to recover from the U.S.
Issuing Lender any amounts made available by such U.S. Lender to the U.S.
Issuing Lender pursuant to this Section 2.3 in the event that it is determined
by a court of competent jurisdiction that the payment with respect to a U.S.
Letter of Credit constituted gross negligence or willful misconduct on the
part of the U.S. Issuing Lender.
(k) Conflict with U.S. LOC Documents. In the event of any conflict
between this Credit Agreement and any U.S. LOC Document (including any letter
of credit application), this Credit Agreement shall control.
2.4 U.S. Swingline Loan Subfacility.
(a) U.S. Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties herein set
forth, the U.S. Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by Airgas in U.S. Dollars to Airgas
(each a "U.S. Swingline Loan" and, collectively, the "U.S. Swingline Loans")
from time to time from the Closing Date until the Termination Date for the
purposes hereinafter set forth; provided, however, (i) the aggregate principal
amount of U.S. Swingline Loans outstanding at any time shall not exceed
FIFTEEN MILLION U.S. DOLLARS (U.S.$15,000,000) (the "U.S. Swingline Committed
Amount"), and (ii) the aggregate principal amount of outstanding Revolving
U.S. Loans plus the aggregate principal amount of outstanding Competitive U.S.
Loans plus the aggregate principal amount of outstanding U.S. Swingline Loans
plus U.S. LOC Obligations outstanding shall not exceed the Revolving U.S.
Committed Amount. U.S. Swingline Loans hereunder shall be made as U.S. Base
Rate Loans or Quoted Rate U.S. Swingline Loans as Airgas may request in
accordance with the provisions of this Section 2.4, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) U.S. Swingline Loan Advances.
(i) Notices; Disbursement. Whenever Airgas desires a U.S.
Swingline Loan advance hereunder its duly authorized officer or representative
shall give written notice (or telephone notice promptly confirmed in writing)
to the U.S. Swingline Lender not later than 2:00 P.M. (Charlotte, North
Carolina time) on the Business Day of the requested U.S. Swingline Loan
advance. Each such notice shall be irrevocable and shall specify (A) that a
U.S. Swingline Loan advance is requested, (B) the date of the requested
U.S. Swingline Loan advance (which shall be a Business Day) and (C) the
principal amount of the U.S. Swingline Loan advance requested. Each U.S.
Swingline Loan shall be made as a U.S. Base Rate Loan or a Quoted Rate U.S.
Swingline Loan and shall have such maturity date as the U.S. Swingline Lender
and Airgas shall agree upon receipt by the U.S. Swingline Lender of any such
notice from Airgas. The U.S. Swingline Lender shall credit the funds
requested to an Airgas account maintained with the Swingline Lender by 3:00
P.M. (Charlotte, North Carolina time) on the Business Day of the requested
borrowing.
<PAGE> EX-34
(ii) Minimum Amounts. Each U.S. Swingline Loan advance shall be
in a minimum principal amount of U.S.$100,000 and in integral multiples
thereof (or the remaining amount of the U.S. Swingline Committed Amount, if
less).
(iii) Repayment of U.S. Swingline Loans. The principal amount of
all U.S. Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the U.S. Swingline Lender and Airgas with respect
to such U.S. Swingline Loan (which maturity date shall not be a date more than
thirty (30) days from the date of advance thereof) or (B) the Termination
Date. The U.S. Swingline Lender may, at any time, in its sole discretion, by
written notice to Airgas and the U.S. Lenders, demand repayment of its U.S.
Swingline Loans by way of a Revolving U.S. Loan advance, in which case Airgas
shall be deemed to have requested a Revolving U.S. Loan advance comprised
solely of U.S. Base Rate Loans in the amount of such U.S. Swingline Loans;
provided, however, that any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the occurrence
of any Event of Default described in Section 9.1 (or if such date is not a
Business Day, the first Business Day succeeding such date) and upon
acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each U.S. Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving U.S.
Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (I) the amount of such borrowing may not comply with
the minimum amount for advances of Revolving U.S. Loans otherwise required
hereunder, (II) whether any conditions specified in Section 5.2 are then
satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving U.S. Loan to be
made by the time otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Revolving U.S. Loans are otherwise permitted to
be made hereunder or (VI) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such borrowing. In the
event that any Revolving U.S. Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
Airgas), then each U.S. Lender hereby agrees that it shall forthwith purchase
(as of the date such borrowing would otherwise have occurred, but adjusted for
any payments received from Airgas on or after such date and prior to such
purchase) from the U.S. Swingline Lender such participations in the
outstanding U.S. Swingline Loans as shall be necessary to cause each such U.S.
Lender to share in such U.S. Swingline Loans ratably based upon its U.S.
Commitment Percentage of the Revolving U.S. Committed Amount (determined
before giving effect to any termination of the Commitments pursuant to Section
4.4), provided that (A) all interest payable on the U.S. Swingline Loans shall
be for the account of the U.S. Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing U.S.
Lender shall be required to pay to the U.S. Swingline Lender, to the extent
not paid to the U.S. Swingline Lender by Airgas in accordance with the terms
of subsection (c)(ii) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon which
such borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to the Federal Funds Rate.
(c) Interest on U.S. Swingline Loans. (i) Subject to the provisions of
Section 4.1, each U.S. Swingline Loan shall bear interest as follows:
(A) U.S. Base Rate Loans. If such U.S. Swingline Loan is a U.S.
Base Rate Loan, at a per annum rate (computed on the basis of the actual
number of days elapsed over a year of 365 days) equal to the U.S. Base Rate;
and
<PAGE> EX-35
(B) Quoted Rate U.S. Swingline Loans. If such U.S. Swingline
Loan is a Quoted Rate U.S. Swingline Loan, at a per annum rate (computed on
the basis of the actual number of days elapsed over a year of 360 days) equal
to the Quoted Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in this
Credit Agreement, in the event that the principal amount of any Quoted Rate
U.S. Swingline Loan is not repaid on the last day of the Interest Period for
such Loan, then such Loan shall be automatically converted into a U.S. Base
Rate Loan at the end of such Interest Period.
(ii) Payment of Interest. Interest on U.S. Swingline Loans shall
be payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).
(d) U.S. Swingline Note. The U.S. Swingline Loans shall be evidenced
by a duly executed promissory note of Airgas to the U.S. Swingline Lender in
an original principal amount equal to the U.S. Swingline Committed Amount
substantially in the form of Schedule 2.4(d).
2.5 364-Day Revolving Loans.
(a) 364-Day Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each U.S. Lender severally agrees to make available to Airgas such
U.S. Lender's U.S. Commitment Percentage of 364-Day revolving credit loans
requested by Airgas in U.S. Dollars ("364-Day Revolving Loans") from
time to time from the Closing Date until the Termination Date, or such earlier
date as the 364-Day Revolving Commitments shall have been terminated as
provided herein for the purposes hereinafter set forth; provided, however,
that the sum of the aggregate principal amount of outstanding 364-Day
Revolving Loans shall not exceed ONE HUNDRED MILLION U.S. DOLLARS
(U.S.$100,000,000) (as such aggregate maximum amount may be reduced from time
to time as provided in Section 4.4, the "364-Day Revolving Committed Amount");
provided, further, (i) with regard to each U.S. Lender individually, such U.S.
Lender's outstanding 364-Day Revolving Loans shall not exceed such U.S.
Lender's U.S. Commitment Percentage of the 364-Day Revolving Committed Amount
and (ii) the aggregate principal amount of outstanding 364-Day Revolving Loans
shall not exceed the 364-Day Revolving Committed Amount. 364-Day Revolving
Loans may consist of U.S. Base Rate Loans or Eurodollar Loans, or a
combination thereof, as Airgas may request, and may be repaid and reborrowed
in accordance with the provisions hereof; provided, however, that no more than
11 Eurodollar Loans shall be outstanding hereunder at any time. 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. 364-Day Revolving Loans
hereunder (other than any 364-Day Revolving Loans which have been converted to
term loans pursuant to Section 2.5(f)) may be repaid and reborrowed in
accordance with the provisions hereof.
(b) 364-Day Revolving Loan Borrowings.
(i) Notice of Borrowing. Airgas (by its duly authorized officers
or representatives) shall request a 364-Day Revolving Loan borrowing by
written notice (or telephone notice promptly confirmed in writing) to the U.S.
Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing in the case of U.S. Base Rate Loans,
and on the third Business Day prior to the date of the requested borrowing in
the case of Eurodollar Loans. Each such request for borrowing shall be
<PAGE> EX-36
irrevocable and shall specify (A) that a 364-Day Revolving Loan is requested,
(B) the date of the requested borrowing (which shall be a Business Day), (C)
the aggregate principal amount to be borrowed, and (D) whether the borrowing
shall be comprised of U.S. Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Period(s)
therefor. If Airgas shall fail to specify in any such Notice of Borrowing (I)
an applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month, or
(II) the type of 364-Day Revolving Loan requested, then such notice shall be
deemed to be a request for a U.S. Base Rate Loan hereunder. The U.S. Agent
shall give notice to each affected U.S. Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.5(b)(i), specifying the
contents thereof and each such U.S. Lender's share of any borrowing to be made
pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or U.S. Base Rate Loan
that is a 364-Day Revolving Loan shall be in a minimum aggregate principal
amount of U.S.$5,000,000 and integral multiples of U.S.$1,000,000 in excess
thereof (or the remaining amount of the 364-Day Revolving Committed Amount, if
less).
(iii) Advances. Each U.S. Lender will make its U.S. Commitment
Percentage of each 364-Day Revolving Loan borrowing available to the U.S.
Agent for the account of Airgas as specified in Section 4.14, or in such other
manner as the U.S. Agent may specify in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing in U.S. Dollars and in funds immediately available to the U.S.
Agent. Such borrowing will then be made available to Airgas by the U.S.
Agent by crediting the account of Airgas on the books of the main office of
the U.S. Agent in Charlotte, North Carolina with the aggregate of the amounts
made available to the U.S. Agent by the U.S. Lenders and in like funds as
received by the U.S. Agent.
(c) Repayment. The principal amount of all 364-Day Revolving Loans
shall be due and payable in full on the Termination Date applicable to
Revolving U.S. Loans.
(d) Interest. Subject to the provisions of Section 4.1,
(i) U.S. Base Rate Loans. During such periods as 364-Day
Revolving Loans shall be comprised in whole or in part of U.S. Base Rate
Loans, such U.S. Base Rate Loans shall bear interest at a per annum rate equal
to the U.S. Base Rate; and
(ii) Eurodollar Loans. During such periods as 364-Day Revolving
Loans shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus the Applicable Percentage.
Interest on 364-Day Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
(e) 364-Day Revolving Notes. The 364-Day Revolving Loans made by each
U.S. Lender shall be evidenced by a duly executed promissory note of Airgas to
such U.S. Lender in an original principal amount equal to such U.S. Lender's
U.S. Commitment Percentage of the 364-Day Revolving Committed Amount and in
substantially the form of Schedule 2.5(e).
<PAGE> EX-37
(f) Extension of 364-Day Revolving Loan Facility. Upon written request
of Airgas delivered to the U.S. Agent not more than 60 days nor less than 30
days prior to the then current Termination Date for 364-Day Revolving Loans,
each U.S. Lender in its sole discretion may (but shall not be obligated to)
agree by not more than 30 days prior to the then current Termination
Date to extend the then effective Termination Date with respect to such U.S.
Lender's 364-Day Revolving Commitment for a period of 364-days (an "Extending
U.S. Lender"). Any failure to respond or failure to provide an affirmative
response shall be deemed to be a response in the negative to such request. In
the event that any U.S. Lender chooses to extend the Termination Date for such
a 364-day period, notice shall be given by the U.S. Agent to Airgas no more
than 30 nor less than 25 days prior to the then effective Termination Date.
The principal amounts of all outstanding 364-Day Revolving Loans representing
364-Day Revolving Commitments of U.S. Lenders not extending their respective
Commitments pursuant to this Section 2.5(f) shall convert into term loans
which shall be due and payable in accordance with Section 2.5(c). The
principal amounts of all outstanding 364-Day Revolving Loans representing
364-Day Revolving Commitments of U.S. Lenders electing to extend their
respective Commitments pursuant to this Section 2.5(f) shall, at the end of
the extension period, convert into term loans which shall be due and payable
in accordance with Section 2.5(c).
SECTION 3
CANADIAN DOLLAR CREDIT FACILITIES
3.1 Revolving Canadian Loans.
(a) Revolving Canadian Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each Canadian Lender severally and not jointly agrees to make
available to each Canadian Borrower, for its own account, such Canadian
Lender's Canadian Commitment Percentage of revolving credit loans requested by
the Canadian Borrowers in Canadian Dollars ("Revolving Canadian Loans") from
time to time from the Closing Date until the Termination Date, or such earlier
date as the Revolving Canadian Commitments shall have been terminated as
provided herein for the purposes hereinafter set forth; provided, however,
that the sum of the aggregate principal amount of outstanding Revolving
Canadian Loans shall not exceed ONE HUNDRED MILLION CANADIAN DOLLARS
(C$100,000,000) (as such aggregate maximum amount may be increased or reduced
from time to time as provided in Section 4.4, the "Revolving Canadian
Committed Amount"); provided, further, (i) with regard to each Canadian Lender
individually, outstanding Revolving Canadian Loans of such Canadian Lender
plus the Participation Interests in Canadian LOC Obligations of such Canadian
Lender plus the BA Outstandings of such Canadian Lender shall not exceed such
Canadian Lender's Canadian Commitment Percentage of the Revolving Canadian
Committed Amount and (ii) with regard to the Canadian Lenders collectively,
the aggregate principal amount of outstanding Revolving Canadian Loans plus
the aggregate principal amount of outstanding Canadian Swingline Loans plus
Canadian LOC Obligations outstanding plus the BA Outstandings shall not exceed
the Revolving Canadian Committed Amount. Revolving Canadian Loans hereunder
may be repaid and reborrowed in accordance with the provisions hereof.
(b) Revolving Canadian Loan Borrowings.
(i) Notice of Borrowing. Each Canadian Borrower (by its duly
authorized officers or representatives) shall request a Revolving Canadian
Loan borrowing by Notice of Borrowing (or telephone notice promptly confirmed
by delivery of a Notice of Borrowing) to the Canadian Agent not later than
11:00 A.M. (Toronto, Ontario time) on the Business Day prior to the date of
<PAGE> EX-38
the requested borrowing. Each such request for borrowing shall be irrevocable
and shall specify (A) that a Revolving Canadian Loan is requested, (B) the
date of the requested borrowing (which shall be a Business Day) and (C) the
aggregate principal amount to be borrowed. The Canadian Agent shall give
notice to each affected Canadian Lender promptly upon receipt of each Notice
of Borrowing pursuant to this Section 3.1(b)(i), specifying the contents
thereof and each such Canadian Lender's share of any borrowing to be made
pursuant thereto.
(ii) Minimum Amounts. Each Revolving Canadian Loan shall be in a
minimum aggregate principal amount of C$1,500,000 and integral multiples
of C$100,000 in excess thereof (or the remaining amount of the Revolving
Canadian Committed Amount, if less).
(iii) Advances. Each Canadian Lender will make its Canadian
Commitment Percentage of each Revolving Canadian Loan borrowing available to
the Canadian Agent for the account of the particular Canadian Borrower as
specified in Section 4.14, or in such other manner as the Canadian Agent may
specify in writing, by 1:00 P.M. (Toronto, Ontario time) on the date specified
in the applicable Notice of Borrowing in Canadian Dollars and in funds
immediately available to the Canadian Agent. Such borrowing will then be made
available to the particular Canadian Borrower by the Canadian Agent by
crediting the account of such Canadian Borrower on the books of the main
office of the Canadian Agent in Toronto, Ontario with the aggregate of the
amounts made available to the Canadian Agent by the Canadian Lenders and in
like funds as received by the Canadian Agent.
(c) Repayment. The principal amount of all Revolving Canadian Loans
shall be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 4.1, Revolving
Canadian Loans shall bear interest at a per annum rate equal to the Canadian
Base Rate. Interest on Revolving Canadian Loans shall be payable monthly in
arrears on each applicable Interest Payment Date (or at such other times as
may be specified herein).
(e) Revolving Canadian Notes. The Revolving Canadian Loans made by
each Canadian Lender shall be evidenced by a duly executed promissory note of
the particular Canadian Borrower to such Canadian Lender in an original
principal amount equal to such Canadian Lender's Canadian Commitment
Percentage of the Revolving Canadian Committed Amount and in substantially
the form of Schedule 3.1(e).
3.2 Canadian Swingline Loan Subfacility.
(a) Canadian Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties herein set
forth, each Canadian Borrower may, in its individual capacity, obtain
revolving credit loans in Canadian Dollars from the Canadian Swingline Lender,
in its individual capacity (each a "Canadian Swingline Loan" and,
collectively, the "Canadian Swingline Loans"), from time to time from the
Closing Date until the Termination Date (i) by written notice (or telephone
notice promptly confirmed in writing) from such Canadian Borrower (by its duly
authorized officers or representatives) to the Canadian Swingline Lender not
later than 2:00 P.M. (Toronto, Canada time) on the Business Day of the
requested Canadian Swingline Loan advance (in which case the Canadian
Swingline Lender shall credit the funds requested to the applicable Operating
Account by 3:00 P.M. (Toronto, Canada time) on the Business Day of the
requested borrowing) or (ii) by way of overdraft in the Canadian Dollar
operating accounts maintained by such Canadian Borrower with the Canadian
Swingline Lender (collectively, the "Operating Accounts"), for the purposes
<PAGE> EX-39
hereinafter set forth; provided, however, (A) the aggregate principal amount
of Canadian Swingline Loans outstanding at any time shall not exceed FIVE
MILLION CANADIAN DOLLARS (C$5,000,000) (the "Canadian Swingline Committed
Amount"), and (B) the aggregate principal amount of outstanding Revolving
Canadian Loans plus the aggregate principal amount of outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus the BA
Outstandings shall not exceed the Revolving Canadian Committed Amount. Unless
the Canadian Borrowers have made prior arrangements with the Canadian
Swingline Lender (including without limitation by requesting a Revolving
Canadian Loan), the Canadian Swingline Lender may return any debit from an
Operating Account that, if paid, would result in the aggregate principal
amount of outstanding Canadian Swingline Loans exceeding the Canadian
Swingline Committed Amount if (1) any Default or Event of Default then exists
or (2) if the applicable Canadian Borrower does not, on or before the first
Business Day after receipt by such Canadian Borrower of notice of such excess
from the Canadian Swingline Lender, deposit money or request a Revolving
Canadian Loan sufficient to cover such debit. Canadian Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Repayment of Canadian Swingline Loans. Each Canadian Borrower
hereby promises to repay the principal amount of each Canadian Swingline Loan
taken by such Canadian Borrower on the earlier of (A) the maturity date agreed
to by the Canadian Swingline Lender and such Canadian Borrower with respect to
such Canadian Swingline Loan or (B) the Termination Date. The Canadian
Swingline Lender may, at any time, in its sole discretion, by written notice
to the Canadian Borrower and the Canadian Lenders, demand repayment of its
Canadian Swingline Loans by way of a Revolving Canadian Loan advance, in which
case the Canadian Borrower shall be deemed to have requested a Revolving
Canadian Loan advance in the amount of such Canadian Swingline Loans;
provided, however, that such a demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the occurrence
of any Event of Default described in Section 9.1 (or if such date is not a
Business Day, the first Business Day succeeding such date) and upon
acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Canadian Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving Canadian
Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (I) the amount of such borrowing may not comply with
the minimum amount for advances of Revolving Canadian Loans otherwise required
hereunder, (II) whether any conditions specified in Section 5.2 are then
satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for a Revolving Canadian
Loan to be made by the time otherwise required hereunder, (V) whether the date
of such borrowing is a date on which Revolving Canadian Loans are otherwise
permitted to be made hereunder or (VI) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such
borrowing.
