EX-17
[EXECUTION COPY]
SIXTH AMENDED AND RESTATED
LOAN AGREEMENT
DATED AS OF AUGUST 30, 1994
BY AND AMONG
AIRGAS, INC.
AND
AIRGAS HOLDINGS, INC.
AS BORROWERS,
THE BANKS NAMED HEREIN,
AND
NATIONSBANK OF NORTH CAROLINA, N.A.,
AS AGENT
EX-18
Table of Contents
Section Title Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
1.01 Definitions . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms. . . . . . . . . . . . . . . . .15
ARTICLE II REVOLVING LOANS . . . . . . . . . . . . . . . . .15
2.01 Revolving Credit Loans. . . . . . . . . . . . . .15
2.02 (a) Minimum Amounts. . . . . . . . . . . . . . .15
(b) Types of Revolving Credit Loans. . . . . . .16
(c) Notice . . . . . . . . . . . . . . . . . . .16
(d) Limitation on Numbers of
Revolving Credit Loans . . . . . . . . . .16
2.03 Revolving Credit Notes. . . . . . . . . . . . . .17
2.04 Revolving Credit Loan Interest Rates. . . . . . .17
2.05 (a) Commitment Fee . . . . . . . . . . . . . . .18
(b) Reduction of Revolving Credit Loan
Commitments. . . . . . . . . . . . . . . .18
ARTICLE III TERM LOANS. . . . . . . . . . . . . . . . . . . .19
3.01 (a) Term Loans . . . . . . . . . . . . . . . . .19
(b) Types of Term Loans. . . . . . . . . . . . .19
(c) Notice . . . . . . . . . . . . . . . . . . .19
(d) Limitation on Numbers of Term Loans. . . . .20
3.02 Term Notes . . . . . . . . . . . . . . . . . . .20
3.03 Term Loan Interest Rates. . . . . . . . . . . . .20
ARTICLE IV LETTER OF CREDIT TERM LOANS . . . . . . . . . . .21
4.01 (a) Letter of Credit Term Loans. . . . . . . . .21
(b) Types of Letter of Credit Term Loans . . . .21
4.02 Repayment of Letter of Credit Term Loans . . . .22
4.03 Letter of Credit Term Notes . . . . . . . . . . .22
4.04 Letter of Credit Term Loan Interest Rates . . . .22
ARTICLE V LETTERS OF CREDIT . . . . . . . . . . . . . . . .23
5.01 Letters of Credit . . . . . . . . . . . . . . . .23
(a) General Provisions . . . . . . . . . . . . .23
(b) Requests for Letters of Credit . . . . . . .24
(c) Participations of Banks in
Letters of Credit . . . . . . . . . . . . .24
(d) Reimbursement of Drawings. . . . . . . . . .24
(e) Indemnification of LC Agent. . . . . . . . .25
(f) Letter of Credit Fee(s). . . . . . . . . . .26
(g) Sharing of Letter of Credit Fees . . . . . .26
5.02 Additional Costs. . . . . . . . . . . . . . . . .27
5.03 Quarterly Reports Concerning Letters of Credit. .27
5.04 Guarantee Subsidiaries as Account Parties . . . .27
EX-19
ARTICLE VI BANKERS' ACCEPTANCES. . . . . . . . . . . . . . .27
6.01 Bankers' Acceptances. . . . . . . . . . . . . . .27
(a) General Provisions . . . . . . . . . . . . .27
(b) Requirements for Bankers' Acceptances;
Ratable Creation . . . . . . . . . . . . .28
(c) Requests for and Creation of
Bankers' Acceptances . . . . . . . . . . .29
(d) Reimbursement of Advances. . . . . . . . . .29
(e) Ineligible Bankers' Acceptances. . . . . . .30
(f) Records of Bankers' Acceptance Transactions.30
(g) Authorized Signatory . . . . . . . . . . . .30
(h) Guarantee Subsidiaries as Account Parties. .31
ARTICLE VII MONEY MARKET LOANS. . . . . . . . . . . . . . . .31
7.01 Money Market Loans. . . . . . . . . . . . . . . .31
(a) Money Market Loan Requests . . . . . . . . .31
(b) Money Market Quotes. . . . . . . . . . . . .31
(c) Acceptance of Money Market Quotes. . . . . .32
(d) Funding of Money Market Loans. . . . . . . .33
(e) Money Market Notes . . . . . . . . . . . . .33
(f) Limitations on Money Market Loans. . . . . .33
(g) Repayment of Money Market Loans. . . . . . .33
(h) Interest . . . . . . . . . . . . . . . . . .34
(i) Limitation on Money Market Loans . . . . . .34
(j) Money Market Loan Requests through Agent . .34
ARTICLE VIII ADDITIONAL PROVISIONS REGARDING
REVOLVING CREDIT LOANS, TERM LOANS,
LETTER OF CREDIT TERM LOANS,
MONEY MARKET LOANS AND BANKERS' ACCEPTANCES . . .34
8.01 Additional Interest Rate Provisions . . . . . . .34
(a) Default Rate . . . . . . . . . . . . . . . .34
(b) LIBOR Base Rate Unascertainable. . . . . . .35
(c) CD Base Rate Unascertainable . . . . . . . .35
8.02 Conversion and Continuation of Loans. . . . . . .36
8.03 Prepayments . . . . . . . . . . . . . . . . . . .38
8.04 Additional Costs. . . . . . . . . . . . . . . . .39
8.05 Changes in Laws or Regulations. . . . . . . . . .41
8.06 Compensations . . . . . . . . . . . . . . . . . .42
8.07 Payments and Prepayments. . . . . . . . . . . . .42
8.08 Capital Adequacy Protection . . . . . . . . . . .44
8.09 HLT Classification. . . . . . . . . . . . . . . .44
8.10 Limitation of Liability of Holdings . . . . . . .45
ARTICLE IX CONDITIONS PRECEDENT AS OF CLOSING DATE . . . . .46
9.01 Conditions Precedent to Initial Loans . . . . . .46
ARTICLE X CONDITIONS OF LENDING . . . . . . . . . . . . . .47
10.01 Conditions of Lending . . . . . . . . . . . . . .47
10.02 Revolving Credit Loan Commitment
Limitation; Reaffirmation . . . . . . . . . . .47
EX-20
ARTICLE XI REPRESENTATIONS AND WARRANTIES. . . . . . . . . .48
11.01 (a) Incorporation. . . . . . . . . . . . . . . .48
(b) Power and Authority
to Own Properties and Assets . . . . . . .48
(c) Power and Authority to Execute,
Deliver and Perform the Loan Documents . .48
(d) Loan Documents Valid and Binding
Obligations. . . . . . . . . . . . . . . .48
(e) Execution, Delivery and Performance. . . . .48
(f) Title to Properties. . . . . . . . . . . . .49
(g) Subsidiaries . . . . . . . . . . . . . . . .49
(h) Interests in Other Person. . . . . . . . . .49
(i) Audited Balance Sheet. . . . . . . . . . . .49
(j) Litigation . . . . . . . . . . . . . . . . .49
(k) Compliance with Laws . . . . . . . . . . . .50
(l) Hazardous Materials. . . . . . . . . . . . .50
(m) Margin Stock; Regs G, U, T and X . . . . . .50
(n) Patents, Licenses and Trademarks . . . . . .50
(o) MEPP . . . . . . . . . . . . . . . . . . . .51
(p) "Investment" or "Holding" Company. . . . . .51
(q) (i) No Judgments, Orders, or Decrees. . . .51
(ii) No Defaults . . . . . . . . . . . . . .51
(r) Taxes. . . . . . . . . . . . . . . . . . . .51
(s) ERISA. . . . . . . . . . . . . . . . . . . .51
(t) Material Misstatement. . . . . . . . . . . .52
(u) No Governmental Approvals. . . . . . . . . .52
ARTICLE XII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . .52
12.01 Affirmative Covenants . . . . . . . . . . . . . .52
(a) (i) Annual Audited Financial Reports . . .52
(ii) Annual Projections. . . . . . . . . . .52
(b) Quarterly Financial Reports. . . . . . . . 52
(c) Financial Information Concerning Certain
Acquired Companies. . . . . . . . . . . .53
(d) Officer's Certification. . . . . . . . . . .53
(e) Stockholder and SEC Reports. . . . . . . . .53
(f) Other Information. . . . . . . . . . . . . .54
(g) Primary Depository . . . . . . . . . . . . .54
(h) Fiscal Year . . . . . . . . . . . . . . . .54
(i) Use of Loan Proceeds . . . . . . . . . . . .54
(j) Maintenance of Properties . . . . . . . . .54