(c) Interest on Canadian Swingline Loans.
(i) Interest Rate. Subject to the provisions of Section 4.1,
each Canadian Swingline Loan shall bear interest at a per annum rate (computed
on the basis of the actual number of days elapsed over a year of 365 days)
equal to the Canadian Base Rate; and
(ii) Payment of Interest. With respect to each Canadian Swingline
Loan taken by a Canadian Borrower, such Canadian Borrower hereby promises to
pay all interest on the outstanding principal amount of such Canadian
Swingline Loan in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).
<PAGE> EX-40
3.3 Canadian Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
Canadian LOC Documents, if any, and any other terms and conditions which the
Canadian Issuing Lender may reasonably require, the Canadian Lenders will
participate in the issuance by the Canadian Issuing Lender from time to time
of such Canadian Letters of Credit in Canadian Dollars from the Closing Date
until the Termination Date as a Canadian Borrower may request, in a form
acceptable to the Canadian Issuing Lender; provided, however, that (i) the
Canadian LOC Obligations outstanding shall not at any time exceed FIFTY
MILLION CANADIAN DOLLARS (C$50,000,000) (the "Canadian LOC Committed Amount")
and (ii) the sum of the aggregate principal amount of outstanding Canadian
Revolving Loans plus the aggregate principal amount of outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus BA Outstandings
shall not at any time exceed the aggregate Revolving Canadian Committed
Amount. No Canadian Letter of Credit shall (x) have an original expiry date
more than one year from the date of issuance or (y) as originally issued or as
extended, have an expiry date extending beyond the Termination Date. Each
Canadian Letter of Credit shall comply with the related Canadian LOC
Documents. The issuance and expiry date of each Canadian Letter of Credit
shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Canadian
Letter of Credit shall be submitted by the applicable Canadian Borrower (by
its duly authorized officers or representatives) to the Canadian Issuing
Lender at least three (3) Business Days prior to the requested date of
issuance. The Canadian Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to each of the Canadian Lenders a
detailed report specifying the Canadian Letters of Credit which are then
issued and outstanding and any activity with respect thereto which may have
occurred since the date of the prior report, and including therein, among
other things, the beneficiary, the face amount and expiry date as well as any
payments or expirations which may have occurred.
(c) Participation. Each Canadian Lender, upon issuance of a Canadian
Letter of Credit (or, in the case of each Existing Canadian Letter of Credit,
on the Closing Date), shall be deemed to have purchased without recourse a
risk participation from the Canadian Issuing Lender in such Canadian Letter of
Credit and the obligations arising thereunder, in each case in an amount equal
to its pro rata share of the obligations under such Canadian Letter of Credit
(based on the respective Canadian Commitment Percentages of the Canadian
Lenders) and shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the Canadian
Issuing Lender therefor and discharge when due, its pro rata share of the
obligations arising under such Canadian Letter of Credit. Without limiting
the scope and nature of each Canadian Lender's participation in any Canadian
Letter of Credit, to the extent that the Canadian Issuing Lender has not been
reimbursed as required hereunder or under any such Canadian Letter of Credit,
each such Canadian Lender shall pay to the Canadian Issuing Lender its pro
rata share of such unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Canadian Lender to so reimburse
the Canadian Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of each Canadian Borrower to reimburse the Canadian
Issuing Lender under any Canadian Letter of Credit issued for the account of
such Canadian Borrower, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Canadian
Letter of Credit, the Canadian Issuing Lender will promptly notify the
applicable Canadian Borrower. Unless the applicable Canadian Borrower shall
<PAGE> EX-41
immediately notify the Canadian Issuing Lender that such Canadian Borrower
intends to otherwise reimburse the Canadian Issuing Lender for such drawing,
such Canadian Borrower shall be deemed to have requested that the Canadian
Lenders make a Revolving Canadian Loan in the amount of the drawing as
provided in subsection (e) hereof on the related Canadian Letter of Credit,
the proceeds of which will be used to satisfy the related reimbursement
obligations. Each Canadian Borrower promises to reimburse the Canadian
Issuing Lender on the day of drawing under any Canadian Letter of Credit
issued for the account of such Canadian Borrower (either with the proceeds of
a Revolving Canadian Loan obtained hereunder or otherwise) in same day funds.
If the applicable Canadian Borrower shall fail to reimburse the Canadian
Issuing Lender (either with the proceeds of a Revolving Canadian Loan obtained
hereunder or otherwise), the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Canadian Base Rate plus two percent
(2%). The reimbursement obligations of each Canadian Borrower hereunder shall
be absolute and unconditional under all circumstances irrespective of any
rights of setoff, counterclaim or defense to payment such Canadian Borrower
may claim or have against the Canadian Issuing Lender, the U.S. Agent, the
Canadian Agent, the Canadian Lenders, the beneficiary of the Canadian Letter
of Credit drawn upon or any other Person, including without limitation any
defense based on any failure of such Canadian Borrower to receive
consideration or the legality, validity, regularity or unenforceability
of the Canadian Letter of Credit. The Canadian Issuing Lender will promptly
notify the other Canadian Lenders of the amount of any unreimbursed drawing
under any Canadian Letter of Credit and each Canadian Lender shall promptly
pay to the Canadian Agent for the account of the Canadian Issuing Lender in
Canadian Dollars and in immediately available funds, the amount of such
Canadian Lender's pro rata share of such unreimbursed drawing. Such payment
shall be made on the day such notice is received by such Canadian Lender from
the Canadian Issuing Lender if such notice is received at or before 2:00 P.M.
(Toronto, Canada time) otherwise such payment shall be made at or before 12:00
NOON (Toronto, Canada time) on the Business Day next succeeding the day such
notice is received. If such Canadian Lender does not pay such amount to the
Canadian Issuing Lender in full upon such request, such Canadian Lender shall,
on demand, pay to the Canadian Agent for the account of the Canadian Issuing
Lender interest on the unpaid amount during the period from the date of such
drawing until such Canadian Lender pays such amount to the Canadian Issuing
Lender in full at a rate per annum equal to the Canadian Base Rate. Each
Canadian Lender's obligation to make such payment to the Canadian Issuing
Lender, and the right of the Canadian Issuing Lender to receive the same,
shall be absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit Agreement or
the Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the obligations of Airgas hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Canadian Lender to
the Canadian Issuing Lender, such Canadian Lender shall, automatically and
without any further action on the part of the Canadian Issuing Lender or such
Canadian Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Canadian Issuing Lender) in the related unreimbursed drawn portion of the
Canadian LOC Obligation and in the interest thereon and in the related
Canadian LOC Documents, and shall have a claim against the Canadian Borrower
with respect thereto.
(e) Repayment with Revolving Canadian Loans. On any day on which a
Canadian Borrower shall have requested, or shall be deemed to have requested,
a Revolving Canadian Loan advance to reimburse a drawing under a Canadian
Letter of Credit, the Canadian Agent shall give notice to the Canadian Lenders
that a Revolving Canadian Loan advance has been requested or deemed requested
by such Canadian Borrower to be made in connection with a drawing under a
<PAGE> EX-42
Canadian Letter of Credit, in which case a Revolving Canadian Loan shall be
immediately made to such Canadian Borrower by all Canadian Lenders
(notwithstanding any termination of the Commitments pursuant to Section 9.2)
pro rata based on the respective Canadian Commitment Percentages of the
Canadian Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2) and the proceeds thereof shall be paid
directly to the Canadian Issuing Lender for application to the respective
Canadian LOC Obligations. Each such Canadian Lender hereby irrevocably agrees
to make its pro rata share of each such Revolving Canadian Loan immediately
upon any such request or deemed request in the amount, in the manner and on
the date specified in the preceding sentence notwithstanding (i) the amount of
such borrowing may not comply with the minimum amount for advances of
Revolving Canadian Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) that any such request or
deemed request for Revolving Canadian Loan is not made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Canadian Loans are otherwise permitted to be made hereunder or (vi)
any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving
Canadian Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to a Canadian Borrower or
Airgas), then each such Canadian Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from any Canadian Borrower on or after such
date and prior to such purchase) from the Canadian Issuing Lender such
participation in the outstanding Canadian LOC Obligations as shall be
necessary to cause each such Canadian Lender to share in such Canadian LOC
Obligations ratably (based upon the respective Canadian Commitment Percentages
of the Canadian Lenders (determined before giving effect to any termination of
the Commitments pursuant to Section 9.2)), provided that at the time any
purchase of participation pursuant to this sentence is actually made, the
purchasing Canadian Lender shall be required to pay to the Canadian Issuing
Lender, to the extent not paid to the Issuer by Airgas in accordance with the
terms of subsection (d) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon which
such borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at a rate equal to the Canadian Base Rate.
(f) Renewal, Extension. The renewal or extension of any Canadian
Letter of Credit shall, for purposes hereof, be treated in all respects the
same as the issuance of a new Canadian Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Canadian Issuing Lender may
have the Canadian Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP shall be
expressly incorporated therein and deemed in all respects to be a part
thereof.
(h) Indemnification; Nature of Canadian Issuing Lender's Duties.
(i) Each Canadian Borrower agrees to indemnify and hold harmless
the Canadian Issuing Lender, each other Canadian Lender, the Canadian Agent,
the U.S. Agent and each of their respective officers, directors, affiliates,
employees or agents (the "Indemnitees") from and against any and all claims
and damages, losses, liabilities, costs and expenses which the Indemnitees may
incur (or which may be claimed against any Indemnitee) by any Person by reason
of or in connection with the issuance or transfer of or payment or failure to
pay under any Canadian Letter of Credit issued for the account of such
<PAGE> EX-43
Canadian Borrower; provided that the Canadian Borrowers shall not be required
to indemnify the Indemnitees for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, (A) caused by the
willful misconduct or gross negligence of any Indemnitee in determining
whether a request presented under any Canadian Letter of Credit complied with
the terms of such Canadian Letter of Credit or (B) caused by the Canadian
Issuing Lender's failure to pay under any Canadian Letter of Credit after the
presentation to it of a request strictly complying with the terms and
conditions of such Canadian Letter of Credit (unless such payment is
prohibited by any law, regulation, court order or decree).
(ii) Each Canadian Borrower agrees, as between such Canadian
Borrower and the Canadian Issuing Lender, such Canadian Borrower shall
assume all risks of the acts, omissions or misuse by the beneficiary of any
Canadian Letter of Credit issued for the account of such Canadian Borrower.
(iii) The Canadian Issuing Lender shall not, in any way, be liable
for any failure by the Canadian Issuing Lender or anyone else to pay any
drawing under any Canadian Letter of Credit as a result of any action by any
Governmental Authority or any other cause beyond the control of the Canadian
Issuing Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Canadian Borrowers contained in subsection
(d) above. The obligations of the Canadian Borrowers under this subsection
(h) shall survive the termination of this Credit Agreement. No acts or
omissions of any current or prior beneficiary of a Canadian Letter of Credit
shall in any way affect or impair the rights of the Canadian Issuing Lender to
enforce any right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Canadian Borrowers shall have no obligation to
indemnify the Canadian Issuing Lender in respect of any liability incurred by
the Canadian Issuing Lender (A) arising out of the gross negligence or willful
misconduct of the Canadian Issuing Lender, or (B) caused by the Canadian
Issuing Lender's failure to pay under any Canadian Letter of Credit after
presentation to it of a request strictly complying with the terms and
conditions of such Canadian Letter of Credit, as determined by a court of
competent jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree.
(i) Responsibility of Canadian Issuing Lender. It is expressly
understood and agreed that the obligations of the Canadian Issuing Lender
hereunder to the Canadian Lenders are only those expressly set forth in this
Credit Agreement and that the Canadian Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that nothing
set forth in this Section 3.3 shall be deemed to prejudice the right of any
Canadian Lender to recover from the Canadian Issuing Lender any amounts made
available by such Canadian Lender to the Canadian Issuing Lender pursuant to
this Section 3.3 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Canadian Letter of Credit
constituted gross negligence or willful misconduct on the part of the Canadian
Issuing Lender.
(j) Conflict with Canadian LOC Documents. In the event of any conflict
between this Credit Agreement and any Canadian LOC Document (including any
letter of credit application), this Credit Agreement shall control.
<PAGE> EX-44
3.4 Bankers' Acceptances.
(a) Issuance. Subject to the terms and conditions hereof and any other
terms and conditions which a Canadian Lender may reasonably require (so long
as such terms and conditions do not impose any financial obligation on or
require any Lien (not otherwise contemplated by this Credit Agreement) to be
given by any Consolidated Party or conflict with any obligation of, or detract
from any action which may be taken by, any Canadian Borrower under this Credit
Agreement), each Canadian Lender agrees, severally and not jointly, at any
time and from time to time from the Closing Date to the Termination Date, to
create Bankers' Acceptances by accepting drafts of a Canadian Borrower
presented to it for acceptance in an amount equal to such Canadian Lender's
Commitment Percentage of such Bankers' Acceptances as a Canadian Borrower may
request on such date; provided, however, that the aggregate amount of
Revolving Canadian Loans outstanding plus the aggregate principal amount of
outstanding Canadian Swingline Loans plus Canadian LOC Obligations outstanding
plus the BA Outstandings may not exceed the Revolving Canadian Committed
Amount. Upon the acceptance of any draft of a Canadian Borrower pursuant
hereto, such Canadian Borrower shall pay to the Canadian Lender accepting the
same, in advance, the Acceptance Fee. Forthwith after each request for
drawdown of, continuation of or conversion into Banker's Acceptances, the
Canadian Agent shall notify each Canadian Lender of the amount and
denomination of the Bankers' Acceptances to be accepted by such Canadian
Lender. Canadian Borrower shall as soon as practical deliver to the
Canadian Agent a notice confirming the issuance of Bankers' Acceptances drawn
by it and specifying the net proceeds derived therefrom. For greater
certainty, with respect to each extension of credit by way of Bankers'
Acceptances from the Canadian Lenders, each Bankers' Acceptance shall have the
same term.
(b) General Provisions regarding Bankers' Acceptances.
(i) Any draft tendered by a Canadian Borrower for acceptance by a
Canadian Lender shall be payable in Canada, shall be in the standard form of
bankers' acceptance accepted by such Canadian Lender and shall have a term
ending on a Business Day not less than 30 days (or any earlier date, subject
to availability) or more than 180 days from the date of acceptance. Each
extension of credit by way of Bankers' Acceptances from the Canadian Lenders
shall be for the minimum aggregate principal amount of C$1,500,000 and in
multiples of C$100,000.
(ii) On presentation of a draft for acceptance the applicable Canadian
Borrower shall pay to the applicable Canadian Lender a stamping fee calculated
on the principal amount and for the term of the draft equal to the Applicable
Percentage.
(iii) All Bankers' Acceptances to be accepted by the Canadian Lenders
shall be obtained through the Canadian Agent. Each Canadian Lender agrees to
purchase at the Discount Rate each Bankers' Acceptance accepted by it and to
provide to the Canadian Agent for the account of the applicable Canadian
Borrower the discount proceeds less the stamping fee. A Canadian Lender may
hold, sell, rediscount or otherwise dispose of any or all Bankers' Acceptances
accepted and purchased by it.
(iv) The applicable Canadian Borrower shall provide for each of the
Bankers' Acceptances at their respective maturities at the Canadian Agent's
main branch in Toronto, Canada (either with the proceeds of a Revolving
Canadian Loan obtained hereunder or otherwise). The Canadian Borrowers will
continue to be required to provide as aforesaid for each of the Bankers'
Acceptances at maturity notwithstanding the fact that the applicable
Canadian Lender may be the holder of a Bankers' Acceptance previously issued
<PAGE> EX-45
by that Canadian Lender. Any amount owing in respect of any Bankers'
Acceptance which is not paid in accordance with the foregoing shall be subject
to the same terms as are applicable to Canadian Base Rate Loans, but be
payable on demand.
(v) In the event that demand is made on the Canadian Borrowers pursuant
to Section 9.2, the Canadian Borrowers who have then outstanding any Bankers'
Acceptance(s) shall forthwith pay to the Canadian Lenders an amount equal to
each such Canadian Lender's maximum potential liability under outstanding
Bankers' Acceptances stamped by it on behalf of the applicable Canadian
Borrower. Such amount shall be held by the Canadian Lenders for set-off
against future indebtedness owing by the applicable Canadian Borrower to the
Canadian Lenders in respect of such Bankers' Acceptance(s).
(vi) Each Canadian Borrower shall supply the Canadian Lenders with such
number of drafts executed and endorsed on behalf of such Canadian Borrower (by
its duly authorized officers or other representatives) (or by duly authorized
officers or other representatives of Airgas) as the Canadian Lenders may from
time to time reasonably request. The signatures of such officers may be
mechanically reproduced in facsimile and such facsimile signatures shall
be valid and binding on such Canadian Borrower as if they had been manually
signed by such officers. Notwithstanding that any of the individuals whose
manual or facsimile signature appears on any draft may no longer hold office
at the date thereof or at the date of its acceptance by a Canadian Lender
hereunder or at any time thereafter, any draft or Bankers' Acceptance signed
as provided for in this Section 3.4 shall be valid and binding on the
applicable Canadian Borrower. The Canadian Lenders will not be liable for
their failure to accept drafts pursuant to this Credit Agreement if such
failure is, in whole or in part, due to the failure of a Canadian Borrower to
provide drafts to a Canadian Lender in accordance with this Section 3.4. The
responsibility of a Canadian Lender in respect of the safekeeping of executed
drafts which are delivered to it for acceptance hereunder shall be limited to
the exercise of the same degree of care which such Canadian Lender gives to
its own property, provided that such Canadian Lender shall not be deemed to be
an insurer thereof. Each of the Canadian Borrowers hereby confirms each of
the Canadian Lenders shall be entitled to rely upon instructions provided by
Airgas regarding the completion of drafts which are delivered to it for
acceptance on behalf of any Canadian Borrower hereunder.
(vii) Each Canadian Borrower shall ensure that no Bankers' Acceptance it
draws has a maturity date beyond the Termination Date.
3.5 Guaranty of Canadian Borrowers' Obligations.
(a) Guaranty. The Guarantor hereby guarantees to each Lender and the
Agents as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Canadian Borrowers' Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in accordance with
the terms thereof. The Guarantor hereby further agrees that if any of the
Canadian Borrowers' Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Guarantor will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Canadian Borrowers'
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.
<PAGE> EX-46
(b) Obligations Unconditional. The obligations of the Guarantor under
Section 3.5(a) are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Credit
Documents, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Canadian Borrower Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section
3.5(b) that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances. The Guarantor agrees that it
shall have no right of subrogation, indemnity, reimbursement or contribution
against any Canadian Borrower or any other guarantor of the Canadian Borrower
Obligations for amounts paid under this Section 3.5 until such time as the
Lenders have been paid in full, all Commitments under this Credit Agreement
have been terminated and no Person or Governmental Authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Credit Documents. Without limiting
the generality of the foregoing, it is agreed that, to the fullest extent
permitted by law, the occurrence of any one or more of the following shall not
alter or impair the liability of the Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Canadian Borrowers' Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of
the Credit Documents or any other agreement or instrument referred to in the
Credit Documents shall be done or omitted;
(iii) the maturity of any of the Canadian Borrower Obligations
shall be accelerated, or any of the Canadian Borrower Obligations shall be
modified, supplemented or amended in any respect, or any right under any of
the Credit Documents or any other agreement or instrument referred to in the
Credit Documents shall be waived or any other guarantee of any of the Canadian
Borrower Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(iv) any of the Canadian Borrowers' Obligations shall be
determined to be void or voidable (including, without limitation, for the
benefit of any creditor of the Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of the
Guarantor).
With respect to its obligations hereunder, the Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Credit
Documents or any other agreement or instrument referred to in the Credit
Documents, or against any other Person under any other guarantee of, or
security for, any of the Canadian Borrowers' Obligations.
(c) Reinstatement. The obligations of the Guarantor under this Section
3.5 shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the Canadian
Borrowers' Obligations is rescinded or must be otherwise restored by any
holder of any of the Canadian Borrowers' Obligations, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, and the
<PAGE> EX-47
Guarantor agrees that it will indemnify the Canadian Agent and each Canadian
Lender on demand for all reasonable costs and expenses (including, without
limitation, fees and expenses of counsel) incurred by the Canadian
Agent or such Canadian Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency
or similar law.
(d) Certain Additional Waivers. Without limiting the generality of the
provisions of this Section 3.5, the Guarantor hereby specifically waives the
benefits of N.C. Gen. Stat. Sections 26-7 through 26-9, inclusive, to the extent
applicable. The Guarantor further agrees that it shall have no right of
recourse to security for the Canadian Borrowers' Obligations, except through
the exercise of the rights of subrogation pursuant to Section 3.5(b).
(e) Remedies. The Guarantor agrees that, to the fullest extent
permitted by law, as between the Guarantor, on the one hand, and the Canadian
Agent and the Canadian Lenders, on the other hand, the Canadian Borrowers'
Obligations may be declared to be forthwith due and payable as provided in
Section 9.2 (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 9.2) for purposes of
Section 3.5(a) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Canadian Borrowers' Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or the Canadian Borrowers'
Obligations being deemed to have become automatically due and payable), the
Canadian Borrowers' Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the Guarantor for purposes
of Section 3.5(a).
(f) Guarantee of Payment; Continuing Guarantee. The guarantee in this
Section 3.5 is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Canadian Borrowers' Obligations whenever
arising.
3.6 Reset Mechanism.
Each Canadian Lender agrees that it will, at any time or from time to
time, upon the request of the Canadian Agent, purchase portions of the
outstanding Revolving Canadian Loans, Canadian Swingline Loans, Canadian LOC
Obligations and BA Outstandings made available by the other Canadian Lenders
hereunder and make any other adjustments which may be necessary or
appropriate, in order that the amount of such outstanding Revolving Canadian
Loans, Canadian Swingline Loans, Canadian LOC Obligations and BA Outstandings
made available by the respective Canadian Lenders, as adjusted pursuant to
this Section 3.6, will be in the same proportions as the amount which each
Canadian Lender's Canadian Commitment Percentage bears to the total Canadian
Commitment Percentages of all the Canadian Lenders.
SECTION 4
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
4.1 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
<PAGE> EX-48
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 U.S. Base Rate).
4.2 Extension and Conversion.
(a) Airgas. Subject to the terms of Section 5.2, Airgas shall have the
option, on any Business Day, to extend existing Revolving U.S Loans or 364-Day
Revolving Loans into a subsequent permissible Interest Period or to convert
any such Loans into Loans of another interest rate type; provided, however,
that (i) except as provided in Section 4.8, Eurodollar Loans may be converted
into U.S. Base Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Loans may be extended, and U.S. 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 Sections 2.1(b)(ii),
2.5(b)(ii) and 3.1(b)(ii), (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), (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 and (vi) Competitive U.S. Loans and U.S. Swingline Loans may not be
extended or converted pursuant to this Section 4.2. Each such extension or
conversion shall be effected by Airgas by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to
the U.S. 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
U.S. 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 U.S. 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 Airgas of the matters
specified in subsections (ii), (iii), (iv) and (v) of Section 5.2. In the
event Airgas 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 U.S. Base Rate Loan at the end of the Interest
Period applicable thereto. The U.S. Agent shall give each U.S. Lender notice
as promptly as practicable of any such proposed extension or conversion
affecting any Loan.
(b) Canadian Borrowers. Subject to the terms of Section 5.2, a Canadian
Borrower shall have the option, on any Business Day, to convert a Canadian
Base Rate Loan into a Bankers' Acceptance, to continue a maturing Bankers'
Acceptance in accordance with Section 3.4 or to convert a maturing Bankers'
Acceptance into a Canadian Base Rate Loan; provided, however, (i) each such
continuation or conversion must be requested by such Canadian Borrower
pursuant to a written Notice of Extension/Conversion, in the form of Schedule
4.2, in compliance with the terms set forth below and (ii) such Canadian
Borrower must comply with all the requirements of Section 3.4, and (iii)
failure by such Canadian Borrower to properly continue a Bankers' Acceptance
shall be deemed a conversion to a Canadian Base Rate Loan. Each continuation
<PAGE> EX-49
or conversion must be requested by such Canadian Borrower no later than 10:00
a.m., Toronto, Ontario time, (A) the date of a requested conversion of a
Bankers' Acceptance to a Canadian Base Rate Loan or (B) three Business Days
prior to the date of a requested continuation of a Bankers' Acceptance or
conversion of a Canadian Base Rate Loan to a Bankers' Acceptance, in each case
pursuant to a written Notice of Extension/Conversion submitted to the Canadian
Agent which shall set forth (x) whether the Loans to be continued or converted
are Revolving Canadian Loans, (y) whether the Canadian Borrower wishes to
continue or convert such Loans and (z) if the request is to continue a
Bankers' Acceptance or convert a Canadian Base Rate Loan to a Bankers'
Acceptance, the maturity date applicable thereto.
4.3 Prepayments.
(a) Voluntary Prepayments. Loans may be prepaid in whole or in part
from time to time, subject to Section 4.11, but otherwise without premium or
penalty; provided, however, that (i) Eurodollar Loans and Competitive U.S.
Loans may only be prepaid on three Business Days' prior written notice to the
U.S. Agent, and specifying the applicable Loans to be prepaid; (ii) any
prepayment of Eurodollar Loans, Competitive U.S. Loans or Quoted Rate U.S.
Swingline Loans will be subject to Section 4.11; (iii) any portion of the
Revolving Canadian Committed Amount represented by a Bankers' Acceptance may
not be prepaid prior to the maturity of such Bankers' Acceptance; (iv) each
such partial prepayment of Loans shall be (A) in the case of Revolving
U.S. Loans and Competitive U.S. Loans, in a minimum principal amount of
U.S.$5,000,000 and integral multiples of U.S.$1,000,000 in excess thereof, (B)
in the case of Revolving Canadian Loans, in a minimum principal amount of
C$1,500,000 and integral multiples of C$100,000 in excess thereof and (C) in
the case of U.S. Swingline Loans, in a minimum principal amount of
U.S.$100,000 and integral multiples thereof. Subject to the foregoing terms,
amounts prepaid under this Section 4.3(a) shall be applied as the applicable
Credit Party may elect.
(b) Mandatory Prepayments.
(i) If at any time the sum of the aggregate principal amount of
outstanding Revolving U.S. Loans plus the aggregate principal amount of
outstanding Competitive U.S. Loans plus the aggregate principal amount of
outstanding U.S. Swingline Loans plus U.S. LOC Obligations outstanding shall
exceed the Revolving U.S. Committed Amount, Airgas shall prepay immediately
the outstanding principal balance on the Revolving U.S. Loans, Competitive
U.S. Loans and/or U.S. Swingline Loans (and after all Revolving U.S.
Loans, Competitive U.S. Loans and U.S. Swingline Loans have been repaid, pay
to the U.S. Agent additional cash in respect of U.S. LOC Obligations, to be
held by the U.S. Agent, for the benefit of the U.S. Lenders, in a cash
collateral account) in an amount sufficient to eliminate such excess.
(ii) If at any time the sum of the aggregate principal amount of
outstanding 364-Day Revolving Loans shall exceed the 364-Day Revolving
Committed Amount, Airgas shall prepay immediately the outstanding principal
balance on the 364-Day Revolving Loans in an amount sufficient to eliminate
such excess.
(iii) If at any time the sum of the aggregate principal amount of
outstanding Revolving Canadian Loans plus the aggregate principal amount of
outstanding Canadian Swingline Loans plus Canadian LOC Obligations plus the BA
Outstandings outstanding shall exceed the Revolving Canadian Committed Amount,
the Canadian Borrowers shall prepay immediately the outstanding principal
balance on the Revolving Canadian Loans or Canadian Swingline Loans (and,
after all Revolving Canadian Loans and Canadian Swingline Loans have been
repaid, pay to the Canadian Agent additional cash in respect of Canadian LOC
<PAGE> EX-50
Obligations and BA Outstandings, to be held by the Canadian Agent, for the
benefit of the Canadian Lenders, in a cash collateral account) in an amount
sufficient to eliminate such excess.
(c) General. All prepayments made pursuant to this Section 4.3 shall
be subject to Section 4.11 and shall (i) in the case of Airgas, unless Airgas
shall specify otherwise, be applied first to 364-Day Revolving Loans, second
to U.S. Swingline Loans, third to Revolving U.S. Loans and fourth to
Competitive U.S. Loans, and with respect to 364-Day Revolving Loans or
Revolving U.S. Loans, first to U.S. Base Rate Loans, if any, and then to
Eurodollar Loans in direct order of Interest Period maturities or (ii) in the
case of the Canadian Borrowers, unless the Canadian Borrowers shall specify
otherwise, be applied first to Canadian Swingline Loans, second to Revolving
Canadian Loans and third to the BA Outstandings in direct order of maturities.
Amounts prepaid may be reborrowed in accordance with the provisions hereof.
4.4 Termination and Reduction of Commitments; Increase of Commitments.
(a) Voluntary Reductions; Terminations.
(i) Airgas may from time to time permanently reduce or terminate
the Revolving U.S. Committed Amount in whole or in part (in minimum aggregate
amounts of U.S.$5,000,000 or in integral multiples of U.S.$1,000,000 in excess
thereof (or, if less, the full remaining amount of the Revolving U.S.
Committed Amount)) upon five Business Days' prior written notice to the U.S.
Agent. The Revolving U.S. Commitments of the U.S. Lenders, the U.S. Swingline
Commitment of the U.S. Swingline Lender and the U.S. LOC Commitment of the
U.S. Issuing Lender shall automatically terminate on the Termination Date;
(ii) Airgas may from time to time permanently reduce or terminate
the 364-Day Revolving Committed Amount in whole or in part (in minimum
aggregate amounts of U.S.$5,000,000 or in integral multiples of U.S.$1,000,000
in excess thereof (or, if less, the full remaining amount of the 364-Day
Revolving Committed Amount)) upon five Business Days' prior written notice to
the U.S. Agent. The 364-Day Revolving Commitments of the U.S. Lenders shall
automatically terminate on the Termination Date except to the extent that any
U.S. Lender has extended the Termination Date with respect to its 364-Day
Revolving Commitment pursuant to Section 2.5(f) hereof;
(iii) The Canadian Borrowers may from time to time permanently
reduce or terminate the Revolving Canadian Committed Amount in whole or in
part (in minimum aggregate amounts of C$1,500,000 or in integral multiples of
C$100,000 in excess thereof (or, if less, the full remaining amount of the
Revolving Canadian Committed Amount)) upon five Business Days' prior written
notice to the U.S. Agent and the Canadian Agent. The Revolving Canadian
Commitments of the Canadian Lenders, the Canadian Swingline Commitment of the
Canadian Swingline Lender and the Canadian LOC Commitment of the Canadian
Issuing Lender shall automatically terminate on the Termination Date;
provided, however, no such termination or reduction shall be made which would
cause (i) the aggregate principal amount of outstanding Revolving U.S. Loans
plus the aggregate principal amount of outstanding Competitive U.S. Loans plus
the aggregate principal amount of outstanding U.S. Swingline Loans plus U.S.
LOC Obligations outstanding to exceed the Revolving U.S. Committed Amount,
(ii) the aggregate principal amount of outstanding 364-Day Revolving Loans
to exceed the 364-Day Revolving Committed Amount or (iii) the aggregate
principal amount of outstanding Revolving Canadian Loans plus the aggregate
principal amount of outstanding Canadian Swingline Loans plus Canadian LOC
Obligations outstanding plus the BA Outstandings to exceed the Revolving
Canadian Committed Amount unless, concurrently with such termination
or reduction, the respective Loans are repaid to the extent necessary to
<PAGE> EX-51
eliminate such excess. The U.S. Agent shall promptly notify each affected
Lender of receipt by such U.S. Agent of any notice pursuant to this Section
4.4(a).
(b) Unused Fees.
(i) Airgas shall pay to the U.S. Agent for the account of the
U.S. Lenders in accordance with the terms of Section 4.5(a)(i), on the date of
each termination or reduction of the Revolving U.S. Committed Amount, the
Unused Revolving U.S. Commitment Fee accrued through the date of such
termination or reduction on the amount of the Revolving U.S. Committed Amount
so terminated or reduced.
(ii) Airgas shall pay to the U.S. Agent for the account of the
U.S. Lenders in accordance with the terms of Section 4.5(a)(ii), on the date
of each termination or reduction of the 364-Day Revolving Committed Amount,
the Unused 364-Day Revolving Commitment Fee accrued through the date of such
termination or reduction on the amount of the 364-Day Revolving Committed
Amount so terminated or reduced.
(iii) The Canadian Borrowers shall pay to the Canadian Agent for
the account of the Canadian Lenders in accordance with the terms of Section
4.5(a)(iii), on the date of each termination or reduction of the Revolving
Canadian Committed Amount, the Unused Revolving Canadian Commitment Fee
accrued through the date of such termination or reduction on the amount of the
Revolving Canadian Committed Amount so terminated or reduced.
(c) Increase in Commitments. The Credit Parties shall have the right
upon at least fifteen (15) Business Days' prior written notice to the U.S.
Agent to increase the Revolving U.S. Committed Amount and/or the Revolving
Canadian Committed Amount by the U.S. Dollar Amount of up to U.S.$150,000,000
in the aggregate, in one or more increases, at any time and from time to time
on or after the Closing Date, subject, however, in any such case, to
satisfaction of the following conditions precedent:
(i) no Default or Event of Default has occurred and is continuing
on the date on which such increase is to become effective;
(ii) the representations and warranties set forth in Section 6 of
this Credit Agreement shall be true and correct in all material respects on
and as of the date on which such increase is to become effective;
(iii) such increase shall be (A) in respect of any increase in the
Revolving U.S. Committed Amount, an integral multiple of U.S.$1,000,000 and
shall in no event be less than U.S.$5,000,000 and (B) in respect of any
increase in the Revolving Canadian Committed Amount, an integral multiple of
the Canadian Dollar Equivalent of U.S.$1,000,000 and shall in no event be less
than the Canadian Dollar Equivalent of U.S.$5,000,000;
(iv) such requested increase shall be effective on such date only
to the extent that, on or before such date, (A) the U.S. Agent shall have
received and accepted a corresponding amount of Additional Commitment(s)
pursuant to a commitment letter(s) acceptable to the U.S. Agent from one or
more Lenders acceptable to the U.S. Agent and, with respect to any Lender that
is not at such time a Lender hereunder, Airgas and (B) each such Lender has
executed an agreement in the form of Schedule 4.4 hereto (each such agreement
a "New Commitment Agreement"), accepted in writing therein by the U.S. Agent
and, with respect to any Lender that is not at such time a Lender hereunder,
Airgas, with respect to the Additional Commitment of such Lender; and
<PAGE> EX-52
(v) the U.S. Agent shall have received all documents (including
resolutions of the board of directors of Airgas) it may reasonably request
relating to the corporate or other necessary authority for and the validity
of such increase in the Revolving U.S. Committed Amount and/or the Revolving
Canadian Committed Amount, and any other matters relevant thereto, all in form
and substance reasonably satisfactory to the U.S. Agent.
4.5 Fees.
(a) Unused Fees.
(i) Unused Revolving U.S. Commitment Fee. In consideration of
the Revolving U.S. Commitments of the U.S. Lenders hereunder, Airgas agrees to
pay to the U.S. Agent for the account of the U.S. Lenders a fee (the "Unused
Revolving U.S. Commitment Fee") on the Unused Revolving U.S. Committed Amount,
computed at a per annum rate for each day during the applicable Unused
Revolving U.S. Commitment Fee Calculation Period (hereinafter defined) at a
rate equal to the Applicable Percentage in effect from time to time. The
Unused Revolving U.S. Commitment Fee shall commence to accrue on the Closing
Date and shall be due and payable in arrears on the last Business Day of each
March, June, September and December (and any date that the Revolving U.S.
Committed Amount is reduced as provided in Section 4.4 and the
Termination Date) for the immediately preceding quarter (or portion thereof)
(each such quarter or portion thereof for which such Unused Fee is payable
hereunder being herein referred to as an "Unused Revolving U.S. Commitment Fee
Calculation Period"), beginning with the first of such dates to occur after
the Closing Date.
(ii) Unused 364-Day Revolving Commitment Fee. In consideration of
the 364-Day Revolving Commitments of the U.S. Lenders hereunder, Airgas agrees
to pay to the U.S. Agent for the account of the U.S. Lenders a fee (the
"Unused 364-Day Revolving Commitment Fee") on the Unused 364-Day Revolving
Committed Amount, computed at a per annum rate for each day during the
applicable Unused 364-Day Revolving Commitment Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Percentage in effect
from time to time. The Unused 364-Day Revolving Commitment Fee shall commence
to accrue on the Closing Date and shall be due and payable in arrears on
the last Business Day of each March, June, September and December (and any
date that the 364-Day Revolving Committed Amount is reduced as provided in
Section 4.4 and the Termination Date) for the immediately preceding quarter
(or portion thereof) (each such quarter or portion thereof for which such
Unused Fee is payable hereunder being herein referred to as an "Unused 364-Day
Revolving Commitment Fee Calculation Period"), beginning with the first of
such dates to occur after the Closing Date.