(k) Maintenance of Corporate Existence . . . . .54
(l) Compliance with Laws . . . . . . . . . . . .54
(m) Hazardous Materials. . . . . . . . . . . . .54
(n) Indemnification of Banks.. . . . . . . . . .55
(o) Insurance. . . . . . . . . . . . . . . . . .55
(p) Patents. . . . . . . . . . . . . . . . . . .55
(q) Books of Records and Accounts. . . . . . . .55
(r) Inspection . . . . . . . . . . . . . . . . .56
(s) Certified Public Accountants . . . . . . . .56
(t) Notice of Event of Default . . . . . . . . .56
(u) Agent's Fee. . . . . . . . . . . . . . . . .56
(v) Other Notices. . . . . . . . . . . . . . . .56
(w) ERISA. . . . . . . . . . . . . . . . . . . .56
(x) Further Assurances . . . . . . . . . . . . .57
(y) New Subsidiaries . . . . . . . . . . . . . .57
EX-21
ARTICLE XIII NEGATIVE COVENANTS. . . . . . . . . . . . . . . .58
13.01 Negative Covenants. . . . . . . . . . . . . . . .58
(a) Indebtedness . . . . . . . . . . . . . . . .58
(b) Liens. . . . . . . . . . . . . . . . . . . .59
(c) Acquisitions, Consolidations, Mergers. . . .60
(d) Asset Dispositions . . . . . . . . . . . . .60
(e) Sale/Leaseback Transactions. . . . . . . . .61
(f) Dissolution, Liquidation or Termination. . .61
(g) Guarantees . . . . . . . . . . . . . . . . .61
(h) Investments. . . . . . . . . . . . . . . . .61
(i) Accounts Receivable. . . . . . . . . . . . .63
(j) Insider Transactions . . . . . . . . . . . .63
(k) Loans and Advances . . . . . . . . . . . . .64
(l) Dividends. . . . . . . . . . . . . . . . . .64
(m) Partnerships, Joint Ventures . . . . . . . .64
(n) Line of Business . . . . . . . . . . . . . .64
(o) Accounting Practices . . . . . . . . . . . .65
(p) Leverage Ratio . . . . . . . . . . . . . . .65
(q) Current Ratio. . . . . . . . . . . . . . . .65
(r) Fixed Charge Coverage Ratio. . . . . . . . .65
(s) Book Net Worth . . . . . . . . . . . . . . .65
(t) Payment of Subordinated Debt . . . . . . . .65
(u) Amendment of Senior Subordinated
Note Purchase Agreement. . . . . . . . . . .65
ARTICLE XIIIA INCORPORATION OF SUBORDINATED DEBT COVENANTS. . .66
ARTICLE XIV EVENTS OF DEFAULT AND ACCELERATION. . . . . . . .66
14.01 Events of Default and Acceleration. . . . . . . .66
ARTICLE XV THE AGENT . . . . . . . . . . . . . . . . . . . .69
15.01 Appointment and Authorization . . . . . . . . . .69
15.02 Reliance..... . . . . . . . . . . . . . . . . . .69
15.03 Responsibilities. . . . . . . . . . . . . . . . .69
15.04 Reliance Upon Communications. . . . . . . . . . .70
15.05 Event of Default. . . . . . . . . . . . . . . . .70
15.06 No Representations . . . . . . . . . . . . . . .70
15.07 Indemnification . . . . . . . . . . . . . . . . .71
15.08 Dealings with Credit Parties. . . . . . . . . . .71
15.09 Resignation . . . . . . . . . . . . . . . . . . .72
EX-22
ARTICLE XVI MISCELLANEOUS . . . . . . . . . . . . . . . . . .72
16.01 Notices . . . . . . . . . . . . . . . . . . . . .72
16.02 Waiver. . . . . . . . . . . . . . . . . . . . . .74
16.03 Survival. . . . . . . . . . . . . . . . . . . . .74
16.04 Costs . . . . . . . . . . . . . . . . . . . . . .74
16.05 Amendments. . . . . . . . . . . . . . . . . . . .75
16.06 Year . . . . . . . . . . . . . . . . . . . . . .76
16.07 Set-Off . . . . . . . . . . . . . . . . . . . . .76
16.08 Payment on Business Day . . . . . . . . . . . . .76
16.09 Counterparts . . . . . . . . . . . . . . . . . .76
16.10 Assignment . . . . . . . . . . . . . . . . . . .76
16.11 Term . . . . . . . . . . . . . . . . . . . . . .77
16.12 Joint and Several Obligations of Borrowers. . . .77
16.13 Governing Law . . . . . . . . . . . . . . . . . .77
16.14 Priority of Loans and Money Market Loans. . . . .78
16.15 Conversions to U.S. Currency. . . . . . . . . . .78
16.16 Return of Old Notes . . . . . . . . . . . . . . .78
16.17 Dealings by Banks With Credit Parties . . . . . .78
16.18 No Deduction for Foreign Taxes. . . . . . . . . .78
EX-23
Exhibits
Exhibit A Banks' Commitment Levels
Exhibit B Guaranty Agreement
Exhibit C Form of Guaranty Joinder Agreement
Exhibit D Contingent Liability
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Term Note
Exhibit G Form of Letter of Credit Term Note
Exhibit H Form of Request for Bankers' Acceptances
Exhibit I Form of Money Market Note
Exhibit J Form of Legal Opinion
Exhibit K Liens
Exhibit L Airgas Subsidiaries
Exhibit M Interest in Other Persons
Exhibit N Litigation
Exhibit O Form of Officer's Compliance Certificate
Exhibit P Insurance Coverage
Exhibit Q Existing Indebtedness
EX-24
Schedules
Schedule 1 $25,000,000 Senior Subordinated Note Purchase
Agreement
Schedule 2 $30,000,000 Senior Subordinated Note Purchase
Agreement
Schedule 3 Existing Letters of Credit
Schedule 4 Loan Documents for $30,000,000 NationsBank
Revolving Line of Credit
EX-25
SIXTH AMENDED AND RESTATED
LOAN AGREEMENT
THIS SIXTH AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 30,
1994 (the "Loan Agreement"), amends and restates that certain Fifth Amended
and Restated Loan Agreement dated as of October 13, 1993 (as amended from time
to time, the "Prior Loan Agreement") by and among Airgas, Inc. and certain of
its Subsidiaries and the Banks hereinafter referred to and defined and
NationsBank of North Carolina, N.A., as agent for such Banks, and is made by
and among
AIRGAS, INC., a Delaware corporation ("Airgas"); and
AIRGAS HOLDINGS, INC., a Delaware corporation ("Holdings" - Airgas and
Holdings may be referred to individually herein as a "Borrower" and
collectively as the "Borrowers");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association
("NationsBank");
THE BANK OF NEW YORK, a New York corporation ("BNY");
FIRST FIDELITY BANK, N.A., a national banking association ("Fidelity");
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, NA, a
national banking association ("PNB");
CONTINENTAL BANK, an Illinois state bank ("Continental");
MERIDIAN BANK, a Pennsylvania state bank ("Meridian");
NBD BANK, N.A., a national banking association ("NBD");
CIBC INC. , a Delaware corporation ("CIBC"); and
PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC" -
hereinafter, NationsBank, BNY, Fidelity, PNB, Continental, Meridian, NBD, CIBC
and PNC may be referred to individually as a "Bank" and collectively as the
"Banks"); and
NATIONSBANK NATIONAL BANK OF NORTH CAROLINA, N.A., a national banking
association (in its capacity as agent for the Banks, hereinafter referred to
in such capacity as the "Agent").
RECITALS:
A. The Borrowers have requested that the Banks provide the Borrowers
with a $250,000,000.00 credit facility for the purposes of (i) refinancing
certain existing indebtedness of Airgas and certain of its Subsidiaries to the
Banks, (ii) financing the acquisition of new Subsidiaries, (iii) financing
other investments permitted under this Loan Agreement and (iv) satisfying
capital expenditure, working capital and letter of credit needs of the
Borrowers and the Guarantee Subsidiaries.