(iii) Unused Revolving Canadian Commitment Fee. In consideration
of the Revolving Canadian Commitments of the Canadian Lenders hereunder, the
Canadian Borrowers agree to pay to the Canadian Agent for the account of the
Canadian Lenders a fee (the "Unused Revolving Canadian Commitment Fee") on the
Unused Revolving Canadian Committed Amount, computed at a per annum rate for
each day during the applicable Unused Revolving Canadian Commitment Fee
Calculation Period (hereinafter defined) at a rate equal to the Applicable
Percentage in effect from time to time. The Unused Revolving Canadian
Commitment Fee shall commence to accrue on the Closing Date and shall be due
and payable in arrears on the first Business Day of each April, July,
October and January (and any date that the Revolving Canadian Committed Amount
is reduced as provided in Section 4.4 and the Termination Date) for the
immediately preceding quarter (or portion thereof) (each such quarter or
portion thereof for which such Unused Fee is payable hereunder being herein
<PAGE> EX-53
referred to as an "Unused Revolving Canadian Commitment Fee Calculation
Period"), beginning with the first of such dates to occur after the Closing
Date.
(b) U.S. Letter of Credit Fees.
(i) Standby U.S. Letter of Credit Issuance Fee. In consideration
of the issuance of standby U.S. Letters of Credit hereunder, Airgas promises
to pay to the U.S. Agent for the account of each U.S. Lender a fee (the
"Standby U.S. Letter of Credit Fee") on such U.S. Lender's U.S. Commitment
Percentage of the average daily maximum amount available to be drawn under
each such standby U.S. Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration equal to the
Applicable Percentage. The Standby U.S. Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each March, June, September
and December for the immediately preceding quarter (or a portion thereof).
(ii) Trade U.S. Letter of Credit Drawing Fee. In consideration of
the issuance of trade U.S. Letters of Credit hereunder, Airgas promises to pay
to the U.S. Agent for the account of each U.S. Lender a fee (the "Trade U.S.
Letter of Credit Fee") equal to the Applicable Percentage on such U.S.
Lender's U.S. Commitment Percentage of the amount of each drawing under any
such trade U.S. Letter of Credit. The Trade U.S. Letter of Credit Fee will be
payable on each date of drawing under a trade U.S. Letter of Credit.
(iii) U.S. Issuing Lender Fees. In addition to the Standby U.S.
Letter of Credit Fee payable pursuant to clause (i) above and the Trade U.S.
Letter of Credit Fee payable pursuant to clause (ii) above, Airgas promises to
pay to the U.S. Issuing Lender for its own account without sharing by the
other Lenders (A) an issuance fee of 25 basis points on the face amount of
each trade U.S. Letter of Credit, payable on each date of issuance or
extension of a trade U.S. Letter of Credit, (B) a drawing fee of 15 basis
points on the amount of each drawing on any trade U.S. Letter of Credit,
payable on each date of drawing under a trade U.S. Letter of Credit, (C) the
letter of credit fronting and negotiation fees agreed to by Airgas and the
U.S. Issuing Lender in the U.S. Agent's Fee Letter and (D) the customary
charges from time to time of the U.S. Issuing Lender agreed to by Airgas with
respect to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, such U.S. Letters of Credit (collectively,
the "U.S. Issuing Lender Fees").
(c) Canadian Letter of Credit Fees.
(i) Standby Canadian Letter of Credit Issuance Fee. In
consideration of the issuance of standby Canadian Letters of Credit hereunder,
each Canadian Borrower promises to pay to the Canadian Agent for the account
of each Canadian Lender a fee (the "Standby Canadian Letter of Credit Fee") on
such Canadian Lender's Canadian Commitment Percentage of the average daily
maximum amount available to be drawn under each such standby Canadian Letter
of Credit computed at a per annum rate for each day from the date of issuance
to the date of expiration equal to the Applicable Percentage. The Standby
Canadian Letter of Credit Fee will be payable quarterly in arrears on the last
Business Day of each March, June, September and December for the immediately
preceding quarter (or a portion thereof).
(ii) Trade Canadian Letter of Credit Drawing Fee. In
consideration of the issuance of trade Canadian Letters of Credit hereunder,
each Canadian Borrower promises to pay to the Canadian Agent for the account
of each Canadian Lender a fee (the "Trade Canadian Letter of Credit Fee")
equal to the Applicable Percentage on such Lender's Canadian Commitment
Percentage of the amount of each drawing under any such trade Canadian Letter
<PAGE> EX-54
of Credit. The Trade Canadian Letter of Credit Fee will be payable on each
date of drawing under a trade Canadian Letter of Credit.
(iii) Canadian Issuing Lender Fees. In addition to the Standby
Canadian Letter of Credit Fee payable pursuant to clause (i) above and the
Trade Canadian Letter of Credit Fee payable pursuant to clause (ii) above,
each Canadian Borrower promises to pay to the Canadian Issuing Lender for its
own account without sharing by the other Lenders (A) an issuance fee of 25
basis points on the face amount of each trade Canadian Letter of Credit,
payable on each date of issuance or extension of a trade Canadian Letter of
Credit, (B) a drawing fee of 15 basis points on the amount of each drawing on
any trade Canadian Letter of Credit, payable on each date of drawing under a
trade Canadian Letter of Credit, (C) the letter of credit fronting and
negotiation fees agreed to by Airgas and the Canadian Issuing Lender in the
Canadian Agent's Fee Letter and (D) the customary charges from time to time of
the Canadian Issuing Lender agreed to by Airgas with respect to the issuance,
amendment, transfer, administration, cancellation and conversion of, and
drawings under, such Canadian Letters of Credit (collectively, the "Canadian
Issuing Lender Fees").
(d) Agent Fees.
(i) U.S. Agent Fees. Airgas agrees to pay to the U.S. Agent, for
its own account and for the account of NationsBanc Montgomery Securities,
Inc., as applicable, the fees referred to in the U.S. Agent's Fee Letter
(collectively, the "U.S. Agent's Fees").
(ii) Canadian Agent Fees. The Canadian Borrowers agree to pay to
the Canadian Agent, for its own account, the fees referred to in the Canadian
Agent's Fee Letter (collectively, the "Canadian Agent's Fees").
4.6 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 applicable Credit Parties, the Credit Parties 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 Credit Parties 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.
4.7 Inability To Determine Interest Rate.
(a) If prior to the first day of any Interest Period, the U.S. Agent
shall have determined (which determination shall be conclusive and binding
upon Airgas) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
<PAGE> EX-55
Rate for such Interest Period, the U.S. Agent shall give telecopy or
telephonic notice thereof to Airgas and the U.S. 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
U.S. 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 U.S. Base Rate Loans. Until such notice has been
withdrawn by the U.S. Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall Airgas have the right to convert U.S. Base Rate
Loans to Eurodollar Loans.
(b) If the Canadian Agent determines in good faith, which determination
shall be final, conclusive and binding upon the Canadian Borrowers absent
manifest error, and notifies the Canadian Borrowers and each of the Canadian
Lenders that, by reason of circumstances affecting the money market (i) there
is no market for Bankers' Acceptances; or (ii) the demand for Bankers'
Acceptances is insufficient to allow the sale or trading of the Bankers'
Acceptances created and purchased hereunder, then,
(A) the right of the Canadian Borrowers to request a borrowing by
way of Bankers' Acceptances shall be suspended until the Canadian Agent
determines in good faith that the circumstances causing such suspension no
longer exist and the Canadian Agent so notifies the Canadian Borrowers; and
(B) any notice of requested Bankers' Acceptances which is
outstanding shall be canceled and the Bankers' Acceptance requested therein
shall not be made.
(c) The Canadian Agent shall promptly notify the Canadian Borrowers of
the suspension of the Canadian Borrowers' right to request a Bankers'
Acceptance and of the termination of any such suspension.
4.8 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 U.S.
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 Airgas and the U.S. 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 U.S. 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 U.S. 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 U.S. 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, Airgas shall pay to
such Lender such amounts, if any, as may be required pursuant to Section
4.11.
4.9 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
<PAGE> EX-56
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 U.S. Letter of Credit, any Canadian Letter of Credit, any
Eurodollar Loans, Competitive U.S. Loans made by it, any Bankers' Acceptances
accepted 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 4.10 (including Non-Excluded Taxes
imposed solely by reason of any failure of such Lender to comply with its
obligations under Section 4.10(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
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 any Eurodollar Loan, Competitive U.S. Loan or
Revolving Canadian Loan, issuing or participating in any U.S. Letter of
Credit, of issuing or participating in any Canadian Letter of Credit or of
accepting any Bankers' Acceptance or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, upon notice to the Credit Parties
from such Lender, through an Agent, in accordance herewith, the Credit Parties
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, Airgas may
elect to convert the Eurodollar Loans made by such U.S. Lender hereunder to
U.S. Base Rate Loans by giving the U.S. Agent at least one Business Day's
notice of such election, in which case Airgas shall promptly pay to such U.S.
Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to Section 4.11; 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, Competitive U.S. Loan or Revolving
Canadian Loan, of issuing or participating in any U.S. Letter of Credit, of
issuing or participating in any Canadian Letter of Credit or of accepting any
Bankers' Acceptance by a material amount, then such U.S. Lender will credit to
Airgas 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 Credit Parties, through the appropriate
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 appropriate Agent, to the Credit Parties 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 4.9 that were erroneously billed to the Credit
Parties, together with interest thereon at the Base Rate. This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
<PAGE> EX-57
4.10 Taxes.
(a) Except as provided below in this subsection, all payments made by
the Credit Parties 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 an Agent or any Lender hereunder or under any Notes, (A)
the amounts so payable to such Agent or such Lender shall be increased to the
extent necessary to yield to such 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 Credit Parties 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 Credit Parties, and (B) as promptly as
possible thereafter the Credit Parties shall send to such 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 Credit Parties showing
payment thereof. If the Credit Parties fail to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to such Agent
the required receipts or other required documentary evidence, the Credit
Parties shall indemnify such Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by such 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 4.9 that were erroneously
billed to the Credit Parties, together with interest thereon at the Base 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 Airgas under this
Credit Agreement or Notes to such Lender, deliver to Airgas and the U.S. 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
<PAGE> EX-58
applicable form, as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to Airgas and the U.S. 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 Airgas; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by Airgas or the
U.S. 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 Airgas (for the benefit of Airgas and the U.S. 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 Airgas on or before the date of any payment by
Airgas, with a copy to the U.S. 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 Airgas and
the U.S. 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
extensions of time reasonably requested by Airgas or the U.S. Agent for filing
and completing such forms), and (iii) agree, to the extent legally entitled to
do so, upon reasonable request by Airgas, to provide to Airgas (for the
benefit of Airgas and the U.S. 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 Airgas and the U.S. Agent. Each Person that shall
become a Lender or a participant of a Lender pursuant to subsection 11.3
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.
4.11 Indemnity.
Airgas promises to indemnify each U.S. Lender and to hold each U.S.
Lender harmless from any loss or expense which such U.S. Lender may sustain or
incur (other than through such U.S. Lender's breach of its obligations
hereunder, gross negligence or willful misconduct) as a consequence of (a)
default by Airgas in making a borrowing of, conversion into or continuation
of Eurodollar Loans or Quoted Rate U.S. Swingline Loans after Airgas has given
a notice requesting the same in accordance with the provisions of this Credit
Agreement, (b) default by Airgas in making any prepayment of a Eurodollar Loan
or a Quoted Rate U.S. Swingline Loan after Airgas has given a notice thereof
in accordance with the provisions of this Credit Agreement or (c) the making
of a prepayment of Eurodollar Loans or Quoted Rate U.S. Swingline Loans
<PAGE> EX-59
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 U.S. Lender)
which would have accrued to such U.S. 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 Airgas set forth in this Section 4.11
shall survive the termination of this Credit Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.12 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans.
(i) U.S. Dollar Loans. Each Revolving U.S. Loan or 364-Day
Revolving Loan, each payment or prepayment of principal in respect of any
Revolving U.S. Loan or 364-Day Revolving Loan or reimbursement obligations
arising from drawings under U.S. Letters of Credit or from Participation
Interests in U.S. Swingline Loans, each payment of interest on the Revolving
U.S. Loans or 364-Day Revolving Loans or reimbursement obligations arising
from drawings under U.S. Letters of Credit, each payment of the Unused
Revolving U.S Commitment Fee or the Unused 364-Day Revolving Commitment Fees,
each payment of the Standby U.S. Letter of Credit Fee, each payment of the
Trade U.S. Letter of Credit Fee, each reduction of the Revolving U.S.
Committed Amount or the 364-Day Revolving Committed Amount and each
conversion or extension of any Revolving U.S. Loan or 364-Day Revolving Loan,
shall be allocated pro rata among the U.S. Lenders in accordance with the
respective principal amounts of their outstanding Revolving U.S. Loans and
Participation Interests in Revolving U.S. Loans, U.S. Letters of Credit and
U.S. Swingline Loans or their outstanding 364-Day Revolving Loans and
Participation Interests in 364-Day Revolving Loans, as applicable. With
respect to Competitive U.S. Loans, if Airgas fails to specify the particular
Competitive U.S. Loan or Loans as to which any payment or other amount should
be applied and it is not otherwise clear as to the particular Competitive U.S.
Loan or Loans to which such payment or other amounts relate, or any such
payment or other amount is to be applied to Competitive U.S. Loans without
regard to any such direction by Airgas, then each payment or prepayment of
principal on Competitive U.S. Loans and each payment of interest or other
amount on or in respect of Competitive U.S. Loans, shall be allocated pro rata
among the relevant U.S. Lenders in accordance with the then outstanding
amounts of their respective Competitive U.S. Loans.
(ii) Canadian Dollar Loans. Each Revolving Canadian Loan, each
creation of a Bankers' Acceptance, each payment or prepayment of principal in
respect of any Revolving Canadian Loan, BA Outstandings or reimbursement
obligations arising from drawings under Canadian Letters of Credit, each
payment of interest on the Revolving Canadian Loans or on reimbursement
obligations arising from drawings under Canadian Letters of Credit, each
payment of the Acceptance Fee on Bankers' Acceptances, each payment of the
Unused Revolving Canadian Commitment Fee, each payment of the Standby Canadian
Letter of Credit Fee, each payment of the Trade Canadian Letter of Credit Fee,
each reduction of the Revolving Canadian Committed Amount and each conversion
<PAGE> EX-60
or extension of any Revolving Canadian Loan, shall be allocated pro rata
among the Canadian Lenders in accordance with the respective principal amounts
of their outstanding Revolving Canadian Loans, BA Outstandings and
Participation Interests in Revolving Canadian Loans, Canadian Letters of
Credit and BA Outstandings.
(b) Advances. Unless the U.S. Agent or the Canadian Agent, as
appropriate, shall have been notified in writing by any Lender prior to any
extension of credit that such Lender will not make the amount that would
constitute its ratable share of such extension of credit available
to such Agent, such Agent may assume that such Lender is making such amount
available to such Agent, and such Agent may, in reliance upon such assumption,
make available to the relevant Credit Party(ies) a corresponding amount. If
such amount is not made available to the applicable Agent by such Lender
within the time period specified therefor hereunder, such Lender shall pay
to such Agent, on demand, such amount with interest thereon at a rate equal
to, in the case of any extension of credit in U.S. Dollars, the Federal Funds
Rate, or, in the case of any extension of credit in Canadian Dollars, the
interbank rate (as defined in the Canadian Payment Association Rules), for the
period until such Lender makes such amount immediately available to such
Agent. A certificate of the U.S. Agent or the Canadian Agent, as applicable,
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
4.13 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations, BA Outstandings
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 similar provision of the Canadian bankruptcy laws) 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, LOC
Obligations, BA Outstandings 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 Credit Parties agree 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, LOC
Obligations, BA Outstandings or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit
Agreement, if any Lender or an Agent shall fail to remit to an Agent or any
other Lender an amount payable by such Lender or such Agent to an 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
<PAGE> EX-61
law, any Lender receives a secured claim in lieu of a setoff to which this
Section 4.13 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 4.13 to share in the benefits of any
recovery on such secured claim.
4.14 Payments, Computations, Etc.
Except as otherwise specifically provided herein, (i) all payments in
respect of Revolving Canadian Loans, Canadian Swingline Loans, Canadian
Letters of Credit, Bankers' Acceptances, interest on Revolving Canadian Loans,
the Acceptance Fee on Bankers' Acceptances or the Unused Revolving Canadian
Commitment Fee shall be made to the Canadian Agent in Canadian Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the Canadian Agent's office specified in Schedule
2.1(a) not later than 2:00 P.M. (Toronto, Ontario time) on the date when due
and (ii) all other payments hereunder (other than payments in respect of
Competitive U.S. Loans) shall be made to the U.S. Agent in dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the U.S. Agent's office specified in Schedule
2.1(a) not later than 2:00 P.M. (Charlotte, North Carolina time) on the date
when due. Payments received after such times shall be deemed to have been
received on the next succeeding Business Day. The relevant 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 applicable Credit
Parties maintained with such Agent (with notice to such Credit Parties). Each
Credit Party shall, at the time it makes any payment under this Credit
Agreement (other than payments in respect of Competitive U.S. Loans), specify
to the relevant Agent the Loans, LOC Obligations, BA Outstandings, Fees,
Acceptance Fees, interest or other amounts payable by the Credit Parties
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, such Agent shall distribute such payment to the Lenders in such
manner as such Agent may determine to be appropriate in respect of obligations
owing by the Credit Parties hereunder, subject to the terms of Section
4.12(a)). The U.S. Agent or the Canadian Agent, as applicable, will
distribute such payments to such Lenders, if any such payment is received
prior to 12:00 NOON (Charlotte, North Carolina time or Toronto, Ontario time,
as applicable) on a Business Day in like funds as received prior to the end of
such Business Day and otherwise such Agent will distribute such payment to
such Lenders on the next succeeding Business Day. All payments of principal
and interest in respect of Competitive U.S. Loans shall be in accordance
with the terms of Section 2.2. 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. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days, except with respect to
computation of interest on U.S. Base Rate Loans which (unless the U.S. Base
Rate is determined by reference to the Federal Funds Rate) shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall accrue
from and include the date of borrowing, but exclude the date of payment.
<PAGE> EX-62
SECTION 5
CONDITIONS
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial extensions of credit hereunder shall be subject to
satisfaction of the following conditions (in form and substance acceptable to
the Lenders):
(a) The U.S. Agent shall have received original counterparts of
the Credit Documents executed by each of the parties thereto;
(b) The U.S. Agent shall have received all documents it may
reasonably request relating to the existence and good standing of each Credit
Party, 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 U.S. Agent;
(c) The U.S. Agent shall have received a legal opinion of
McCausland, Keen & Buckman, U.S. counsel for the Credit Parties, dated as of
the Closing Date and substantially in the form of Schedule 5.1(c);
(d) The Canadian Agent shall have received a legal opinion of
Blaney, McMurtry, Stapells, Friedman, Canadian counsel for the Credit Parties,
dated as of the Closing Date and substantially in the form of Schedule 5.1(d);
(e) The U.S. Agent shall have received a legal opinion of Moore &
Van Allen, dated as of the Closing Date and substantially in the form of
Schedule 5.1(e);
(f) Each Agent shall have received, for its own account and for
the accounts of the relevant Lenders, all fees and expenses required by this
Credit Agreement or any other Credit Document to be paid to such Agent on or
before the Closing Date;
(g) The U.S. Agent shall have received a satisfactory pay-off and
termination letter from CIBC in its capacity as agent under that certain
Credit Agreement dated November 14, 1995 among the Canadian Borrowers, CIBC
and the lenders (including CIBC) party thereto; and
(h) The U.S. Agent shall have received such other documents,
agreements or information which may be reasonably requested by either Agent.
5.2 Conditions to all Extensions of Credit.
The obligations of each Lender to make, convert or extend any Loan or
create any Bankers' Acceptance, of the U.S. Issuing Lender to issue or extend
U.S. Letters of Credit and of the Canadian Issuing Lender to issue or extend
Canadian Letters of Credit (including the initial Loans, the initial U.S.
Letters of Credit and the initial Canadian Letters of Credit) are subject to
satisfaction of the following conditions in addition to satisfaction on the
Closing Date of the conditions set forth in Section 5.1:
(i) The relevant Credit Party shall have properly delivered (A)
in the case of any Loan or Bankers' Acceptance, an appropriate Notice of
Borrowing or Notice of Extension/Conversion, (B) in the case of any U.S.
Letter of Credit, an appropriate request for issuance or extension in
accordance with the provisions of Section 2.3(b) or (C) in the case of any
<PAGE> EX-63
Canadian Letter of Credit, an appropriate request for issuance or extension
in accordance with the provisions of Section 3.3(b);
(ii) The representations and warranties set forth in Section 6
shall be, subject to the limitations set forth therein, true and correct in
all material respects as of such date (except for those which expressly relate
to an earlier date) unless the failure to be so true and correct would not be
reasonably expected to have a Material Adverse Effect;
(iii) There shall not have been commenced against any Credit Party
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded;
(iv) No Default or Event of Default shall exist and be continuing
either prior to or after giving effect thereto; and
(v) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof), the issuance or extension of
such U.S. Letter of Credit, the issuance or extension of such Canadian Letter
of Credit, or the creation of such Bankers' Acceptance as the case may be, (A)
in the case of Revolving U.S. Loans, Competitive U.S. Loans, U.S. Swingline
Loans and U.S. Letters of Credit, the sum of the aggregate principal amount of
outstanding Revolving U.S. Loans plus the aggregate principal amount of
outstanding Competitive U.S. Loans plus the aggregate principal amount of
outstanding U.S. Swingline Loans plus U.S. LOC Obligations outstanding shall
not exceed the Revolving U.S. Committed Amount, (B) in the case of U.S.
Letters of Credit, the U.S. LOC Obligations outstanding shall not exceed the
U.S. LOC Committed Amount, (C) in the case of U.S. Swingline Loans, the
aggregate principal amount of outstanding U.S. Swingline Loans shall not
exceed the U.S. Swingline Committed Amount, (D) in the case of 364-Day
Revolving Loans, the sum of the aggregate principal amount of outstanding
364-Day Revolving Loans shall not exceed the 364-Day Revolving Committed
Amount, (E) in the case of Revolving Canadian Loans, Canadian Swingline
Loans, Canadian Letters of Credit and Bankers' Acceptances, the sum of the
aggregate principal amount of outstanding Revolving Canadian Loans plus the
aggregate principal amount of outstanding Canadian Swingline Loans plus
Canadian LOC Obligations outstanding plus BA Outstandings shall not exceed the
Revolving Canadian Committed Amount, (F) in the case of Canadian Swingline
Loans, the aggregate principal amount of outstanding Canadian Swingline Loans
shall not exceed the Canadian Swingline Committed Amount and (G) in the case
of Canadian Letters of Credit, the aggregate principal amount of Canadian LOC
Obligations outstanding shall not exceed the Canadian LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion,
each request for a U.S. Swingline Loan, each request for a Canadian Swingline
Loan, each request for the issuance or extension of a U.S. Letter of Credit
pursuant to Section 2.3(b) and each request for the issuance or extension of a
Canadian Letter of Credit pursuant to Section 3.3(b) shall constitute a
representation and warranty by the Credit Parties of the correctness of the
matters specified in subsections (ii), (iii), (iv) and (v) above.
<PAGE> EX-64
SECTION 6
REPRESENTATIONS AND WARRANTIES
Airgas hereby represents to the Agents and each Lender that:
6.1 Financial Condition.
(a) The audited consolidated and consolidating balance sheet of the
Consolidated Parties, 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 Consolidated Parties as
of such date and for such periods. The unaudited interim balance sheets
of the Consolidated Parties as at the end of, and the related unaudited
interim statements of earnings and of cash flows for, each 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
Consolidated Parties 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 Consolidated Parties of any
material part of the business or property of the Consolidated Parties, taken
as a whole, and there has been no Material Acquisition, in each case, which,
is not reflected in the foregoing financial statements or in the notes thereto
or has not otherwise been disclosed in writing to the Agents on or prior to
the Closing Date.
(b) The projections of profit and loss statements, balance sheets and
cash flow reports for the Consolidated Parties 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.
6.2 No Change.
Since March 31, 1997, there has been no development or event relating to
or affecting the Consolidated Parties which has had or would be reasonably
expected to have a Material Adverse Effect.
6.3 Organization; Existence; Compliance with Law.
Each Consolidated Party (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
<PAGE> EX-65
Material Adverse Effect, and (d) is in compliance with all material
Requirements of Law.
6.4 Power; Authorization; Enforceable Obligations.
Each Credit Party 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 any Credit Party in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party.
This Credit Agreement has been, and each other Credit Document to which any
Credit Party is a party will be, duly executed and delivered on behalf of each
such Credit Party. This Credit Agreement constitutes, and each other Credit
Document when executed and delivered will constitute, a legal, valid and
binding obligation of each Credit Party (with regard to each Credit Document
to which it is a party) enforceable against such Credit Party 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 any
Credit Party, the borrowings hereunder and the use of the proceeds thereof (a)
will not violate any Requirement of Law or contractual obligation of such
Credit Party 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 such Credit Party 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 such Credit Party's articles of incorporation
or by-laws.
6.6 No Material Litigation.
Except as disclosed and described in Schedule 6.6 attached hereto, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Credit
Parties, threatened by or against the Consolidated Parties or against any of
their respective properties or revenues which (a) relates to any of the Credit
Documents or any of the transactions contemplated hereby or thereby or (b)
would be reasonably expected to have a Material Adverse Effect.
6.7 No Default.
No Consolidated Party is in default under or with respect to any of its
contractual obligations in excess of U.S.$10,000,000 in any respect which
would be reasonably expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
<PAGE> EX-66
6.8 Ownership of Property; Liens.
Each Consolidated Party has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its material real property,
and good title to, or a valid leasehold interest in, all its other material
property, and none of such property is subject to any Lien, except for
Permitted Liens.
6.9 Intellectual Property.
Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes, if
any, necessary for each of them to conduct its business as currently conducted
(the "Intellectual Property") except for those the failure to own or have such
legal right to use would not be reasonably expected to have a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does Airgas know of any
such claim, and the use of such Intellectual Property by any Consolidated
Party does not infringe on the rights of any Person, except for such claims
and infringements that in the aggregate, would not be reasonably expected to
have a Material Adverse Effect.
6.10 No Burdensome Restrictions.
Except as previously disclosed in writing to the Lenders on or prior to
the Closing Date, no Requirement of Law or contractual obligation of any
Consolidated Party would be reasonably expected to have a Material Adverse
Effect.
6.11 Taxes.
Each Consolidated Party has filed or caused to be filed all income tax
returns and all other material tax returns which, to the best knowledge of
Airgas, are required to be filed and has paid (a) all taxes shown to be due
and payable on said returns or (b) all taxes shown to be due and payable on
any assessments of which it has received notice made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than any (i) taxes, fees or
other charges with respect to which the failure to pay, in the aggregate,
would not have a Material Adverse Effect or (ii) taxes, fees or other charges
the amount or validity of which are currently being contested and with respect
to which reserves in conformity with GAAP have been provided on the books of
such Person), and no tax Lien has been filed, and, to the best knowledge of
Airgas, no claim is being asserted, with respect to any such tax, fee or other
charge.
6.12 ERISA.
Except as would not result in a Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has occurred,
and, to the best knowledge of Airgas, no event or condition has occurred or
exists as a result of which any Termination Event could reasonably be expected
to occur, with respect to any Plan; (ii) no "accumulated funding deficiency,"
as such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each
Single Employer Plan and, to the best knowledge of Airgas, each Multiemployer
Plan has been maintained, operated, and funded in compliance with its own
terms and in material compliance with the provisions of ERISA, the Code, and
<PAGE> EX-67
any other applicable federal or state laws; and (iv) no lien in favor of the
PBGC or a Plan has arisen or is reasonably likely to arise on account of any
Plan.
(b) The actuarial present value of all "benefit liabilities" under all
Single Employer Plans (determined within the meaning of Section 401(a)(2) of
the Code, utilizing the actuarial assumptions used to fund such Plans),
whether or not vested, did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the
current value of the assets of all such Plans.
(c) No Consolidated Party or any ERISA Affiliate has incurred, or, to
the best knowledge of Airgas, could be reasonably expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. No Consolidated Party or any ERISA Affiliate would become
subject to any withdrawal liability under ERISA if any Consolidated Party or
any ERISA Affiliate were to withdraw completely from all Multiemployer
Plans and Multiple Employer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No
Consolidated Party or any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of Airgas, reasonably expected to
be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Consolidated Party 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 any Consolidated Party or any
ERISA Affiliate has agreed or is required to indemnify any person against any
such liability.
6.13 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 other than securities
issued by Airgas. If requested by any Lender or the U.S. Agent, the Credit
Parties will furnish to the U.S. 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 other than securities issued by
Airgas. "Margin stock" within the meanings of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Consolidated Parties. 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) No Consolidated Party 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, no Consolidated Party 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
<PAGE> EX-68
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 any
Consolidated Party 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 Consolidated Party 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) No Consolidated Party is in violation of any applicable statute,
regulation or ordinance of the United States of America or Canada, or of any
state, province, 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 Consolidated Party 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.
6.14 Subsidiaries.
Schedule 6.14 sets forth all the Subsidiaries of each Credit Party at the
Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of such Credit Party therein.
6.15 Purpose of Loans and Letters of Credit.
The proceeds of the Loans hereunder shall be used solely by the Credit
Parties (i) to refinance existing Indebtedness of Airgas under the Existing
Credit Agreement, (ii) to finance the acquisition of new Subsidiaries, (iii)
to finance loans, advances and other investments by the Consolidated Parties
to the extent permitted under this Credit Agreement and (iv) for the working
capital, capital expenditure and other general corporate purposes of the
Consolidated Parties. The Letters of Credit shall be used only for or in
connection with appeal bonds, reimbursement obligations arising in connection
with surety and reclamation bonds, reinsurance, domestic or international
trade transactions and obligations not otherwise aforementioned relating to
acquisitions by the Consolidated Parties and other transactions entered into
by the applicable account party in the ordinary course of business.
6.16 Environmental Matters.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
any Consolidated Party (the "Properties") and all operations at the Properties
are in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Properties or the
businesses operated by any Consolidated Party (the "Businesses"), and there
are no conditions relating to the Businesses or Properties that could give
rise to liability under any applicable Environmental Laws.
<PAGE> EX-69
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts
or concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Businesses, nor does any Consolidated Party have
knowledge or reason to believe that any such notice will be received or is
being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or any other location, in each case by
or on behalf of any Consolidated Party in violation of, or in a manner that
would be reasonably likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of Airgas, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any
Consolidated Party, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of any Consolidated
Party in connection with the Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
SECTION 7
AFFIRMATIVE COVENANTS
Airgas hereby covenants and agrees that so long as this Credit Agreement
is in effect or any amounts payable hereunder or under any other Credit
Document shall remain outstanding, and until all of the Commitments hereunder
shall have terminated:
7.1 Information Covenants.
Airgas will furnish, or cause to be furnished, to the U.S. Agent and each
of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of the Consolidated
Parties, a consolidated and consolidating balance sheet and income statement
of the Consolidated Parties, as of the end of such fiscal year, together with
related consolidated and consolidating statements of operations and
retained earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated and consolidating figures for the preceding
fiscal year, all such financial information described above to be in
reasonable form and detail and audited by independent certified public
accountants of recognized national standing reasonably acceptable to the U.S.
Agent and whose opinion shall be to the effect that such financial statements
<PAGE> EX-70
have been prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the audit or
qualified as to the status of the Consolidated Parties as a going concern.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 60 days after the close of each fiscal quarter of the
Consolidated Parties (other than the fourth fiscal quarter, in which case 120
days after the end thereof) a consolidated and consolidating balance
sheet and income statement of the Consolidated Parties, as of the end of such
fiscal quarter, together with related consolidated and consolidating
statements of operations and retained earnings and of cash flows for such
fiscal quarter in each case setting forth in comparative form consolidated and
consolidating figures for the corresponding period of the preceding fiscal
year, all such financial information described above to be in reasonable form
and detail and reasonably acceptable to the U.S. Agent, and accompanied by a
certificate of the chief financial officer or other Executive Officer of
Airgas to the effect that, to the best of such Person's knowledge and belief,
such quarterly financial statements fairly present in all material respects
the financial condition of the Consolidated Parties and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate of
the chief financial officer or other Executive Officer of Airgas substantially
in the form of Schedule 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.10 by calculation thereof as of
the end of each such fiscal period and (ii) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Credit Party
proposes to take with respect thereto.
(d) Notice of Consolidation-National Welders. Within 15 days of the
effective date thereof, written notice to each of the Lenders of the
consolidation of National Welders with Airgas in accordance with GAAP.
(e) Reports. Promptly upon transmission or receipt thereof, (a) copies
of any filings and registrations with, and reports to or from, the Securities
and Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as the Consolidated Parties
shall send to their shareholders or to a holder of any Indebtedness owed
by the Consolidated Parties in its capacity as such a holder and (b) upon the
request of the U.S. Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational Health
and Safety Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(f) Notices. Within five (5) Business Days after any Executive Officer
of any Credit Party obtains knowledge thereof, such Credit Party will give
written notice to the U.S. Agent of (a) 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 Credit Parties propose to take with
respect thereto, and (b) the occurrence of any of the following with respect
to the Consolidated Parties (i) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person which if
adversely determined is likely to have a Material Adverse Effect, (ii) the
institution of any proceedings against such Person with respect to, or the
receipt of notice by such Person of potential liability or responsibility for
violation, or alleged violation of any federal, state or local law, rule or
<PAGE> EX-71
regulation, including but not limited to, Environmental Laws, the violation of
which would likely have a Material Adverse Effect, or (iii) any notice or
determination concerning the imposition of any withdrawal liability by a
Multiemployer Plan against such Person or any ERISA Affiliate, the
determination that a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title IV of ERISA or the termination
of any Plan.
(g) ERISA. Within five (5) Business Days after any Executive Officer
of Airgas obtains knowledge thereof, Airgas will give written notice to the
U.S. Agent of the occurrence of any of the following events if such event has
had or reasonably could be expected to have a Material Adverse Effect: (i) of
any event or condition, including, but not limited to, any Reportable Event,
that constitutes, or might reasonably lead to, a Termination Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed in
ERISA or otherwise of any withdrawal liability assessed against Airgas or any
of its ERISA Affiliates, or of a determination that any Multiemployer Plan is
in reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Consolidated Party or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in ERISA and the Code
with respect thereto; or (iv) any change in the funding status of any Plan,
together with a description of any such event or condition or a copy of any
such notice and a statement by the chief financial officer or other
Executive Officer of Airgas briefly setting forth the details regarding such
event, condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by Airgas or any ERISA Affiliate with
respect thereto.
(h) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of the Consolidated Parties as the U.S. Agent or the
Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted by Section 8.4, Airgas will, and will
cause each Consolidated Party to, do all things necessary to preserve and keep
in full force and effect its existence, rights, franchises
and authority.
7.3 Books and Records.
Airgas will, and will cause each of its Subsidiaries domiciled in the
United States to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate reserves). Airgas
will, and cause each Consolidated Party domiciled in Canada to, keep complete
and accurate books and records of its transactions in accordance with good
accounting practices on the basis of generally accepted accounting principles
applicable in Canada.
7.4 Compliance with Law.
Airgas will, and will cause each Consolidated Party to, comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and its property if
noncompliance with any such law, rule, regulation, order or restriction would
have a Material Adverse Effect.
<PAGE> EX-72
7.5 Payment of Taxes and Other Indebtedness.
Except as otherwise provided pursuant to the terms of the definition of
"Permitted Liens" set forth in Section 1.1, Airgas will, and will cause each
Consolidated Party to, pay and discharge (i) all taxes, assessments and
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent, (ii) all
lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien upon any of its properties, and (iii) all of
its other Indebtedness as it shall become due.
7.6 Insurance.
Airgas will, and will cause each Consolidated Party to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice.
7.7 Maintenance of Property.
Airgas will, and will cause each Consolidated Party to, maintain and
preserve its properties and equipment material to the conduct of its business
in good repair, working order and condition, normal wear and tear and casualty
and condemnation excepted, and will make, or cause to be made, in such
properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as
may be needed or proper, to the extent and in the manner customary for
companies in similar businesses.
7.8 Use of Proceeds.
The Credit Parties will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
7.9 Audits/Inspections.
Upon reasonable notice and during normal business hours, Airgas will, and
will cause each Consolidated Party to, permit representatives appointed by the
U.S. Agent, including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property, including its
books and records, its accounts receivable and inventory, its facilities and
its other business assets, and to make photocopies or photographs thereof and
to write down and record any information such representative obtains.
7.10 Financial Covenants.
(a) Consolidated Funded Indebtedness Coverage Ratio. Airgas shall
cause the Consolidated Funded Indebtedness Coverage Ratio as of each
Calculation Date to be no greater than 4.5 to 1.0.
(b) Consolidated Fixed Charge Coverage Ratio. Airgas shall cause the
Consolidated Fixed Charge Coverage Ratio as of each Calculation Date to be at
least 3.00 to 1.00.
(c) Consolidated Net Worth. Airgas shall cause Consolidated Net Worth
at all times to be no less than the sum of 75% of Consolidated Net Worth as of
September 30, 1997 increased on a cumulative basis as of the last day of each
fiscal year (commencing with the first of such dates to occur after the
Closing Date) by an amount equal to 50% of the Consolidated Net Income
<PAGE> EX-73
(excluding Consolidated Net Income for the first and second fiscal quarters of
the Borrower for the fiscal year 1998 and without deduction for any losses)
for the fiscal year then ended.
7.11 Maintenance of Designation Rights - National Welders Board of
Directors.
Airgas shall maintain at all times the right to designate at least 50% of
the members of the Board of Directors of National Welders.
SECTION 8
NEGATIVE COVENANTS
Airgas hereby covenants and agrees that, so long as this Credit Agreement
is in effect or any amounts payable hereunder or under any other Credit
Document shall remain outstanding, and until all of the Commitments hereunder
shall have terminated:
8.1 Indebtedness.
Airgas will not permit:
(a) the sum (without duplication) of (i) the aggregate outstanding
principal balance of all Indebtedness of Subsidiaries of Airgas (other than
(A) Indebtedness permitted pursuant to Section 8.1(b), (B) Indebtedness backed
or guaranteed by a U.S. Letter of Credit or a Canadian Letter of Credit issued
hereunder and (C) Indebtedness of National Welders outstanding during the
180-day period immediately succeeding the first date as of which National
Welders is required, if ever, to be consolidated with Airgas in accordance
with GAAP), plus (ii) the aggregate outstanding principal balance of all
secured Indebtedness of Airgas and its Subsidiaries (other than Indebtedness
permitted pursuant to Section 8.1(b) and other than Indebtedness of National
Welders outstanding during the 180-day period immediately succeeding the first
date as of which National Welders is required, if ever, to be consolidated
with Airgas in accordance with GAAP), to exceed at any time 20% of
Consolidated Net Worth as of the then most recent Calculation Date; or
(b) the aggregate outstanding principal balance of all Indebtedness of
the Canadian Subsidiaries of Airgas (other than Indebtedness backed or
guaranteed by a U.S. Letter of Credit or a Canadian Letter of Credit issued
hereunder) to exceed at any time C$115,000,000.