EX-26
B. The Banks have agreed to provide the requested credit facility to
the Borrowers on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Borrowers, the Agent and the Banks agree as follows:
ARTICLE I
Definitions
1.01 For the purposes hereof:
"Adjusted Net Worth" means, as of any date of determination thereof, the
excess of (i) the amount of the "present fair saleable value" of the assets of
Holdings as of such date of determination, over (ii) the amount of all
"liabilities, contingent or otherwise", of Holdings as of such date of
determination, as such quoted terms are determined in accordance with
applicable Federal and state laws governing determinations of the insolvency
of debtors. In determining the Adjusted Net Worth of Holdings for purposes of
calculating Holdings' Maximum Obligated Amount in respect of any Extension of
Credit, the liabilities of Holdings to be used in such determination pursuant
to clause (ii) of the preceding sentence shall in any event include the
liabilities of Holdings hereunder in respect of all Extensions of Credit other
than the Extension of Credit in respect of which such calculation is being
made;
"Affiliate", with respect to any Person, means any other Person
(i) which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
first Person; or
(ii) which beneficially owns or holds 5% or more of any class of the
Voting Stock (or in the case of such first Person which is not a
corporation, 5% or more of the equity interest) of such first Person; or
(iii) of which 5% or more of the Voting Stock (or in the case of a
Person which is not a corporation, 5% or more of the equity interest) is
beneficially owned or held by such first Person;
"Applicable Margin" means, at any time, the applicable margin
corresponding to the ratios described below in effect as of the most recent
Rate Determination Date (as hereinafter defined):
EX-27
A. Revolving Credit Loans and Bankers' Acceptances
Applicable
Margin Applicable Applicable
for Margin Margin
Pricing Funded Debt Fixed Charge Eurodollar for for Bankers'
Level Coverage Ratio Coverage Ratio Loans CD Loans Acceptances
_______ ______________ ______________ _________ ________ ___________
V Equal to or Less than 1.50:1.00 1% 1 1/8% 1%
greater than
3.50:1.00
IV Less than Equal to or greater
3.50:1.00 but than 1.50:1.00 but
greater than less than 1.60:1.00 7/8% 1% 7/8%
or equal to
3.00:1.00
III Less than Equal to or greater
3.00:1.00 but than 1.60:1.00 but
greater than less than 2.00:1.00 3/4% 7/8% 3/4%
or equal to
2.50:1.00
II Less than Equal to or greater
2.50:1.00 but than 2.00:1.00 but
greater than less than 2.50:1.00 5/8% 3/4% 5/8%
or equal to
2.00:1.00
I Less than Equal to or greater
2.00:1.00 than 2.50:1.00 1/2% 5/8% 1/2%
B. Term Loans and Letter of Credit Term Loans
Applicable Applicable
Margin Margin
Pricing Funded Debt Fixed Charge for for
Level Coverage Ratio Coverage Ratio Eurodollar Loans CD Loans
______ ______________ _______________ ________________ _________
V Equal to or Less than 1.50:1.00 1 1/2% 1 5/8%
greater than
3.50:1.00
IV Less than Equal to or greater
3.50:1.00 but than 1.50:1.00 but
greater than less than 1.60:1.00 1 3/8% 1 1/2%
or equal to
3.00:1.00
EX-28
III Less than Equal to or greater
3.00:1.00 but than 1.60:1.00 but
greater than less than 2.00:1.00 1 1/4% 1 3/8%
or equal to
2.50:1.00
II Less than Equal to or greater
2.50:1.00 but than 2.00:1.00 but
greater than less than 2.50:1.00 1 1/8% 1 1/4%
or equal to
2.00:1.00
I Less than Equal to or greater
2.00:1:00 than 2.50:1.00 1% 1 1/8%
In the event that, as of any Rate Determination Date, the Leverage Ratio
and the Fixed Charge Coverage Ratio then applicable are at different Pricing
Levels, then the Applicable Margins in the higher of the two Pricing Levels
shall apply.
Determination of the appropriate Applicable Margin based on the Funded
Debt Coverage Ratio and the Fixed Charge Coverage Ratio shall be made as of
the Closing Date and as of each March 31, June 30, September 30 and December
31 thereafter (each such date a "Rate Determination Date"). The Funded Debt
Coverage Ratio and the Fixed Charge Coverage Ratio in effect as of a Rate
Determination Date (as calculated by the chief financial officer of Airgas and
set forth in the related statement of such chief financial officer delivered
to the Banks in accordance with Section 12.01(d) hereof) shall establish the
Applicable Margins for the second calendar quarter immediately following such
Rate Determination Date. A change in the Applicable Margins shall be
effective as of the first day of the second calendar quarter after the Rate
Determination Date giving rise to such change and shall be applicable
thereafter until the effective date of any subsequent change. The Agent shall
(i) verify the calculations of the Funded Debt Coverage Ratio and the Fixed
Charge Coverage Ratio provided by the chief financial officer of Airgas as
described above for each Rate Determination Date and (ii) determine the
Applicable Margins as of each Rate Determination Date. The Agent shall
promptly notify the Borrowers and the Banks of the Applicable Margins so
determined. Such determinations by the Agent of the Applicable Margins shall
be conclusive absent manifest error. The Applicable Margins as of the Closing
Date are 3/4% for Revolving Credit Loans which are Eurodollar Loans, 7/8%
for Revolving Credit Loans which are CD Loans and 3/4% for Bankers'
Acceptances.
"BA Discount Rate" means, with respect to any Bankers' Acceptance, the
rate per annum (computed on the basis of a year of 360 days) equal to the sum
of (i) the rate determined by the Agent to be the average (rounded upward to
the nearest whole multiple of 1/100 of 1%) of the current quoted discount
rates for bankers' acceptances of each of the Reference Banks on the date of
creation of such Bankers' Acceptance for bankers' acceptances in an amount
substantially equal to the face amount of the related Bankers' Acceptance to
be created by each such Reference Banks and having the same maturity as such
Bankers' Acceptance plus (ii) the Applicable Margin for Bankers' Acceptances
at such time determined in accordance with the definition of "Applicable
Margin" set forth in this Section 1.01;
EX-29
"BA Documents" means, with respect to any Bankers' Acceptance, such
documents and agreements as the applicable accepting Bank reasonably may
require in connection with the creation of such Bankers' Acceptance;
"BA Outstandings" means, at any time with respect to the Bankers'
Acceptances created by any Bank, the sum of (i) the maximum aggregate amount
which is, or at any time thereafter may become, payable by such Bank under all
Bankers' Acceptances of such Bank then outstanding, plus (ii) the aggregate BA
Reimbursement Obligations of such Bank at such time;
"BA Reimbursement Obligation" means, at any time with respect to any
Bankers' Acceptance of any Bank, any unpaid obligation of the Borrowers to
reimburse such Bank for amounts theretofore advanced by such Bank under such
Bankers' Acceptance;
"Bankers' Acceptance" means a draft drawn by the Borrowers (or by either
of them, or, as contemplated by Section 6.01(h) hereof, by a Guarantee
Subsidiary) on, and accepted and discounted by, a Bank pursuant to Section
6.01 hereof;
"Bankers' Acceptance Commitment", for each Bank, means the commitment of
such Bank to create Bankers' Acceptances in a maximum face amount equal to the
amount set forth beside the name of such Bank on Exhibit A hereto;
"Book Net Worth" means, at any time, consolidated net stockholders'
equity of Airgas and its Subsidiaries determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis excluding any
Capital Stock to which a Redemption Obligation relates so long as such
Redemption Obligation is outstanding;
"Borrowers' Obligations" means, without duplication, the obligations of
the Borrowers to the Banks, the Agent and the LC Agent (including the
obligations to pay principal of and interest on the Loans, the Money Market
Loans, the LC Reimbursement Obligations and the BA Reimbursement Obligations
and to pay all fees and other amounts payable by the Borrowers) hereunder and
under the Notes and the Money Market Notes;
"Business Day" means any day not a Saturday, Sunday or legal holiday on
which each of the Banks is open for business; provided, however, that, when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London Interbank Market;
"Canadian Lender" means a bank or other financial institution organized
and existing under the laws of Canada or any province or other political
subdivision thereof, or any subsidiary of such a Bank or other financial
institution;
"Canadian Subsidiary" means a direct or indirect Subsidiary of Airgas
which is organized and existing under the laws of Canada or any province or
other political subdivision thereof;
"Capital Base" means, at any time, the sum of (i) Funded Debt at such
time, plus (ii) Book Net Worth at such time;
"Capital Stock" means common stock and any class or series of preferred
stock;
EX-30
"CD Base Rate" means the rate, on the day of borrowing, bid by New York
certificate of deposit dealers of recognized standing for the purchase of
NationsBank's negotiable certificates of deposit at face value in the
requested amount and maturity, such rate being adjusted for the cost of (i)
reserve requirements as prescribed by the Board of Governors of the Federal
Reserve System and (ii) insurance premiums on certificates of deposit paid to
the Federal Deposit Insurance Corporation;
"CD Letter of Credit Term Loan" means a Letter of Credit Term Loan that
is a CD Loan;
"CD Loan" means a Loan bearing interest based on the CD Base Rate in
accordance with the provisions of Articles II, III, IV and VIII hereof;
"CD Revolving Credit Loan" means a Revolving Credit Loan that is a CD
Loan;
"CD Term Loan" means a Term Loan that is a CD Loan;
"Closing Date" means the date as of which this Loan Agreement is executed
by the Borrowers, the Banks and the Agent and all of the conditions precedent
set forth in Article IX hereof have been satisfied;
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a) hereof;
"Consistent Basis", in reference to the application of Generally Accepted
Accounting Principles, means that the accounting principles observed in the
period referred to are comparable in all material respects to those applied in
the most recent preceding period;
"Controlled Group" means the group of trades or businesses under common