8.2 Liens.
Airgas will not, nor will it permit any Consolidated Party to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 Nature of Business.
Airgas will not, nor will it permit any Consolidated Party to,
substantively alter the character or conduct of the business conducted by any
such Person as of the Closing Date.
<PAGE> EX-74
8.4 Consolidation, Merger, Amalgamation or Sale.
Airgas will not, nor will it permit any Consolidated Party to:
(a) except in connection with a disposition of assets permitted by the
terms of Section 8.4(b), dissolve, liquidate or wind up their affairs, or
enter into any transaction of merger, consolidation or amalgamation, provided
that (i) Airgas may merge, consolidate or amalgamate with any of its
Subsidiaries so long as Airgas is the surviving corporation; (ii) any Canadian
Borrower may merge, consolidate or amalgamate with any of its wholly-owned
Subsidiaries so long as (A) such Canadian Borrower is the surviving
corporation and (B) no Default or Event of Default shall have occurred and be
continuing at the time of such merger, consolidation or amalgamation or shall
result upon giving effect thereto; (iii) any Subsidiary of any Credit Party
may merge, consolidate or amalgamate with any other Subsidiary of such Credit
Party; (iv) Airgas or any of its Subsidiaries (other than Canadian
Subsidiaries) may merge or consolidate with any other Person that is not a
Consolidated Party so long as (A) Airgas or such Subsidiary is the surviving
corporation and (B) no Default or Event of Default shall have occurred and be
continuing at the time of such merger or consolidation or shall result upon
giving effect thereto; (v) a Canadian Borrower may amalgamate with any other
Person that is not a Consolidated Party so long as (A) the corporation
resulting from such amalgamation is in compliance with all covenants contained
in this Credit Agreement and (B) no Default or Event of Default shall have
occurred and be continuing at the time of such amalgamation or shall result
upon giving effect thereto and (vi) any Subsidiary of any Credit Party of
which 85% or more of the capital stock or other equity interests is owned by
such Credit Party (directly or indirectly through Subsidiaries) may dissolve,
liquidate or wind up its affairs at any time; or
(b) sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale and leaseback transaction)
other than (i) sales or leases in the ordinary course of business, (ii) the
sale or disposition of machinery and equipment no longer used or useful in the
conduct of such Person's business, (iii) sales, distributions or other
dispositions of stock in Subsidiaries of any Credit Party to the extent
permitted under Section 8.9 and (iv) other sales of Property (including
without limitation stock in Subsidiaries) provided that (A) the aggregate net
book value of the Property sold by all Consolidated Parties pursuant to this
clause (iv) shall not exceed (1) for all such transactions during any fiscal
year, 10% of Consolidated Total Assets as of the end of the fiscal year
immediately preceding the then current fiscal year or (2) for all such
transactions after the Closing Date, 25% of Total Assets as of the end of the
fiscal year immediately preceding the then current fiscal year, (B) the sale
price for any Property sold in any such transaction pursuant to this clause
(iv) shall not be less than the fair market value of such Property, (C) each
such transaction pursuant to this clause (iv) involving Property having a net
book value of U.S.$5,000,000 or more shall be on an arms-length basis with a
wholly independent third party and (D) no Default of Event of Default shall
have occurred and be continuing at the time of any such transaction pursuant
to this clause (iv) or shall result upon giving effect thereto.
8.5 Restricted Payments.
Airgas will not, nor will it permit any Consolidated Party to, directly
or indirectly declare, order, make or set apart any sum for or pay any
Restricted Payment, except (i) to make dividends payable solely in the same
class of capital stock of such Person, (ii) to make dividends or other
distributions payable to a Credit Party (directly or indirectly through
Subsidiaries of a Credit Party), (iii) as permitted by Section 8.6, and (iv)
other Restricted Payments so long as no Default of Event of Default shall have
<PAGE> EX-75
occurred and be continuing at the time of any such Restricted Payment or shall
result upon giving effect thereto.
8.6 Prepayments of Indebtedness, Etc.
Airgas will not, nor will it permit any Consolidated Party to, (i) if any
Default or Event of Default has occurred and is continuing or would be
directly or indirectly caused as a result thereof, (A) after the issuance
thereof, amend or modify (or permit the amendment or modification of) any of
the terms of any Indebtedness if such amendment or modification would add or
change any terms in a manner adverse to the issuer of such Indebtedness, or
shorten the final maturity or average life to maturity or require any payment
to be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof or (B) make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with
respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any other Indebtedness or (ii) amend, modify or
change its articles of incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document) where such
change would have a Material Adverse Effect.
8.7 Fiscal Year.
Without prior written notice to the Agents, Airgas will not, nor will it
permit any Consolidated Party to, change its fiscal year.
8.8 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions, Etc.
Airgas will not, nor will it permit any Consolidated Party to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Person to (i) pay dividends or make any other
distribution on any of such Person's capital stock, (ii) pay any Indebtedness
owed to any Consolidated Party, (iii) make loans or advances to any
Consolidated Party or (iv) transfer any of its Property to any Consolidated
Party, except for encumbrances or restrictions existing under or by reason of
(A) customary non-assignment provisions in any lease governing a leasehold
interest, (B) any agreement or other instrument of a Person existing at the
time it becomes a Subsidiary of a Credit Party, provided that such encumbrance
or restriction is not applicable to any other Person, or any Property of any
other Person, other than such Person becoming a Subsidiary of a Credit Party
and was not entered into in contemplation of such Person becoming a Subsidiary
of a Credit Party, (C) documents evidencing or relating to Indebtedness of
Canadian Subsidiaries of Airgas permitted pursuant to Section 8.1 and (D) this
Credit Agreement and the other Credit Documents.
8.9 Issuance and Sale of Subsidiary Stock.
Airgas will not, nor will it permit any Consolidated Party to, except to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law and except as otherwise permitted under the
terms of Section 8.4(b), sell, transfer or otherwise dispose of, any shares of
capital stock of any of its Subsidiaries or permit any of its Subsidiaries to
issue, sell or otherwise dispose of, any shares of capital stock of any of its
Subsidiaries; provided, however, that any Subsidiary of a Credit Party may
issue, sell and/or distribute to officers of such Subsidiary additional shares
of stock in such Subsidiary not to exceed 15% in the aggregate of any class of
stock of such Subsidiary for all such officers.
<PAGE> EX-76
8.10 No Further Negative Pledges.
Except with respect to prohibitions against other encumbrances on
specific Property encumbered to secure payment of particular Indebtedness
(which Indebtedness relates solely to such specific Property, and improvements
and accretions thereto, and is otherwise permitted hereby), Airgas will not,
nor will it permit any Consolidated Party to, enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, or requiring the grant of any security for such obligation
if security is given for some other obligation.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any
of the Loans or of any reimbursement obligations arising from drawings under
Letters of Credit, 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 on any
reimbursement obligations arising from drawings under Letters of Credit,
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 any Credit Party 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. Any Credit Party 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 9.1) 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 such Credit
Party becoming aware of such default or notice thereof by the U.S. Agent; or
(d) Other Credit Documents. Any Credit Party 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 any Consolidated Party; or
(f) Defaults under Other Indebtedness. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of U.S.$10,000,000 in the aggregate for the Consolidated
Parties 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
<PAGE> EX-77
any Consolidated Party, 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) any Consolidated Party 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 any Consolidated Party involving a liability of U.S.$10,000,000 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
U.S.$10,000,000: (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 any Consolidated Party 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 U.S. Agent, likely
to result in the termination of such Plan forpurposes 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 U.S. Agent,
likely to result in (i) the termination of such Plan for purposes of Title IV
of ERISA, or (ii) any Consolidated Party 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 any Consolidated Party
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 any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any person against any such liability; or
(i) Ownership.
(i) 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 any Credit Party(or other
securities convertible into such Voting Stock) representing 50% or more of the
combined voting power of all Voting Stock of such Credit Party; 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
<PAGE> EX-78
acquisition by such Person and/or its Affiliates of Voting Stock of such
Credit Party which gives such Person and/or its Affiliates an aggregate
ownership of more than 50% of the Voting Stock of such Credit Party;
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.
(ii) Airgas shall fail to own, directly or indirectly, all
of the Voting Stock of each of the Canadian Borrowers.
9.2 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 11.6), the U.S. Agent shall, upon the request and
direction of the Required Lenders, by written notice to the Credit Parties
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, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by any Credit Party to
an 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 Credit
Parties.
(iii) Cash Collateral. Direct the Credit Parties to pay (and each
Credit Party agrees that upon receipt of such notice, or upon the occurrence
of an Event of Default under Section 9.1(e), it will immediately pay) to the
U.S. Agent (A) additional cash, to be held by the U.S. Agent, for the benefit
of the U.S. Lenders, in a cash collateral account as additional security for
the U.S. LOC Obligations in respect of subsequent drawings under all then
outstanding U.S. Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all U.S. Letters of Credits then outstanding
and (B) additional cash, to be held by the Canadian Agent, for the benefit of
the Canadian Lenders, in a cash collateral account as additional security for
the Canadian LOC Obligations in respect of subsequent drawings under all then
outstanding Canadian Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Canadian Letters of Credits then
outstanding.
(iv) 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 9.1(e) shall occur, then the Commitments shall automatically terminate
and all Loans, all reimbursement obligations arising from drawings under
Letters of Credit, all accrued interest in respect thereof, all accrued and
unpaid Fees and other indebtedness or obligations owing to an 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 U.S. Agent or
the Lenders.
<PAGE> EX-79
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as the U.S.
Agent to act as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the U.S. 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. Each Canadian Lender hereby designates and appoints Canadian
Imperial Bank of Commerce as the Canadian Agent to act as specified herein and
the other Credit Documents, and each such Canadian Lender hereby authorizes
the Canadian Agent as the agent for such Canadian 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 Agents 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,
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 Agents. The provisions of this Section are solely for the
benefit of the Agents and the Lenders, and the Credit Parties 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 U.S. 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 Credit Parties or any of their
respective Affiliates. In performing its functions and duties under this
Credit Agreement and the other Credit Documents, the Canadian Agent shall act
solely as agent of the Canadian 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 Credit Parties or any of their respective Affiliates.
10.2 Delegation of Duties.
Each of the Agents may execute any of its 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. Neither of the Agents shall be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 Exculpatory Provisions.
Each of the Agent or any of 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 any Credit Party 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 an Agent under or in connection herewith or
<PAGE> EX-80
in connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure
of any Credit Party to perform its obligations hereunder or thereunder.
Neither of the Agents shall 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 any Credit Party 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 such Agent
to the Lenders or by or on behalf of the Credit Parties to such 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 the use of the Letters of Credit or of the existence or possible
existence of any Default or Event of Default or to inspect the properties,
books or records of any Credit Party or any of its respective Affiliates.
Neither of the Agents is a trustee for any Lenders or owes any fiduciary duty
to any Lenders.
10.4 Reliance on Communications.
Each of the Agents 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 Credit Parties, independent
accountants and other experts selected by the U.S. Agent with reasonable
care). Each of the Agents may deem and treat each Lender as the owner of its
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with such Agent in
accordance with Section 11.3(b) hereof. Each of the Agents 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 as it deems appropriate from, in the case
of the U.S. Agent, the Required Lenders, or, in the case of the Canadian
Agent, the Required Canadian Lenders, or it shall first be indemnified to its
satisfaction by, in the case of the U.S. Agent, the Lenders, or, in the case
of the Canadian Agent, the Canadian 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. Each 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, in the case of the U.S. Agent, the
Required Lenders, or, in the case of the Canadian Agent, the Required Canadian
Lenders (or, in the case of the U.S. Agent or the Canadian Agent, all the
Lenders to the extent specifically provided in Section 10.6) 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).
10.5 Notice of Default.
Neither of the Agents shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent has
received notice from a Lender or a Credit Party 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 either Agent receives such
a notice, such Agent shall give prompt notice thereof to, in the case of the
U.S. Agent, all of the Lenders, or, in the case of the Canadian Agent, the
<PAGE> EX-81
Canadian Lenders. The U.S. Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither of the Agents nor any of
their officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by an Agent
or any affiliate thereof hereinafter taken, including any review of the
affairs of the Credit Parties or any of their respective Affiliates, shall be
deemed to constitute any representation or warranty by such Agent to any
Lender. Each Lender represents to each of the Agents that it has,
independently and without reliance upon the Agents 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 Credit Parties or their 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 Agents 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 Credit Parties and their respective Affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
(or any of them) by such Agent hereunder, neither of the Agents shall 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 Credit Parties or
any of their respective Affiliates which may come into the possession of such
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the U.S. Agent in its capacity as such (to
the extent not reimbursed by the Credit Parties and without limiting the
obligation of the Credit Parties to do so), ratably (according to (i) the sum
of the Dollar Amount of (A) the Revolving U.S. Commitments, (B) the 364-Day
Revolving Commitments, (C) the Revolving Canadian Commitments, and (D) the
outstanding principal amount of any 364-Day Revolving Loans which have been
converted to term loans pursuant to Section 2.5(f) (and Participation
Interests therein) or (ii) if the Commitments have been terminated, the sum of
the Dollar Amount of (A) the outstanding Loans, (B) the outstanding
Participation Interests (including the Participation Interests of the U.S.
Issuing Lender in any U.S. Letters of Credit, the Participation Interests of
the U.S. Swingline Lender in any U.S. Swingline Loans and the Participation
Interests of the Canadian Issuing Lender in any Canadian Letters of Credit),
(C) the Canadian LOC Obligations and (D) the BA Outstandings), 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 Credit Parties
hereunder and under the other Credit Documents) be imposed on, incurred by or
asserted against the U.S. 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 U.S.
<PAGE> EX-82
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 U.S. Agent. If any indemnity furnished to the U.S. Agent
for any purpose shall, in the opinion of the U.S. Agent, be insufficient or
become impaired, the U.S. Agent may call for additional indemnity from
the Lenders and cease, or not commence, to do the acts indemnified against
until such additional indemnity is furnished. The Canadian Lenders agree to
indemnify the Canadian Agent in its capacity as such (to the extent not
reimbursed by the Credit Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to their respective Commitments
(or 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 Credit Parties hereunder and under the other Credit
Documents) be imposed on, incurred by or asserted against the Canadian 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 Canadian 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
Canadian Agent. If any indemnity furnished to the Canadian Agent for any
purpose shall, in the opinion of the Canadian Agent, be insufficient or
become impaired, the Canadian Agent may call for additional indemnity from the
Canadian Lenders 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, LOC Obligations, BA
outstandings and other obligations under the Credit Documents and the
termination of the Commitments hereunder. Nothing set forth in this Section
10.7 shall effect any obligation arising under the Credit Documents of either
of the Agents to any of the Credit Parties.
10.8 Agents in their Individual Capacity.
Each of the Agents and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Consolidated
Parties or their respective Affiliates as though such Agent were not an Agent
hereunder. With respect to the Loans made by and all obligations of the
Credit Parties hereunder and under the other Credit Documents, each 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 an Agent, and the terms
"Lender" and "Lenders" shall include the U.S. Agent and the Canadian Agent in
their individual capacities.
10.9 Successor Agents.
Either of the Agents may, at any time, resign upon 45 days' written
notice to the Lenders and Airgas, and be removed with or without cause by the
Required Lenders upon 30 days' written notice to the Agents and Airgas. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor U.S. Agent or successor Canadian Agent, as applicable,
acceptable to Airgas. If no successor U.S. Agent or successor Canadian Agent,
as applicable, shall have been so appointed (and accepted such appointment)
within 30 days after the notice of resignation or notice of removal, as
<PAGE> EX-83
appropriate, then the retiring U.S. Agent or Canadian Agent, as applicable,
shall select a successor U.S. Agent or successor Canadian Agent, as
applicable, acceptable to Airgas, provided such successor is a Lender
hereunder or, in the case of a successor U.S. Agent, 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 U.S.$1,000,000,000,
or, in the case of a successor Canadian Agent, a commercial bank organized
under the laws of Canada or of any Province thereof and has a combined capital
and surplus of at least C$1,000,000,000. Upon the acceptance of any
appointment as U.S. Agent or Canadian Agent, as applicable, hereunder by a
successor, such successor U.S. Agent or successor Canadian Agent, as
applicable, shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring U.S. Agent or Canadian Agent, as
applicable, and the retiring U.S. Agent or Canadian Agent, as applicable,
shall be discharged from its duties and obligations as U.S. Agent or Canadian
Agent, as applicable, under this Credit Agreement and the other Credit
Documents and the provisions of this Section 10.9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was an Agent
under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 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 save in the
event of disruption of postal services, in which case notices or other
communications shall not be mailed, in each case to the respective parties at
the address, in the case of the Credit Parties, the U.S. Agent and the
Canadian Agent, set forth below, and, in the case of the Lenders, set forth on
Schedule 2.1(a), or at such other address as such party may specify by written
notice to the other parties hereto:
if to the Credit Parties:
Airgas, Inc.
Radnor Court, Suite 100
259 Radnor-Chester Road
Radnor, PA 19087
Attn: Chief Financial Officer
Telecopy: (610) 225-3271
with a copy to:
McCausland, Keen & Buckman
Radnor Court, Suite 160
259 Radnor-Chester Road
Radnor, PA 19087
Attn: Melvin J. Buckman, Esq.
Telecopy: (610) 341-1099
<PAGE> EX-84
if to the U.S. 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
if to the Canadian Agent:
Canadian Imperial Bank of Commerce
7th Floor
Commerce Court West
Toronto, Ontario
M5L 1A2
Attn: Executive Director, Cross-Border North American
Banking Group
Telecopy: (416) 980-8384
with a copy to
Canadian Imperial Bank of Commerce
Loan Underwriting and Distribution
7th Floor
Commerce Court West
Toronto, Ontario
M5L 1A2
Attn: David Evelyn
Telecopy: (416) 980-5151
11.2 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 a Credit Party
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
<PAGE> EX-85
a participation in the Loans and Commitments hereunder pursuant to Section
4.13 or Section 11.3(c) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender
hereunder.