control as defined in Section 414(c) of the Internal Revenue Code of 1986 (as
the same may be amended from time to time) and the applicable regulations
thereunder, of which Airgas or any of its Subsidiaries is a part or may become
a part;
"Credit Party" means any of the Borrowers and the Guarantee Subsidiaries;
"Current Assets" means, at any time, all items which, according to
Generally Accepted Accounting Principles, would be classified as current
assets on a consolidated balance sheet of Airgas and its Subsidiaries;
"Current Liabilities" means, at any time, all items which, according to
Generally Accepted Accounting Principles, would be classified as current
liabilities on a consolidated balance sheet of Airgas and its Subsidiaries;
"Current Maturities" means, at any time, (i) current maturities of Long
Term Debt as of such time and (ii) short term notes payable by Airgas or any
of its Subsidiaries as of such time, all as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
"Current Ratio" means, at any time such calculation is made, the ratio
obtained by dividing Current Assets by Current Liabilities;
EX-31
"EBITDA" means, with respect to the twelve-month period ending on the
date such calculation is made, the sum of (i) Net Income for such period, plus
(ii) an amount which, in the determination of Net Income for such period, has
been deducted for (A) Interest Expense, (B) total Federal, state, local and
foreign income and similar taxes of Airgas and its Subsidiaries on a
consolidated basis and (C) depreciation and amortization expense of Airgas and
its Subsidiaries on a consolidated basis, all as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
"ERISA" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Eurodollar Letter of Credit Term Loan" means a Letter of Credit Term
Loan that is a Eurodollar Loan;
"Eurodollar Loan" means a Loan bearing interest based on the LIBOR Base
Rate in accordance with the provisions of Articles II, III, IV and VIII
hereof;
"Eurodollar Revolving Credit Loan" means a Revolving Credit Loan that is
a Eurodollar Loan;
"Eurodollar Term Loan" means a Term Loan that is a Eurodollar Loan;
"Event of Default" shall have the meaning given to said term in Section
14.01 hereof;
"Executive Officer" means the chief executive officer, chief operating
officer or chief financial officer of the Person in question;
"Existing Letters of Credit" means the letters of credit set forth on
Schedule 3 attached hereto;
"Extension of Credit" means any Loan or Money Market Loan advanced
hereunder, any Letter of Credit issued hereunder (and obligations to make
advances thereunder) and any Bankers' Acceptance created hereunder (and
obligations to make advances thereunder);
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions, with members of the Federal
Reserve System only, arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Agent);
"Fixed Charge Coverage Ratio" means, with respect to the twelve-month
period ending on the date such calculation is made, the ratio of (i) Operating
Income for such period to (ii) Fixed Charges for such period;
"Fixed Charges" means, for any period, the sum of (i) Interest Expense
for such period, plus (ii) Current Maturities as of the first day of such
period;
"Funded Debt" means, at any time, the sum, without duplication, of (i)
the aggregate principal balance of all outstanding Loans, Money Market Loans
and BA Outstandings at such time, plus (ii) the aggregate amount of Current
Maturities at such time, plus (iii) the aggregate principal balance of all
Long Term Debt at such time;
EX-32
"Funded Debt Coverage Ratio" means, at any time such calculation as is
made, the ratio of (i) Funded Debt at such time to (ii) EBITDA for the
twelve-month period ending on the date of such calculation;
"Generally Accepted Accounting Principles" means those principles of
accounting set forth in pronouncements of the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants, as such
principles are from time to time supplemented and amended;
"Guarantee Subsidiary" means each of the direct and indirect Subsidiaries
of Airgas which is a party to the Guaranty Agreement, including each direct or
indirect Subsidiary of Airgas which becomes a party to the Guaranty Agreement
pursuant to a Guaranty Joinder Agreement;
"Guaranty Agreement" means the Guaranty Agreement in the form of Exhibit
B attached hereto;
"Guaranty Joinder Agreement" means a Guaranty Joinder Agreement
substantially in the form of Exhibit C attached hereto;
"Holdings' Maximum Obligated Amount" means, as of any date of
determination thereof, the sum of (i) with respect to each Extension of Credit
(or portion thereof) which is used (or the proceeds of which are used) to make
a Valuable Transfer to Holdings, the outstanting amount of such Extension of
Credit (or such portion thereof) as of such date, plus (ii) with respect to
each Extension of Credit (or portion thereof) which is not used (or the
proceeds of which are not used) to make a Valuable Transfer to Holdings, the
lesser of (a) the outstanding amount of such Extension of Credit (or such
portion thereof) as of such date of determination or (b) the greater of (1)
95% of the Adjusted Net Worth of Holdings at the time of such Extension of
Credit or (2) 95% of the Adjusted Net Worth of Holdings as of such date;
"Interest Expense" means, for any period, consolidated interest expense
of Airgas and its Subsidiaries for such period, as determined in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis;
"Interest Payment Date" means, (i) as to any CD Loan having an Interest
Period of 30, 60 or 90 days, any Eurodollar Loan having an Interest Period of
1, 2 or 3 months or any Money Market Loan, the last day of the applicable
Interest Period, and (ii) as to any CD Loan having an Interest Period longer
than 90 days or any Eurodollar Loan having an Interest Period longer than 3
months, the last day of June, September, December and March in each year and
the last day of the applicable Interest Period and (iii) as to any Prime Loan,
the last day of June, September, December and March in each year. If any
Interest Payment Date falls on a day which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business Day
(unless, in case of a Eurodollar Loan, the same would fall in a succeeding
month, in which case such Interest Payment Date shall be deemed to be the
first preceding Business Day);
"Interest Period" means, (i) as to any CD Loan, a period of 30, 60, 90 or
180 days' duration or, unless unavailable pursuant to the terms of Section
8.01(c) hereof, of 270 or 360 days, as the Borrowers may elect, commencing on
the date such CD Loan shall have been made or immediately upon expiration of
the Interest Period of the preceding CD Loan; (ii) as to any Eurodollar Loan,
the period commencing on the date of such Eurodollar Loan and ending on the
numerically corresponding day (or if there is no corresponding day, the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter or, unless
EX-33
unavailable pursuant to the terms of Section 8.01(b) hereof, in the calendar
month that is 9 or 12 months thereafter, as the Borrowers may elect; or (iii)
as to any Money Market Loan, such period as a Bank shall offer and the
Borrowers may select, in any event not to be less than 1 nor more than 90
days; provided, however, that (A) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, with respect to Eurodollar Loans,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
(B) no Interest Period with respect to a Money Market Loan or to a Revolving
Credit Loan constituting a CD Loan or a Eurodollar Loan shall end later than
the Termination Date and no Interest Period with respect to a Term Loan or a
Letter of Credit Term Loan constituting a CD Loan or a Eurodollar Loan shall
end later than the Maturity Date; and (C) with respect to the Term Loans and
Letter of Credit Term Loans, no Interest Period may be selected for a CD Loan
or a Eurodollar Loan comprising such Term Loan or Letter of Credit Term Loan
or any portion thereof which expires later than the next date for payment of
an installment of principal unless either that portion of the Term Loan or
Letter of Credit Term Loan comprised of a Prime Loan is at least equal to such
installment or the last day of an Interest Period for a CD Loan or a
Eurodollar Loan occurs on or prior to such installment payment date and such
Loan or Loans are in an amount which, when added to the Prime Loan portion, is
at least equal to such installment at the due date thereof;
"Jackson" means Jackson Products, Inc., a former Delaware corporation and
Subsidiary of Airgas;
"LC Agent" means the Agent; provided, however, that with respect to each
Existing Letter of Credit, the term "LC Agent" means the Bank which is the
issuer of such Letter of Credit;
"LC Documents" means, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered thereunder, any
application therefor, and any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations;
"LC Outstandings" means, at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
all Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate LC Reimbursement Obligations at such time;
"LC Reimbursement Obligations" means, at any time with respect to any
Letter of Credit, any unpaid obligation of the Borrowers to reimburse the LC
Agent for amounts theretofore paid by the LC Agent pursuant to a drawing under
such Letter of Credit;
"Letter of Credit" means (i) any letter of credit issued by the LC Agent
for the account of a Borrower (or, as contemplated by Section 5.04 hereof, a
Guarantee Subsidiary) in accordance with the terms of Section 5.01 hereof and
(ii) any Existing Letter of Credit;
"Letter of Credit Term Loan" means a loan or loans made pursuant to
Section 4.01 hereof;
EX-34
"Letter of Credit Term Note" or "Letter of Credit Term Notes" means a
promissory note or promissory notes, as the case may be, of the Borrowers
executed and delivered as provided in Section 4.03 hereof;
"Leverage Ratio" means, at any time such calculation is made, the ratio
of (i) Funded Debt at such time to (ii) the Capital Base at such time;
"LIBOR Base Rate" means the rate at which deposits in the requested
aggregate amount and maturity are offered to NationsBank by prime banks in the
London Interbank Market as of 11:00 a.m. London time, on the second Business
Day prior to the applicable Interest Period, such rate being adjusted for the