11.3 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 a Credit Party 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 11.3, 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 11.3(b), to (i) any Lender, any Subsidiary of a Lender
or any Affiliate of a Lender under direct or indirect common control with such
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 U.S. Agent, Airgas and, in
the case of any assignment by a Canadian Lender, the Canadian Agent (provided
that it shall not be unreasonable for Airgas to withhold its approval for any
assignment to any competitor of Airgas (which term "competitor" shall not
include a Person solely by reason of the fact that such Person is making loans
to, accepting deposits from or otherwise generally engaging in banking
business with any competitor of Airgas); provided that (i)(A) in the case of
any assignment by a U.S. Lender of all or any portion of such U.S. Lender's
Revolving U.S. Commitment or 364-Day Revolving Commitment, (other than any
assignment to an existing Lender), such assignment shall be in a minimum
aggregate amount of U.S.$5,000,000 of such Commitments and in integral
multiples of U.S.$1,000,000 above such amount (or, if less, the remaining
amount of the Commitment being assigned by such U.S. Lender) or (B) in the
case of any assignment by a Canadian Lender of all or any portion of such
Canadian Lender's Revolving Canadian Commitment (other than any assignment to
an existing Lender), such assignment shall be in a minimum aggregate amount of
C$1,500,000 of such Commitment and in integral multiples of C$100,000 above
such amount (or, if less, the remaining amount of the Commitment being
assigned by such Canadian 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 of all or any portion of a U.S.
Lender's Revolving U.S. Commitment or 364-Day Revolving Commitment hereunder
shall be effective upon delivery to the U.S. Agent of written notice of the
assignment together with a transfer fee of U.S.$3,500 payable to the U.S.
Agent for its own account from and after the effective date specified in the
applicable assignment agreement. Any assignment of all or any portion of a
Canadian Lender's Revolving Canadian Commitment hereunder shall be effective
upon (i) delivery to the U.S. Agent and Canadian Agent of written notice of
the assignment and (ii) payment of a transfer fee of C$3,500 payable to the
Canadian Agent for its own account from and after the effective date specified
in the applicable assignment agreement. In addition, the assigning Lender
will give prompt notice to Airgas 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, Airgas as
provided herein), the assignee shall become a "Lender" for all purposes of
<PAGE> EX-86
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 each Credit Party agrees that upon notice of any such
assignment 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 11.3(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 any Credit Party or any of its respective Affiliates or the
performance or observance by any Credit Party 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 Agents, 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
Agents 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
Agents 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,
(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 or (C) alter the obligations of
the Guarantor, 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
<PAGE> EX-87
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 Credit
Parties 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 under Sections 4.6, 4.9, 4.10 and 4.11 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.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of an Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between an Agent or any Lender and the Credit Parties
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 Agents or any Lender would otherwise have. No notice to or demand
on the Credit Parties in any case shall entitle the Credit Parties to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the U.S. Agent or the Lenders to any
other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses, Etc.
The Credit Parties agree to: (i) pay all reasonable out-of-pocket costs
and expenses (A) of the U.S. 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 Agents as well as
Canadian counsel to the Agents) 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 Credit Parties under this
Credit Agreement and (B) of the U.S. 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 U.S.
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 Agent, 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 Agent or Lender is a party thereto) occurring
subsequent to and as the result of the occurrence of a Default or Event of
Default and 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
<PAGE> EX-88
leased by any Consolidated Party, or the failure by any Consolidated Party 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).
11.6 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 Credit Parties, 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 of any reimbursement
obligations arising from drawings under Letters of Credit, 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 of any reimbursement obligations
arising from drawings under Letters of Credit or fees hereunder;
(iii) reduce the principal amount on any Loan or of any
reimbursement obligations arising from drawings under Letters of Credit 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 11.6 or
Section 4.6, 4.10, 4.11, 4.12, 4.13, 9.1(a), 11.2, 11.3, 11.5 or 11.9;
(v) reduce any percentage specified in, or otherwise modify, the
definition of "Required Lenders";
(vi) consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under (or in respect of) the Credit
Documents to which it is a party or
(vi) alter the obligations of the Guarantor.
No provision of Section 2 may be amended without the consent of the Required
U.S. Lenders (provided further that (a) no provision of Section 2.3 may be
amended without the consent of the U.S. Issuing Lender and (b) no provision of
Section 2.4 may be amended without the consent of the U.S. Swingline Lender).
No provision of Section 3 may be amended without the consent of the Required
Canadian Lenders (provided further (a) that no provision of Section 3.2 may be
amended without the consent of the Canadian Swingline Lender and (b) no
provision of Section 3.3 may be amended without the consent of the Canadian
Issuing Lender).
No provision of Section 10 may be amended without the consent of the Agents.
<PAGE> EX-89
11.7 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.
11.8 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.
11.9 Survival.
All indemnities set forth herein, including, without limitation, in
Section 2.3(i), 4.9, 4.11, 10.7 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of
the Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
11.10 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, each Credit Party hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each Credit
Party 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 11.1, such service to become
effective three (3) days after such mailing. Nothing herein shall affect the
right of the U.S. Agent to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against a Credit
Party in any other jurisdiction.
(b) Each Credit Party 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) With respect to the guaranty obligations of Airgas arising under
Section 3.5:
(i) (A) Without limiting the generality of subsections (a) and
(b) of this Section 11.10, Airgas agrees that any controversy or claim with
respect to it arising out of or relating to this Credit Agreement or the other
Credit Documents may, at the option of the Canadian Agent and the Canadian
<PAGE> EX-90
Lenders, be settled immediately by submitting the same to binding arbitration
in the City of Charlotte, North Carolina (or such other place as the parties
may agree) in accordance with the Commercial Arbitration Rules then obtaining
of the American Arbitration Association. Upon the request and submission of
any controversy or claim for arbitration hereunder, the Canadian Agent shall
give Airgas not less than 45 days written notice of the request for
arbitration, the nature of the controversy or claim, and the time and place
set for arbitration. Airgas agrees that such notice is reasonable to enable
it sufficient time to prepare and present its case before the arbitration
panel. Judgment on the award rendered by the arbitration panel may be entered
in any court in which any action could have been brought or maintained
pursuant to subparagraph (ii) below, including without limitation any court of
the State of North Carolina or any Federal court sitting in the State of
North Carolina. The expenses of arbitration shall be paid by Airgas.
(B) The provisions of subparagraph (A) above are intended to
comply with the requirements of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the "Convention"). To the extent that
any provisions of such subparagraph (A) are not consistent with or fail to
conform to the requirements set out in the Convention, such subparagraph (A)
shall be deemed amended to conform to the requirements of the Convention.
(C) Airgas hereby specifically consents and submits to the
jurisdiction of the courts of the State of North Carolina and courts of the
United States located in the State of North Carolina for purposes of entry of
a judgment or arbitration award entered by the arbitration panel.
(ii) The guarantee of Airgas under Section 3.5 is an international
transaction in which payment of Canadian Dollars in Toronto, Ontario,
Canada, is of the essence, and Canadian Dollars shall be the currency of
account in all events in respect of the guaranty obligations of Airgas under
Section 3.5. The payment obligation of Airgas shall not be discharged by an
amount paid in another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on prompt
conversion to dollars and transfer to Toronto, Ontario, Canada, under normal
banking procedures does not yield the amount of dollars in Toronto, Ontario,
Canada due hereunder. In the event that any payment by Airgas, whether
pursuant to a judgment or otherwise, upon conversion and transfer does not
result in payment of such amount of dollars in Toronto, Ontario, Canada, the
Canadian Agent and the Canadian Lenders shall have a separate cause of action
against Airgas for the additional amount necessary to yield the amount due and
owing to the Canadian Agent and the Canadian Lenders.
(d) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS
AND THE CREDIT PARTIES 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.
11.11 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.
<PAGE> EX-91
11.12 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.
11.13 Binding Effect; Termination of Existing Credit Agreement and
$125,000,000 Credit Facility; Termination of This Credit Agreement.
(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 Credit Parties and the
Agents, and the U.S. 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 Credit Parties, the Agents and each Lender and their respective
successors and assigns. Airgas and the Lenders party to the Existing Credit
Agreement each hereby agrees that, at such time as this Credit Agreement shall
have become effective pursuant to the terms of the immediately preceding
sentence, (i) the Existing Credit Agreement and the Commitments thereunder and
as defined therein automatically shall be terminated and (ii) all of the
promissory notes executed by Airgas in connection with the Existing Credit
Agreement (A) automatically shall be canceled and (B) shall be returned
promptly to Airgas. Airgas, NationsBank and the Lenders party to that certain
Credit Agreement dated as of June 30, 1997 among Airgas, NationsBank and the
lenders party thereto (the "$125,000,000 Credit Facility"), each hereby agrees
that, at such time as this Credit Agreement shall have become effective
pursuant to the terms of the immediately preceding sentence, (i) the
$125,000,000 Credit Facility and the Commitments thereunder and as defined
therein automatically shall be terminated and (ii) all of the promissory notes
executed by Airgas in connection with the $125,000,000 Credit Facility (A)
automatically shall be canceled and (B) shall be returned promptly to Airgas.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations 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.
11.14 Confidentiality.
The Agents 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 Agents or any such Lender by or on behalf the Credit Parties
(whether before or after the Closing Date) which relates to the Consolidated
Parties (the "Information"). Notwithstanding the foregoing, the Agents and
each Lender shall be permitted to disclose Information (i) to its
Subsidiaries, its Affiliates under direct or indirect common control with it,
its officers, its directors, its employees, its agents and its representatives
who need to know such Information 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 such
Agent or such Lender on a non-confidential basis from a source other than the
Credit Parties or (C) was available to the Agents or such Lender on a non-
<PAGE> EX-92
confidential basis prior to its disclosure to such Agent or such Lender by the
Credit Parties; (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 reasonable
to Airgas furnished to and for the benefit of the Credit Parties to be bound
by the terms of this Section 11.14; or (v) to the extent that the Credit
Parties shall have consented in writing to such disclosure. Nothing set forth
in this Section 11.14 shall obligate the Agents or any Lender to return any
materials furnished by the Credit Party.
11.15 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.
[The remainder of this page has been left blank intentionally.]
<PAGE>
<PAGE> EX-93
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date
first above written.
CREDIT PARTIES:
AIRGAS, INC.
By____________________________
Thomas C. Deas, Jr.
Vice President/Finance
AIRGAS CANADA INC.,
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
RED-D-ARC LIMITED
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
AIRGAS ONTARIO INC.
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
[Signatures continued]<PAGE>
<PAGE> EX-94
U.S. LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as U.S. Agent
By_____________________________
Title__________________________
THE BANK OF NEW YORK
By_____________________________
Title__________________________
FIRST UNION NATIONAL BANK
By_____________________________
Title__________________________
CORESTATES BANK, N.A.
By_____________________________
Title__________________________
BANK OF AMERICA NT&SA
By_____________________________
Title__________________________
THE FIRST NATIONAL BANK OF CHICAGO
By_____________________________
Title__________________________
<PAGE> EX-95
CIBC INC.
By_____________________________
Title__________________________
PNC BANK NATIONAL ASSOCIATION
By_____________________________
Title__________________________
FLEET BANK N.A.
By_____________________________
Title__________________________
THE SANWA BANK, LIMITED
NEW YORK BRANCH
By_____________________________
Title__________________________
SOCIETE GENERALE
By_____________________________
Title__________________________
THE BANK OF NOVA SCOTIA
By_____________________________
Title__________________________
BANK AUSTRIA AKTIENGESELLSCHAFT
By_____________________________
Title__________________________
<PAGE> EX-96
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By_____________________________
Title__________________________
THE FUJI BANK, LIMITED
By_____________________________
Title__________________________
MELLON BANK, N.A.
By_____________________________
Title__________________________
SUNTRUST BANK, ATLANTA
By_____________________________
Title__________________________
By_____________________________
Title__________________________
THE SUMITOMO BANK, LIMITED
By_____________________________
Title__________________________
WACHOVIA BANK, N.A.
By_____________________________
Title__________________________
<PAGE> EX-97
CANADIAN LENDERS:
CANADIAN IMPERIAL BANK OF COMMERCE,
individually in its capacity as a Lender and in its
capacity
as Canadian Agent
By_____________________________
Title__________________________
BANK OF AMERICA CANADA
By_____________________________
Title__________________________
FIRST CHICAGO NBD BANK, CANADA
By_____________________________
Title__________________________
THE BANK OF NOVA SCOTIA
By_____________________________
Title__________________________
MELLON BANK CANADA
By_____________________________
Title__________________________
<PAGE>
<PAGE> EX-98
Schedule 1.1A
APPLICABLE PERCENTAGES
Pricing Pricing Pricing Pricing Pricing Pricing
Level I Level II Level III Level IV Level V Level VI
If the If the If the If the If the If the
Borrower's Borrower's Borrower's Borrower's Borrower's Borrower's
long term long term long term long term long term long term
credit rating credit rating credit rating credit rating credit credit
is at least is at least is at least is at least rating is ratings
A- by S&P or BBB+ by S&P BBB by S&P, BBB- by S&P at least BB+ in Levels
A3 by Moody's or Baa1 by or Baa2 by or Baa3 by by S&P,orBa1 I-V do
Moody's Moody's Moody's by Moody's not apply
_____________ ___________ ___________ ___________ ___________ _________
Applicable Percentage
for Eurodollar Loans:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
Applicable Percentage
for Bankers'Acceptances:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
Applicable Percentage
for Unused Revolving
U.S. Commitment Fee:
0.085% 0.100% 0.125% 0.150% 0.200% 0.250%
Applicable Percentage
for Unused 364-Day
Revolving Commitment Fee:
0.085% 0.100% 0.125% 0.150% 0.200% 0.250%
Applicable Percentage
for Unused Revolving
Canadian Commitment Fee:
0.085% 0.100% 0.125% 0.150% 0.200% 0.250%
Applicable Percentage
for Standby U.S. Letter
of Credit Fee:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
Applicable Percentage
for Trade U.S. Letter of
Credit Fee:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
Applicable Percentage
for Standby Canadian
Letter of Credit Fee:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
Applicable Percentage
for Trade Canadian
Letter of Credit Fee:
0.250% 0.300% 0.375% 0.450% 0.625% 0.875%
<PAGE>
<PAGE> EX-99
Schedule 1.1B
EXISTING CANADIAN LETTERS OF CREDIT<PAGE>
<PAGE> EX-100
Schedule 1.1C
EXISTING U.S. LETTERS OF CREDIT<PAGE>
<PAGE> EX-101
Schedule 1.1D
NATIONAL WELDERS LIENS
<PAGE>
<PAGE> EX-102
Schedule 1.1E
LIENS
<PAGE>
<PAGE> EX-103
Schedule 2.1(a)
SCHEDULE OF LENDERS AND COMMITMENTS
<PAGE>
<PAGE> EX-104
Schedule 2.1(b)(i)
FORM OF NOTICE OF U.S. BORROWING
TO: NationsBank, N.A., as U.S. Agent
100 North Tryon Street
Charlotte, North Carolina 28255
RE: Ninth Amended and Restated Credit Agreement dated as of
December 5, 1997 among Airgas, Inc. ("Airgas"), Airgas Canada
Inc., Red-D-Arc Limited and Airgas Ontario Inc. (each a
"Canadian Borrower"), NationsBank, N.A., as U.S. Agent,
Canadian Imperial Bank of Commerce, as Canadian Agent and
the Lenders party thereto (as amended or modified from time to
time, the "Credit Agreement").
DATE: _____________, 199__
______________________________________________________________________________
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall
have the meanings set forth in the Credit Agreement.
2. Please be advised that Airgas is requesting:
(a) ______ a U.S. Revolving Loan in the amount of $__________ be funded
on ____________, 199__ to accrue interest at the interest rate set forth in
paragraph 4 below. Subsequent to the funding of the requested U.S. Revolving
Loan, the aggregate amount of outstanding U.S. Revolving Loans will be
$___________; or
(b) ______ a 364-Day Revolving Loan in the amount of $___________ be
funded on ___________ 199__ to accrue interest at the interest rate set forth
in paragraph 5 below. Subsequent to the funding of the requested 364-Day
Revolving Loan, the aggregate amount of outstanding 364-Day Revolving Loans
will be $___________.
3. The interest rate option applicable to the requested U.S. Revolving Loan
set forth in paragraph 2(a) above shall be:
a. ________ the U.S. Base Rate; or
b. ________ the Eurodollar Rate plus the Applicable Percentage for
Eurodollar Loans for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
4. The interest rate option applicable to the requested 364-Day Revolving
Loan by Airgas as set forth in paragraph 2(b) above shall be:
a. ________ the U.S. Base Rate; or
<PAGE> EX-105
b. ________ the Eurodollar Rate plus the Applicable Percentage for
Eurodollar Loans for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
5. The representations and warranties made in the Credit Agreement are true
and correct in all material respects at and as if made on the date hereof.
6. As of the date hereof, no Default or Event of Default has occurred and is
continuing or would be caused by the requested Revolving Loan .
7. No Material Adverse Effect has occurred since the Closing Date.
8. Immediately after giving effect to the making of the requested Loan, (A)
in the case of Revolving U.S. Loans, the sum of the aggregate principal amount
of outstanding Revolving U.S. Loans plus the aggregate principal amount of
outstanding Competitive U.S. Loans plus the aggregate principal amount of
outstanding U.S. Swingline Loans plus U.S. LOC Obligations outstanding shall
not exceed the Revolving U.S. Committed Amount and (B) in the case of 364-Day
Revolving Loans, the sum of the aggregate principal amount of outstanding
364-Day Revolving Loans shall not exceed the 364-Day Revolving Committed
Amount.
By:
Title:
<PAGE>
<PAGE> EX-106
Schedule 2.1(e)
FORM OF U.S. REVOLVING NOTE
U.S.$_________________ December 5, 1997
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation
("Airgas"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of NationsBank, N.A.,
as U.S. Agent (the "U.S. Agent"), at 101 N. Tryon Street, Independence Center,
NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place or
places as the holder hereof may designate), at the times set forth in the
Ninth Amended and Restated Credit Agreement dated as of the date hereof among
Airgas, the Canadian Borrowers, the Lenders, the U.S. Agent and the Canadian
Agent (as it may be amended, modified, extended or restated 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 U.S. Dollars and in immediately available
funds, the principal amount of ________________________U.S. DOLLARS
(U.S.$____________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Revolving U.S. Loans made by the Lender to
Airgas 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 2.1(d) of
the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
4.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of Airgas 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 Airgas.
In the event this Note is not paid when due at any stated or accelerated
maturity, Airgas agrees to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees.
IN WITNESS WHEREOF, Airgas has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
AIRGAS, INC.
By____________________________
Thomas C. Deas
Vice President/Finance
<PAGE>
<PAGE> EX-107
Schedule 2.2(i)
FORM OF U.S. COMPETITIVE NOTE
U.S.$625,000,00 December 5, 1997
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation
("Airgas"), hereby promises to pay to the order of __________________________,
its successors and permitted assigns (the "Lender") at such place or places as
the holder hereof may designate from time to time, at the times set forth in
the Ninth Amended and Restated Credit Agreement dated as of the date hereof
among Airgas, the Canadian Borrowers, the Lenders, the U.S. Agent and the
Canadian Agent (as it may be amended, modified, extended or restated 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 U.S. Dollars and in immediately
available funds, the principal amount of SIX HUNDRED TWENTY-FIVE MILLION U.S.
DOLLARS (U.S.$625,000,000) or, if less than such principal amount, the
aggregate unpaid principal amount of all Competitive U.S. Loans made by the
Lender to Airgas pursuant to the Credit Agreement, and to pay interest from
the date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with Section 2.2
of the Credit Agreement and in the respective Competitive U.S. Bid
applicable to each Competitive U.S. Loan borrowing evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
4.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of Airgas to the Lender shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by Airgas.