cost of reserve requirements as prescribed by the Board of Governors of the
Federal Reserve System;
"Loan" or "Loans" means any Revolving Credit Loans, Term Loans or Letter
of Credit Term Loans;
"Loan Documents" means this Loan Agreement, the Notes, the Money Market
Notes and the Guaranty Agreement (together with any Guaranty Joinder
Agreement);
"Long Term Debt" means, at any time, all items which, in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis, would
be classified as long term debt (including Subordinated Debt, purchase money
indebtedness, indebtedness permitted under Section 13.01(a)(v) hereof, and
capitalized leases) on a consolidated balance sheet of Airgas and its
Subsidiaries;
"Majority Banks" means, at any time, (i) the holders of at least 67% of
the sum of (A) the aggregate unpaid principal amount of the Notes at such
time, plus (B) the LC Outstandings at such time, plus (C) the BA Outstandings
at such time, or (ii) if no amounts are outstanding under any of the Notes and
there are no LC Outstandings or BA Outstandings, Banks having at least 67% of
the aggregate amount of the Revolving Credit Loan Commitments at such time, or
(iii) if an Event of Default shall have occurred and be continuing, the
holders (in any event not to be less than five (5) of the Banks) of at least
67% of the sum of (A) the aggregate unpaid principal amount of the Notes at
such time, plus (B) the aggregate unpaid principal amount of the Money Market
Notes at such time, plus (C) the LC Outstandings at such time, plus (D) the BA
Outstandings at such time;
"Material Plan" shall have the meaning given to said term in Section
14.01(i) hereof;
"Maturity Date" means a date five (5) years after the Termination Date
(as the Termination Date may be extended from time to time in accordance with
the terms hereof);
"Money Market Loan" means a loan made pursuant to Section 7.01 hereof;
"Money Market Note" or "Money Market Notes" means a promissory note or
promissory notes, as the case may be, of the Borrowers, executed and delivered
as provided in Section 7.01(e) hereof;
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 7.01(b) hereof;
EX-35
"Money Market Rate" means that fixed rate of interest equal to the rate
quoted for such amounts and for such time periods specified by a Bank to the
Borrowers upon a request for a Money Market Quote pursuant to Section 7.01(b)
hereof;
"Multiemployer Plan" means an employee pension benefit plan within the
meaning of Section 3(37) of ERISA to which a member of the Controlled Group is
making, or accruing an obligation to make, contributions or has within the
preceding 5 plan years made contributions, including for these purposes any
Person which ceased to be a member of the Controlled Group during such 5 year
period;
"Net Income" means, for any period, net income after taxes of Airgas and
its Subsidiaries on a consolidated basis for such period, as determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Note" or "Notes" means any Revolving Credit Note or Notes, Letter of
Credit Term Note or Notes or Term Note or Notes, as the case may be, of the
Borrowers, executed and delivered under this Loan Agreement;
"Operating Income" means, for any period, the sum of (i) the amount by
which total operating revenues exceed total operating expenses for such period
as determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis and as reported in the related consolidated
financial statements for such period of Airgas and its Subsidiaries described
in Sections 12.01(a)(i) and (b) hereof, plus (ii) consolidated cash income of
Airgas and its Subsidiaries for such period from investments in partnerships,
joint venturers or similar investments permitted under Section 13.01(m)
hereof, plus (iii) consolidated depreciation and amortization expense of
Airgas and its Subsidiaries for such period, minus (iv) consolidated capital
expenditures of Airgas and its Subsidiaries for such period other than capital
expenditures related to (A) an acquisition permitted under Section
13.01(h)(iv) or (vi) hereof and (B) purchases of property and/or equipment at
the time of acquisition leased to any acquired company as permitted under
Section 13.01(h)(v) hereof, all as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"PBGC" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government or
agency or political subdivision thereof;
"Plan" shall have the meaning given to said term in Section 12.01(w)
hereof;
"Prime Letter of Credit Term Loan" means a Letter of Credit Term Loan
that is a Prime Loan;
"Prime Loan" means a Loan bearing interest based on the Prime Rate in
accordance with the provisions of Articles II, III, IV and VIII hereof;
"Prime Rate" means the rate of interest per annum as announced publicly
in Charlotte, North Carolina by NationsBank as its Prime Rate in effect from
time to time, which is not necessarily the best or lowest rate of interest
offered by NationsBank to its customers;
EX-36
"Prime Revolving Credit Loan" means a Revolving Credit Loan that is a
Prime Loan;
"Prime Term Loan" means a Term Loan that is a Prime Loan;
"Redemption Obligation" means (i) the contingent liability of Airgas or
any of its Subsidiaries with respect to cash redemption obligations relating
to Capital Stock issued by Airgas or any of its Subsidiaries to any officer,
director, shareholder or other principal of any Subsidiary created or acquired
after the Closing Date and (ii) the contingent liability described on Exhibit
D attached hereto;
"Reference Banks" means NationsBank, Continental and Fidelity;
"REIT" shall have the meaning given to said term in Section 13.01(d)(ii)
hereof;
"Reportable Event" shall have the meaning given to said term in Section
12.01(w) hereof;
"Revolving Credit Loan" means a loan made pursuant to Sections 2.01 and
2.02 hereof;
"Revolving Credit Loan Commitment", for each Bank, means the commitment
of such Bank to make Revolving Credit Loans in a maximum principal amount
equal to the amount set forth beside the name of such Bank on Exhibit A
hereto;
"Revolving Credit Note" or "Revolving Credit Notes" or "Revolving Notes"
shall mean a promissory note or promissory notes, as the case may be, of the
Borrowers, executed and delivered as provided in Section 2.03 hereof;
"Sale/Leaseback Transaction" shall have the meaning given to such term in
Section 13.01(e) hereof;
"Senior Subordinated Note Purchase Agreements" means a collective
reference to (i) the agreement, as amended, in the form attached hereto as
Schedule 1 whereby Airgas has issued $25,000,000.00 of its 11.375% senior
subordinated notes due June 1, 1997 and (ii) the agreement, as amended, in the
form attached hereto as Schedule 2 whereby Airgas has issued $30,000,000.00 of
its 11.375% senior subordinated notes due August 1, 1998;
"Subordinated Debt" means (i) the indebtedness of up to $55,000,000.00
incurred by Airgas pursuant to the terms of the Senior Subordinated Note
Purchase Agreements, the repayment of which is subordinated to the repayment
of the indebtedness of Airgas to the Banks hereunder on terms described in the
Senior Subordinated Note Purchase Agreements, and (ii) additional subordinated
indebtedness incurred by Airgas provided that (A) no Event of Default
specified in Article XIV hereof, nor any event which upon notice or lapse of
time or both, would constitute such an Event of Default, exists immediately
prior to or would exist immediately after such additional subordinated
indebtedness is incurred and (B) all of the terms and conditions of such
additional subordinated indebtedness (including the terms relating to the
subordination of such indebtedness to the indebtedness of Airgas hereunder)
are consented to by the Majority Banks prior to the time such indebtedness is
incurred; provided, however, the aggregate outstanding principal balance of
all indebtedness permitted to be incurred pursuant to subsections (i) and (ii)
of this definition shall not exceed $105,000,000.00 at any one time;
EX-37
"Subsidiary" or "Subsidiaries" means any Person of which more than fifty
percent (50%) of the equity interest in such Person at the time of computation
is owned, directly or indirectly, by a Credit Party or a Subsidiary of a
Credit Party;
"Term Loan" means a loan or loans made pursuant to Section 3.01 hereof;
"Term Note" or "Term Notes" means a promissory note or promissory notes,
as the case may be, of the Borrowers, executed and delivered as provided in
Section 3.02 hereof;
"Termination Date" shall mean August 31, 1996; provided that, on August
31, 1995 and on each August 31 thereafter, the Termination Date may be
extended for an additional one year period as requested in writing to the
Banks at least 30 days in advance by the Borrowers and agreed to in writing by
all of the Banks in their sole discretion;
"Total Assets" means, at any time, all items which would, in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis,
be classified as assets (other than intangible assets) on a consolidated
balance sheet of Airgas and its Subsidiaries;
"Unutilized Revolving Credit Loan Commitments" means, at any time, the
excess of (i) the aggregate Revolving Credit Loan Commitments at such time
over (ii) the sum of (A) the aggregate outstanding principal balance of the
Revolving Credit Loans at such time, plus (B) the LC Outstandings at such
time, plus (C) the BA Outstandings at such time plus (D) the aggregate
outstanding principal amount of the Money Market Loans at such time;
"U.S. currency" and "U.S." shall each mean freely transferable lawful
money of the United States;
"Valuable Transfer" means (i) all loans, advances or capital
contributions made to or for the benefit of, or letters of credit issued for
the account or benefit of, Holdings with any Extension of Credit (or with any
proceeds thereof), (ii) all debt securities or other obligations of Holdings
acquired from Holdings, retired by Holdings or collateralized by Holdings with
any Extension of Credit (or with any proceeds thereof), (iii) the fair market
value of all property acquired with any Extension of Credit (or with any
proceeds thereof) and transferred, absolutely and not as collateral, to
Holdings and (iv) all equity securities of Holdings acquired from Holdings
with any Extension of Credit (or with any proceeds thereof); and
"Voting Stock" means common stock of a corporation, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of the corporate directors (or Persons performing similar functions).