In the event this Note is not paid when due at any stated or accelerated
maturity, Airgas agrees to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees.
IN WITNESS WHEREOF, Airgas has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
AIRGAS, INC.
By____________________________
Thomas C. Deas
Vice President/Finance
<PAGE>
<PAGE> EX-108
Schedule 2.4(d)
FORM OF U.S. SWINGLINE NOTE
U.S.$__________ December 5, 1997
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation
("Airgas"), hereby promises to pay to the order of NATIONSBANK, N.A., its
successors and assigns (the "U.S. Swingline Lender"), at the office of
NationsBank, N.A., as U.S. Agent (the "U.S. Agent"), at 101 N. Tryon Street,
Independence Center, NC1-001-15-04, Charlotte, North Carolina 28255
(or at such other place or places as the holder hereof may designate), at the
times set forth in the Ninth Amended and Restated Credit Agreement dated as of
the date hereof among Airgas, the Canadian Borrowers, the Lenders, the U.S.
Agent and the Canadian Agent (as it may be amended, modified, extended or
restated 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 U.S. Dollars
and in immediately available funds, the principal amount of FIFTEEN MILLION
U.S. DOLLARS (U.S.$15,000,000) or, if less than such principal amount, the
aggregate unpaid principal amount of all U.S. Swingline Loans made by the U.S.
Swingline Lender to Airgas pursuant to the Credit Agreement, and to pay
interest from the date hereof on the unpaid principal amount hereof, in
like money, at said office, on the dates and at the rates selected in
accordance with Section 2.4(c) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
4.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of Airgas to the U.S. Swingline Lender
shall become immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which are hereby waived by Airgas.
In the event this Note is not paid when due at any stated or accelerated
maturity, Airgas agrees to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees.
IN WITNESS WHEREOF, Airgas has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
AIRGAS, INC.
By____________________________
Thomas C. Deas
Vice President/Finance<PAGE>
<PAGE> EX-109
Schedule 2.5(e)
FORM OF 364-DAY REVOLVING NOTE
U.S.$_________________ December 5, 1997
FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation
("Airgas"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of NationsBank, N.A.,
as U.S. Agent (the "U.S. Agent"), at 101 N. Tryon Street, Independence Center,
NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place or
places as the holder hereof may designate), at the times set forth in the
Ninth Amended and Restated Credit Agreement dated as of the date hereof among
Airgas, the Canadian Borrowers, the Lenders, the U.S. Agent and the Canadian
Agent (as it may be amended, modified, extended or restated 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 U.S. Dollars and in immediately available
funds, the principal amount of ________________________U.S. DOLLARS
(U.S.$____________) or, if less than such principal amount, the aggregate
unpaid principal amount of all 364-Day Revolving Loans made by the Lender to
Airgas 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 2.5(d) of
the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
4.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of Airgas 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 Airgas.
In the event this Note is not paid when due at any stated or accelerated
maturity, Airgas agrees to pay, in addition to the principal and interest, all
costs of collection, including reasonable attorneys' fees.
IN WITNESS WHEREOF, Airgas has caused this Note to be duly executed by
its duly authorized officer as of the day and year first above written.
AIRGAS, INC.
By____________________________
Thomas C. Deas
Vice President/Finance<PAGE>
<PAGE> EX-110
Schedule 3.1(b)(i)
FORM OF NOTICE OF CANADIAN BORROWING
TO: Canadian Imperial Bank of Commerce, as Canadian
Agent
_________________
___________________
RE: Ninth Amended and Restated Credit Agreement dated as of
December 5, 1997 among Airgas, Inc. ("Airgas"), Airgas Canada
Inc., Red-D-Arc Limited and Airgas Ontario Inc. (each a
"Canadian Borrower"), NationsBank, N.A., as U.S. Agent,
Canadian Imperial Bank of Commerce, as Canadian Agent and
the Lenders party thereto (as amended or modified from time to
time, the "Credit Agreement").
DATE: _____________, 199__
______________________________________________________________________________
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall
have the meanings set forth in the Credit Agreement.
2. Please be advised that [the Canadian Borrower] is requesting:
(a)_____ a Canadian Revolving Loan in the amount of $___________ be
funded on ____________ 199__ to accrue interest at the Canadian Base
Rate.
Subsequent to the funding of the requested Canadian Revolving Loan, the
aggregate amount of outstanding Canadian Revolving Loans will be
$___________; or
(b)_____ the Canadian Lenders to create Bankers' Acceptances in the
aggregate amount of $___________ on ____________, 199__ for the
following period:
________ 30 days
________ 60 days
________ 90 days
________ 120 days
________ 180 days
________ [ ] days
3. The representations and warranties made in the Credit Agreement are true
and correct in all material respects at and as if made on the date hereof.
4. As of the date hereof, no Default or Event of Default has occurred and is
continuing or would be caused by the requested Revolving Loan or Bankers'
Acceptances.
5. No Material Adverse Effect has occurred since the Closing Date.
<PAGE> EX-111
6. Immediately after giving effect to the making of the requested Loan or of
the creation of the requested Bankers' Acceptance, as the case may be, the sum
of the aggregate principal amount of outstanding Revolving Canadian Loans plus
the aggregate principal amount of outstanding Canadian Swingline Loans plus
Canadian LOC Obligations outstanding plus BA Outstandings shall not exceed the
Revolving Canadian Committed Amount.
By:
Name:
Title:
Schedule 3.1(e)
<PAGE>
<PAGE> EX-112
FORM OF CANADIAN REVOLVING NOTE
C$_________________ December 5, 1997
FOR VALUE RECEIVED, [CANADIAN BORROWER], a __________
corporation (the "Canadian Borrower"), hereby promises to pay to the order of
__________________________, its successors and assigns (the "Lender"), at the
office of Canadian Imperial Bank of Commerce., as Canadian Agent (the
"Canadian Agent"), at __________________ (or at such other place or places as
the holder hereof may designate), at the times set forth in the Ninth Amended
and Restated Credit Agreement dated as of the date hereof among Airgas, Inc.,
the Canadian Borrowers, the Lenders, the U.S. Agent and the Canadian Agent (as
it may be amended, modified, extended or restated 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 immediately available funds, the principal
amount of ________________________CANADIAN DOLLARS (C$____________) or, if
less than such principal amount, the aggregate unpaid principal amount of all
Revolving Canadian Loans made by the Lender to the Canadian 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 rate set forth in Section 3.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
4.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of the Canadian 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 Canadian
Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Canadian Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the Canadian Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
[CANADIAN BORROWER]
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
<PAGE>
<PAGE> EX-113
Schedule 4.2
FORM OF NOTICE OF EXTENSION/CONVERSION
NationsBank, N.A.,
as Agent for the Lenders
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, [Airgas, Inc.] (the "Borrower"), refers to the Ninth Amended
and Restated Credit Agreement dated as of December 5, 1997 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"),
among the Airgas, Inc., the Canadian Borrowers, the Lenders, NationsBank,
N.A., as U.S. Agent and Canadian Imperial Bank of Commerce as Canadian Agent.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower
hereby gives notice pursuant to Section 4.2 of the Credit Agreement that it
requests an extension or conversion of a [___________ Loan] outstanding under
the Credit Agreement, and in connection therewith sets forth below the terms
on which such extension or conversion is requested to be made:
(A)Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period)_______________________
(B)Principal Amount of
Extension or Conversion _______________________
(C)Interest rate basis _______________________
(D)Interest Period and the
last day thereof _______________________
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (a)(ii) of such Section, and confirms that the
matters referenced in subsections (ii), (iii), (iv) and (v) of such Section,
are true and correct.
Very truly yours,
[BORROWER]
By:____________________________
Title:_________________________
<PAGE>
<PAGE> EX-114
Schedule 4.4
FORM OF
NEW COMMITMENT AGREEMENT
Reference is made to the Ninth Amended and Restated Credit Agreement
dated as of December 5, 1997 (as amended, modified, extended or restated from
time to time, the "Credit Agreement") among by and among Airgas, Inc., a
Delaware corporation ("Airgas"), the other Credit Parties party thereto, the
Lenders party thereto, NationsBank, N.A., as U.S. Agent and Canadian Imperial
Bank of Commerce as Canadian Agent. All of the defined terms in the Credit
Agreement are incorporated herein by reference.
1. Effective as of the Effective Date set forth below, the undersigned
Lender hereby confirms its Additional Commitment, in an aggregate principal
amount of up to the amount set forth below, the commitment of such Lender in
an aggregate principal amount up to the amount specified below to [(i) make
Revolving U.S. Loans in accordance with the provisions of Section 2.1(a), (ii)
make 364-Day Revolving Loans in accordance with the provisions of Section
2.5(a), as applicable, (iii) purchase participation interests in U.S. Letters
of Credit in accordance with the provisions of Section 2.3(c) and (iv) to
purchase participation interests in the U.S. Swingline Loans in accordance
with the provisions of Section 2.4(b)(iii)]* [to (i) make Revolving Canadian
Loans in accordance with the provisions of Section 3.1(a), (ii) purchase
participation interests in Canadian Letters of Credit in accordance
with the provisions of Section 3.3(c) and (iii) issue Bankers' Acceptances in
accordance with the provisions of Section 3.4].** If the undersigned Lender
is already a Lender under the Credit Agreement, such Lender acknowledges and
agrees that such Additional Commitment is in addition to any existing
Commitment of such Lender under the Credit Agreement. If the undersigned
Lender is not already a Lender under the Credit Agreement, such Lender hereby
acknowledges, agrees and confirms that, by its execution of this New
Commitment Agreement, such Lender will, as of the Effective Date, be a party
to the Credit Agreement and be bound by the provisions of the Credit Agreement
and, to the extent of its Commitment, have the rights and obligations of a
Lender thereunder.
2. This New Commitment Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
Amount of Additional Commitment _____________________
Effective Date of Additional Commitment ________________, 19__
*To be used if the New Commitment being provided is a Commitment in U.S.
Dollars
**To be used if the New Commitment being provided is a Commitment in Canadian
Dollars The terms set forth above are hereby agreed to:
[Lender]
By:___________________________
Title:
<PAGE> EX-115
CONSENTED TO (as required by the Credit Agreement):
NATIONSBANK, N.A.,
as U.S. Agent [BORROWER]
By:____________________________ By:____________________________
Title: Title:
<PAGE>
<PAGE> EX-116
Schedule 5.1(c)
FORM OF LEGAL OPINION MCCAUSLAND, KEEN & BUCKMAN
<PAGE>
<PAGE> EX-117
Schedule 5.1(d)
FORM OF LEGAL OPINION BLANEY, MCMURTRY, STAPELLS, FRIEDMAN
<PAGE>
<PAGE> EX-118
Schedule 5.1(e)
FORM OF LEGAL OPINION MOORE & VAN ALLEN, PLLC
December 5, 1997
To the Lenders party to the Credit
Agreement referred to below,
NationsBank, N.A., as U.S. Agent thereunder
Canadian Imperial Bank of Commerce,
as Canadian Agent thereunder
Ladies and Gentlemen:
We have acted as special counsel to the U.S. Agent, the Canadian Agent
and the Lenders party to that certain Credit Agreement of even date herewith
among Airgas, Inc. ("Airgas"), Airgas Canada Inc., Red-D-Arc Limited and
Airgas Ontario Inc. (each a "Canadian Borrower" and, together with Airgas, the
"Credit Parties"), the Lenders party thereto, NationsBank, N.A., as U.S.
Agent, and Canadian Imperial Bank of Commerce, as Canadian Agent thereunder
(the "Credit Agreement"). This opinion is delivered to you pursuant to
Section 5.1(e) of the Credit Agreement. Terms defined in the Credit Agreement
are incorporated herein by reference.
In connection with this opinion, we have examined the originals, or
certified, conformed or reproduction copies, of all records, agreements,
instruments and documents as we have deemed relevant or necessary as the basis
for the opinions hereinafter expressed. In stating our opinion, we have
assumed the genuineness of all signatures on original or certified copies, the
authenticity of documents submitted to us as originals and the conformity to
original or certified copies of all copies submitted to us as certified or
reproduction copies.
We have also assumed, for purposes of the opinions expressed herein, (i)
that the parties to the Credit Documents have the corporate power and
authority to enter into and perform the Credit Documents and that the Credit
Documents have been duly authorized, executed and delivered by each such party
and (ii) the delivery of the consideration for the Credit Documents.
The opinions expressed herein are subject to the following further
assumptions,
limitations, qualifications and exceptions:
(a) Certain rights, remedies and waivers contained in the Credit
Documents may be rendered ineffective, or may be limited, by applicable laws
or judicial decisions governing such provisions, but such laws and judicial
decisions do not, in our opinion, make the Credit Documents inadequate for the
practical realization of the benefits and security which the Credit Documents
purport to provide.
(b) We express no opinion as to perfection of any lien on or security
interest in (or the priority of any lien on or security interest in) any
collateral securing any of the obligations of the Credit Parties under the
Credit Documents.
Based upon the foregoing, and subject to the limitations set forth
herein, we are of the opinion that the Credit Documents constitute the legal,
valid and binding obligation of each Credit Party, enforceable in accordance
with their respective terms except to the extent that enforcement may be
<PAGE> EX-119
limited by applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by equity principles (regardless of whether enforcement is sought in equity or
at law). Without limiting the generality of the foregoing, we express no
opinion as to the applicability to the obligations of any Credit Party under
the Credit Documents of Section 548 of the Bankruptcy Code or North Carolina
General Statutes Section 39-15 relating to fraudulent transfers and
obligations.
This opinion is limited to the federal law of the United States of
America and the law of the State of North Carolina in effect on the date
hereof.
This opinion is rendered solely for your benefit in connection with the
transaction described above and may not be used or relied upon by any other
person and may not be disclosed, quoted, filed with a governmental agency or
otherwise referred to without our prior written consent except to your bank
examiners, auditors, and counsel and to prospective transferees of your
interests under the Credit Documents and their professional advisers, or as
required by law or pursuant to legal process.
Very truly yours,
MOORE & VAN ALLEN, PLLC
<PAGE>
<PAGE> EX-120
Schedule 6.6
LITIGATION
<PAGE>
<PAGE> EX-121
Schedule 6.14
SUBSIDIARIES<PAGE>
<PAGE> EX-122
Schedule 7.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 19___.
I, ______________________, [Title] of Airgas, Inc. ("Airgas") hereby certify
that, to the best of my knowledge and belief, with respect to that certain
Ninth Amended and Restated Credit Agreement dated as of December 5, 1997 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"; all of the defined terms in the Credit Agreement are incorporated
herein by reference) among Airgas, the Canadian Borrowers, the Lenders party
thereto, NationsBank, N.A., as U.S. Agent and Canadian Imperial Bank of
Commerce as Canadian Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have been
prepared in accordance with GAAP applied on a consistent basis, subject to
changes resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or, if
none, the Closing Date) no Default or Event of Default has occurred under the
Credit Agreement; and
Delivered herewith are detailed calculations demonstrating compliance by the
Consolidated Parties with the financial covenants contained in Section 7.10 of
the Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 19__.
AIRGAS, INC.
Name:___________________________
Title:__________________________
<PAGE>
<PAGE> EX-123
Attachment to Officer's Certificate
Computation of Financial Covenants
<PAGE>
<PAGE> EX-124
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 Ninth Amended and Restated Credit Agreement dated as
of December 5, 1997, as amended and modified from time to time thereafter (the
"Credit Agreement") among Airgas, Inc., the Canadian Borrowers, the Lenders
party thereto, NationsBank, N.A., as U.S. Agent and Canadian Imperial Bank of
Commerce as Canadian 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 11.3(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) U.S. Commitment Percentage
Assigned (expressed as a percentage
set forth to at least 8 decimals) %
(f) U.S. 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-125
(g) U.S. 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) Revolving U.S. Committed Amount
as of Effective Date U.S.$_____________
(i) U.S. Dollar Amount of Assignor's
U.S. Commitment Percentage
as of the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (g)) U.S.$_____________
(j) U.S. Dollar Amount of Assignee's
U.S. Commitment Percentage
as of the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (f)) U.S.$_____________
(k) Canadian Commitment Percentage
Assigned (expressed as a percentage
set forth to at least 8 decimals) %
(l) Canadian Commitment Percentage
of Assignee after giving effect
to this Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
(m) Canadian Commitment Percentage
of Assignor after giving effect
to this Assignment and Acceptance
as of the Effective Date
(set forth to at least 8 decimals) %
(n) Revolving Canadian Committed Amount
as of Effective Date C$_____________
(o) Canadian Dollar Amount of Assignor's
Canadian Commitment Percentage
as of the Effective Date (the amount
set forth in (n) multiplied by
the percentage set forth in (m)) C$_____________
(p) Canadian Dollar Amount of Assignee's
Canadian Commitment Percentage
as of the Effective Date (the amount
set forth in (n) multiplied by
the percentage set forth in (l)) C$_____________
4.This Assignment and Acceptance shall be effective only upon consent of U.S.
Agent [Airgas] [and the Canadian Agent], if applicable, delivery to the
[U.S./Canadian] of this Assignment and Acceptance together with the transfer
fee payable pursuant to Section 11.3(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-126
The terms set forth above
are hereby agreed to:
____________________, as Assignor
By:_____________________________________
Title:__________________________________
_____________________, as Assignee
By:_____________________________________
Title:__________________________________
CONSENTED TO:
NATIONSBANK, N.A.,
as U.S. Agent
By:____________________________________
Title:_________________________________
AIRGAS, INC.
By:____________________________________
Title:_________________________________
<PAGE>
<PAGE>
<PAGE> EX-127
EXHIBIT 11
AIRGAS, INC.
EARNINGS PER SHARE CALCULATIONS
Three Months Ended Nine Months Ended
December 31, December 31,
1997 1996 1997 1996
____ ____ ____ ____
Adjustment of Weighted Average
Shares Outstanding:
Shares of common stock
outstanding - weighted 69,580,000 67,350,000 68,240,000 65,400,000
Net common stock equivalents 1,920,000 2,850,000 2,260,000 2,800,000
__________ __________ __________ __________
Adjusted shares outstanding 71,500,000 70,200,000 70,500,000 68,200,000
========== ========== ========== ==========
Net earnings $11,826,000 $10,960,000 45,727,000 33,420,000
========== ========== ========== ==========
Diluted earnings per share $ .17 $ .16 $ .65 $ .49
========== ========= ========== =========
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>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-1998
<PERIOD-END> DEC-31-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 172,077
<ALLOWANCES> 5,780
<INVENTORY> 158,689
<CURRENT-ASSETS> 367,407
<PP&E> 683,915
<DEPRECIATION> 217,117
<TOTAL-ASSETS> 1,597,188
<CURRENT-LIABILITIES> 194,926
<BONDS> 808,808
<COMMON> 713
0
0
<OTHER-SE> 417,287
<TOTAL-LIABILITY-AND-EQUITY> 1,597,188
<SALES> 1,059,578
<TOTAL-REVENUES> 1,059,578
<CGS> 565,086
<TOTAL-COSTS> 565,086
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 39,234
<INCOME-PRETAX> 77,381
<INCOME-TAX> 31,654
<INCOME-CONTINUING> 45,727
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 45,727
<EPS-PRIMARY> .65
<EPS-DILUTED> .65
<PAGE>
</TABLE>