1.02 All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
EX-38
ARTICLE II
Revolving Loans
2.01 Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make Revolving Credit Loans to the Borrowers, or either of
them, at any time or from time to time on or after the date hereof and until
the Termination Date, in an aggregate principal amount at any time outstanding
not exceeding the amount of its then applicable Revolving Credit Loan
Commitment; provided that, at no time shall (i) the sum of (A) the aggregate
principal balance of all outstanding Revolving Credit Loans made by all of the
Banks, plus (B) the aggregate LC Outstandings, plus (C) the aggregate BA
Outstandings of all of the Banks, plus (D) the aggregate principal balance of
all outstanding Money Market Loans, exceed (ii) the aggregate Revolving Credit
Loan Commitments of all of the Banks. The Borrowers may borrow, repay and
reborrow hereunder on or after the date hereof and prior to the Termination
Date, subject to the terms, provisions and limitations set forth herein.
2.02 (a) The Revolving Credit Loans made by the Banks on any one date
shall be in a minimum aggregate principal amount of $1,500,000.00 or in an
integral multiple of $100,000.00 in excess thereof. Revolving Credit Loans
shall be made ratably from the Banks in accordance with their respective
Revolving Credit Loan Commitments; provided, however, that the failure of any
Bank to make its Revolving Credit Loan shall not in itself relieve any
other Bank of its obligation to lend hereunder. The initial Revolving Credit
Loan by each Bank shall be made against delivery to such Bank of an
appropriate Revolving Credit Note, payable to the order of such Bank, as
referred to in Section 2.03 hereof. In the event any Bank shall fail to make
a Revolving Credit Loan to the Borrowers in accordance with the terms hereof,
any other Bank may, but shall not be obligated to, make such Revolving Credit
Loan to the Borrowers.
(b) Each Revolving Credit Loan shall be either a CD Loan, a Eurodollar
Loan or a Prime Loan (or a combination thereof) as the Borrowers may request
subject to and in accordance with this Section. Subject to other provisions
of this Section and the provisions of Section 8.02 hereof, Revolving Credit
Loans of more than one type may be outstanding at the same time.
(c) Except for Revolving Credit Loans made pursuant to the terms of
Section 5.01 or Section 6.01 hereof, the Borrowers shall give the Agent prior
written, telefax or telephonic notice, no later than the Business Day of the
proposed borrowing in the case of a Prime Loan, no later than two Business
Days prior to the Business Day of the proposed borrowing in the case of a CD
Loan and no later than three Business Days prior to the Business Day of the
proposed borrowing in the case of a Eurodollar Loan, of each borrowing under
Section 2.01 hereof. In each case, such notice shall be irrevocable and shall
specify the aggregate amount of the proposed borrowing and the date thereof
(which shall be a Business Day). Such notice, to be effective, must be
received by the Agent not later than 10:00 a.m. (or 1:00 p.m. with respect to
a Eurodollar Loan), Charlotte, North Carolina time, on the Business Day
specified for a borrowing consisting of a Prime Loan, on the second Business
Day prior to the date specified for a borrowing consisting of a CD Loan and on
the third Business Day prior to the date specified for a borrowing consisting
of a Eurodollar Loan. Such notice shall specify whether the Revolving Credit
Loan then being requested is to be (or what portion or portions thereof are to
be) a Prime Loan, a CD Loan, or a Eurodollar Loan and, if such Loan or any
portion or portions thereof is to be a CD Loan or a Eurodollar Loan, the
Interest Period with respect thereto. If no election is specified in such
EX-39
notice, such Revolving Credit Loan (or the portion thereof as to which no
election is specified) shall be a Prime Loan. The Agent shall promptly on the
same day provide the Banks notice that it has received notice from the
Borrowers pursuant to this paragraph. On the borrowing date specified in such
notice, each Bank shall make its ratable share of the borrowing available to
the Borrowers at Account No. 001-641-844 maintained at the offices of
NationsBank, no later than 5:00 p.m., Charlotte, North Carolina time, in
Federal or other immediately available funds.
(d) Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrowers shall not in any notice of borrowing under this
Section 2.02 request any CD Revolving Credit Loan or any Eurodollar Revolving
Credit Loan which, if made, would result in an aggregate of more than nine
separate CD Revolving Credit Loans of any Bank or nine separate Eurodollar
Revolving Credit Loans of any Bank or nine separate CD Revolving Credit Loans
of any Bank, Eurodollar Revolving Credit Loans of any Bank and Bankers'
Acceptances being outstanding hereunder at any one time. For purposes of the
foregoing, (i) Loans made ratably by the Banks pursuant to a discrete
borrowing request shall be considered a single Loan, (ii) Loans of any single
type having different Interest Periods, regardless of whether they commence or
expire on the same date, shall be considered separate Loans and (iii) Bankers'
Acceptances created ratably by the Banks pursuant to a discrete bankers'
acceptance request shall be considered a single Bankers' Acceptance. The
Borrowers may continue any CD Revolving Credit Loan or Eurodollar Revolving
Credit Loan, or convert all or any part of any Prime Revolving Credit Loans,
CD Revolving Credit Loans or Eurodollar Revolving Credit Loans into Loans of
another type, in accordance with Section 8.02 hereof and subject to the
limitations set forth therein.
2.03 The Revolving Credit Loans by each Bank shall be evidenced by a
Revolving Credit Note duly executed on behalf of each of the Borrowers, dated
the date hereof, in substantially the form of Exhibit E attached hereto,
payable to the order of such Bank in a principal amount equal to the Revolving
Credit Loan Commitment of such Bank. Each Revolving Credit Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 2.04 hereof. The aggregate unpaid principal amount of the
Revolving Credit Loans of each Bank at any time shall be the principal amount
owing on the Revolving Credit Note of such Bank at such time. The principal
amount of each Revolving Credit Loan, as evidenced by a Revolving Credit Note,
shall be due and payable on the Termination Date. All accrued and unpaid
interest on the outstanding principal balance of each Revolving Credit Note
shall be payable on each Interest Payment Date; provided that, if any such day
is not a Business Day, such interest shall be payable on the next succeeding
Business Day (unless, in case of a Eurodollar Loan, the same would fall in a
succeeding month, in which case such principal shall be payable on the first
preceding Business Day). All payments under the Revolving Credit Notes shall
be made in accordance with Section 8.07 hereof.
2.04 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Revolving Credit Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 days) equal to
the Prime Rate. Interest shall be payable on each Prime Revolving Credit Loan
quarterly on each Interest Payment Date, commencing with the first of such
dates to occur after the date of such Prime Revolving Credit Loan, and on
the Termination Date or the date of conversion of such Prime Revolving Credit
Loan to a Loan of a different type.
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(b) Subject to the provisions of Section 8.01 hereof, each CD Revolving
Credit Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the CD
Base Rate plus the Applicable Margin. Interest shall be payable on each CD
Revolving Credit Loan on each applicable Interest Payment Date and at maturity
or the date of conversion of such CD Revolving Credit Loan to a Loan of a
different type. The Agent shall determine the applicable CD Base Rate for
each Interest Period at 10:00 A.M., or as soon as practicable thereafter, on
the date when such determination is to be made in respect of such Interest
Period and shall promptly and on the same day notify the Borrowers and the
Banks of the CD Base Rate so determined. Such determination shall be
conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Revolving Credit Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the LIBOR Base Rate plus the Applicable Margin. Interest shall be payable on
each Eurodollar Revolving Credit Loan on each applicable Interest Payment Date
and at maturity or the date of conversion of such Eurodollar Revolving Credit
Loan to a Loan of a different type. The Agent shall determine the applicable
LIBOR Base Rate for each Interest Period at 11:00 a.m., London time, or as
soon as practicable thereafter,on the date when such determination is to be
made in respect of such Interest Period and shall promptly and on the same day
notify the Borrowers and the Banks of the LIBOR Base Rate so determined. Such
determination shall be conclusive absent manifest error.
2.05 (a) The Borrowers jointly and severally agree to pay in immediately
available funds to the Agent (without offset or counterclaim), for the account
of the Banks, in consideration of the Revolving Credit Loan Commitments
hereunder, on the last day of each June, September, December and March,
commencing with the first such date after the date hereof, and on the date of
any reduction or termination of the Revolving Credit Loan Commitments of the
Banks hereunder, a commitment fee (hereinafter called for the purpose of this
Section 2.05(a) the "Commitment Fee") of (i) one-fourth of one percent (1/4%)
per annum (computed on the basis of the actual number of days elapsed in a
year of 365 days) on the average daily Unutilized Revolving Credit Loan
Commitments during the preceding period or quarter, and (ii) one-eighth of one
percent (1/8%) per annum (computed on the basis of the actual number of days
elapsed in a year of 365 days) on the average daily amount of Money Market
Loans outstanding pursuant to Article VII hereof during the preceding period
or quarter. The Commitment Fee shall commence to accrue as of the date
hereof, and shall cease to accrue, with respect to subsection (i) above, on
the earlier of the Termination Date or the termination of the Revolving Credit
Loan Commitments of the Banks hereunder, and, with respect to subsection (ii)
above, on the Termination Date.
(b) (i) The Borrowers may in full permanently terminate, or from time
to time in part permanently reduce, the Revolving Credit Loan Commitments, in
each case upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent. Reductions of the Revolving Credit Loan
Commitments pursuant to the terms of Section 5.01, Section 6.01 or Section
7.01 hereof shall not be considered permanent reductions of the Revolving
Credit Loan Commitments. Each partial reduction of the Revolving Credit Loan
Commitments shall be in an aggregate principal amount of $5,000,000.00 or in
an integral multiple of $1,000,000.00 in excess thereof. The Agent shall
promptly on the same day provide the Banks notice that it has received notice
from the Borrowers pursuant to this subparagraph.
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(ii) In the case of any termination or reduction of the Revolving
Credit Loan Commitments pursuant to subparagraph (i) above, immediately after
giving effect to such termination or reduction, (A) the sum of (1) the
aggregate principal balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (1) the aggregate LC Outstandings, plus (3) the
aggregate BA Outstandings of all of the Banks, plus (4) the aggregate
principal balance of all outstanding Money Market Loans, shall not exceed (B)
the aggregate Revolving Credit Loan Commitments of all of the Banks. Each
reduction in the aggregate Revolving Credit Loan Commitments pursuant to
subparagraph (i) above shall be made ratably among the Banks in accordance
with each Bank's Revolving Credit Loan Commitment.
ARTICLE III
Term Loans
3.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make a Term Loan to the Borrowers on the Termination Date
in an amount equal to the then outstanding principal balance of such Bank's
Revolving Credit Note, the proceeds of which will be used to repay the
outstanding principal balance under such Revolving Credit Note. Each Bank
shall make its Term Loan hereunder against delivery to such Bank of an
appropriate Term Note, payable to the order of such Bank, as referred to in
Section 3.02 hereof. Each Bank shall make its Term Loan by making the
principal amount of such Term Loan available to the Borrowers at the
Borrowers' Account No. 001-641-844 maintained at the offices of NationsBank,
no later than 5:00 p.m., Charlotte, North Carolina time, on the Termination
Date, in Federal or other immediately available funds.
(b) Each Term Loan shall be either a Prime Loan, a CD Loan or a
Eurodollar Loan (or a combination thereof) as the Borrowers may request
pursuant to this Section. Subject to the other provisions of this Section and
the provisions of Section 8.02 hereof, Term Loans of more than one type may be
outstanding at the same time.
(c) The Borrowers shall give the Agent prior irrevocable written,
telefax or telephonic notice, no later than the Business Day of the proposed
borrowing in the case of a Prime Loan, no later than two Business Days prior
to the Business Day of the proposed borrowing in the case of a CD Loan and no
later than three Business Days' prior to the Business Day of the proposed
borrowing in the case of a Eurodollar Loan (which notice, to be effective,
must be received by the Agent not later than 10:00 a.m. (or 1:00 p.m. with
respect to a Eurodollar Loan), Charlotte, North Carolina time, on the Business
Day prior to the Termination Date, in the case of a Prime Loan, on the second
Business Day prior to the Termination Date, in the case of a CD Loan, and on
the third Business Day prior to the Termination Date, in the case of a
Eurodollar Loan) specifying whether such Term Loans are to be (or what portion
or portions thereof are to be) Prime Loans, CD Loans or Eurodollar Loans, and
if such Loans or any portion or portions thereof are to be CD Loans or
Eurodollar Loans, the Interest Period with respect thereto. If no election is
specified in such notice, such Term Loans (or the portion thereof as to which
no election is specified) shall be Prime Loans. The Agent shall promptly on
the same day provide the Banks notice that it has received notice from the
Borrowers pursuant to this paragraph.
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(d) Notwithstanding any provision to the contrary in this Loan
Agreement, the Borrowers shall not in any notice of borrowing under this
Section 3.01 request any CD Term Loan or any Eurodollar Term Loan which, if
made, would result in an aggregate of more than nine separate CD Term Loans or
nine separate Eurodollar Term Loans or nine separate CD Term Loans and
Eurodollar Term Loans of any Bank being outstanding hereunder at any one time.
For purposes of the foregoing, (i) Loans made ratably by the Banks pursuant to
a discrete borrowing request shall be considered a single Loan and (ii) Loans
of any single type having different Interest Periods, regardless of whether
they commence or expire on the same date, shall be considered separate Loans.
The Borrowers may continue any CD Term Loans or Eurodollar Term Loans or
convert all or any part of any Prime Term Loans, CD Term Loans or Eurodollar
Term Loans into Term Loans of another type in accordance with Section 8.02
hereof and subject to the limitations set forth therein.
3.02 The Term Loan by each Bank shall be evidenced by a Term Note duly
executed on behalf of each of the Borrowers, dated as of the Termination Date,
in substantially the form of Exhibit F attached hereto, payable to the order
of such Bank in the outstanding principal amount of such Bank's Revolving
Credit Note as of the Termination Date. The principal amount of each Term
Note shall be payable in twenty (20) consecutive equal quarterly installments,
such installments being due on the last day of each June, September, December
and March beginning with the principal installment due on the first such date
to occur following the Termination Date. Except in the case of the final
installment, which shall be exact and in an amount equal to the outstanding
principal balance of such Term Note, all installment payments of principal
shall be rounded up to the next whole dollar. Each Term Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 3.03 hereof.
3.03 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Term Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 days) equal to the Prime
Rate plus one-half of one percent (1/2%). Interest shall be payable on each
Prime Term Loan quarterly on each Interest Payment Date, commencing with the
first of such dates after the date of such Prime Term Loan, and at maturity or
the date of conversion of such Prime Term Loan to a Loan of a different type.
(b) Subject to the provisions of Section 8.01 hereof, each CD Term Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the CD Base Rate plus
the Applicable Margin. Interest shall be payable on each CD Term Loan on each
applicable Interest Payment Date and at maturity or the date of conversion of
such CD Term Loan to a Loan of a different type. The Agent shall determine
the applicable CD Base Rate for each Interest Period at 10:00 A.M., or as soon
as practicable thereafter, on the date when such determination is to be made
in respect of such Interest Period and shall promptly and on the same day
notify the Borrowers and the Banks of the CD Base Rate so determined. Such
determination shall be conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Term Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the LIBOR
Base Rate plus the Applicable Margin. Interest shall be payable on each
Eurodollar Term Loan on each applicable Interest Payment Date and at maturity
or the date of conversion of such Eurodollar Term Loan to a Loan of a
different type. The Agent shall determine the applicable LIBOR Base Rate for
each Interest Period at 11:00 a.m., London time, or as soon as practicable
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thereafter, on the date when such determination is to be made in respect of
such Interest Period and shall promptly and on the same day notify the
Borrowers and the Banks of the LIBOR Base Rate so determined. Such
determination shall be conclusive absent manifest error.
ARTICLE IV
Letter of Credit Term Loans
4.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make a Letter of Credit Term Loan on the date specified in
Section 5.01(d) hereof on account of a drawing under a standby Letter of
Credit after the Termination Date but prior to the Maturity Date in an amount
equal to such Bank's ratable share of such drawing. Each Letter of Credit
Term Loan will be made in accordance with the terms of Section 5.01(d) hereof.
In the event any Bank shall fail to make a Letter of Credit Term Loan in
accordance with the terms hereof, any other Bank may, but shall not be
obligated to, make such Letter of Credit Term Loan.
(b) Each Letter of Credit Term Loan shall be a Prime Loan unless and
until later converted to a Loan of a different type pursuant to Section 8.02
hereof. Subject to the other provisions of this Section and the provisions of
Section 8.02 hereof, Letter of Credit Term Loans of more than one type may be
outstanding at the same time.
4.02 The principal amount of each Letter of Credit Term Loan shall be
payable in consecutive equal quarterly installments, such installments being
due on the last day of each June, September, December and March, beginning
with the principal installment due on the first such date to occur following
the making of such Letter of Credit Term Loan and continuing thereafter until
the Maturity Date. The amount of each such installment shall equal the amount
of the Letter of Credit Term Loan divided by the number of quarterly
installments. Except in the case of the final installment, which shall be
exact and in an amount equal to the outstanding principal balance of the
applicable Letter of Credit Term Loan, all installment payments of principal
shall be rounded up to the next whole dollar.
4.03 The Letter of Credit Term Loans by each Bank shall be evidenced by
a Letter of Credit Term Note duly executed on behalf of each of the Borrowers,
dated the Termination Date, in substantially the form of Exhibit G attached
hereto, payable to the order of such Bank in a face amount equal to such
Bank's ratable share of the aggregate undrawn amount of the then outstanding
Letters of Credit.
4.04 (a) Subject to the provisions of Section 8.01 hereof, each Prime
Letter of Credit Term Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed in a year of 365 days) equal
to the Prime Rate plus one-half of one percent (1/2%). Interest shall be
payable on each Prime Letter of Credit Term Loan quarterly on each Interest
Payment Date, commencing with the first of such dates after the date of making
of such Prime Letter of Credit Term Loan, and at maturity or the date of
conversion of such Prime Letter of Credit Term Loan to a Loan of a different
type.
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(b) Subject to the provisions of Section 8.01 hereof, each CD Letter of
Credit Term Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the CD Base Rate plus the Applicable Margin. Interest shall be payable on
each CD Letter of Credit Term Loan on each applicable Interest Payment Date
and at maturity or the date of conversion of such CD Letter of Credit Term
Loan to a Loan of a different type. The Agent shall determine the applicable
CD Base Rate for each Interest Period at 10:00 A.M., or as soon as practicable
thereafter, on the date when such determination is to be made in respect of
such Interest Period and shall promptly and on the same day notify the
Borrowers and the Banks of the CD Base Rate so determined. Such determination
shall be conclusive absent manifest error.
(c) Subject to the provisions of Section 8.01 hereof, each Eurodollar
Letter of Credit Term Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days)
equal to the LIBOR Base Rate plus the Applicable Margin. Interest shall be
payable on each Eurodollar Letter of Credit Term Loan on each applicable
Interest Payment Date and at maturity or the date of conversion of such
Eurodollar Letter of Credit Term Loan to a Loan of a different type. The
Agent shall determine the applicable LIBOR Base Rate for each Interest Period
at 11:00 a.m., London time, or as soon as practicable thereafter, on the date
when such determination is to be made in respect of such Interest Period and
shall promptly and on the same day notify the Borrowers and the Banks of the
LIBOR Base Rate so determined. Such determination shall be conclusive
absent manifest error.
ARTICLE V
Letters of Credit
5.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the LC Documents, if
any, executed in connection with the issuance of each Letter of Credit and any
other terms and conditions which the LC Agent may reasonably require, the LC
Agent will, at any time and from time to time from the Closing Date until the
day five (5) Business Days prior to the Termination Date, issue such Letters
of Credit as the Borrowers, or either of them, may request in a form
acceptable to the LC Agent; provided, however, that (i) at no time shall the
LC Outstandings exceed $50,000,000.00, (ii) at no time shall the LC
Outstandings with respect to all documentary Letters of Credit exceed
$10,000,000.00, (iii) no Letter of Credit shall be issued hereunder if, after
giving effect to the issuance of such Letter of Credit, (A) the sum of (1) the
aggregate principal balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (2) the aggregate LC Outstandings, plus (3) the
aggregate BA Outstandings of all of the Banks, plus (4) the aggregate
principal balance of all outstanding Money Market Loans, would exceed (B) the
aggregate Revolving Credit Loan Commitments of all of the Banks, (iv) no
Letter of Credit shall be issued hereunder if it would support any tax exempt
obligations of the applicable account party, (v) the stated expiry date of
each standby Letter of Credit shall be a date falling on or before the
Maturity Date and the stated expiry date of each documentary Letter of Credit
shall be a date falling on or before the Termination Date, (vi) the aggregate
undrawn amount of issued and outstanding standby Letters of Credit having an
expiration date later than the date one year from the date of issuance thereof
shall not at any time exceed $5,000,000.00 and (vii) the expiration date of
any documentary Letter of Credit shall be not more than 180 days from the date
of issuance thereof. Subject to the limitations set forth in the preceding
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sentence, the Borrowers shall be permitted to request the issuance of annually
renewable standby Letters of Credit. Each Letter of Credit shall comply with
the related LC Documents. The issuance and expiration dates of each Letter of
Credit shall be a Business Day.
(b) The request for the issuance of a Letter of Credit shall be
submitted in writing to the LC Agent not later than 10:00 a.m., Charlotte,
North Carolina time, three (3) Business Days prior to the requested date of
issuance and shall be accompanied by such documents as are specified therein
and in the related LC Documents. Upon issuance of a Letter of Credit, the LC
Agent shall promptly and on the same day notify the Banks of the amount and
terms thereof.
(c) (i) Upon the issuance of each Letter of Credit, each Bank shall
automatically acquire a participation in the liability of the LC Agent under
such Letter of Credit in an amount equal to such Bank's pro rata share (based
on such Bank's portion of the total Revolving Credit Loan Commitments) of such
liability and shall thereby absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated to pay to the
LC Agent and discharge when due in accordance with subsection (d) below, its
pro rata share of the LC Agent's liability under such Letter of Credit.
(ii) On the Closing Date, (A) each Bank shall automatically acquire
a participation in the liability of the applicable issuing Bank under each
Existing Letter of Credit in an amount equal to such Bank's pro rata share
(based on such Bank's portion of the total Revolving Credit Loan Commitments)
of such liability and shall thereby absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay to such issuing Bank and discharge when due in accordance with subsection
(d) below, its pro rata share of such issuing Bank's liability under such
Existing Letters of Credit and (B) each Existing Letter of Credit shall be
deemed for all purposes of this Loan Agreement and the other Loan Documents to
be a Letter of Credit.
(d) In the event of any drawing under any Letter of Credit, the LC Agent
will promptly and on the same day notify the Borrowers. Unless the Borrowers
shall immediately notify the LC Agent of their intent to otherwise reimburse
the LC Agent (i) any drawing under a Letter of Credit prior to the Termination
Date shall be considered a request by the Borrowers for a Revolving Credit
Loan in an amount equal to such drawing pursuant to the terms hereof and (ii)
any drawing under a standby Letter of Credit after the Termination Date shall
be considered a request by the Borrowers for a Letter of Credit Term Loan
pursuant to the terms hereof. Each Revolving Credit Loan or Letter of Credit
Term Loan made pursuant to the foregoing sentence shall be a Prime Loan
(unless and until later converted to a Loan of a different type pursuant to
the terms hereof) and shall be applied to satisfy the related LC Reimbursement
Obligation. The Borrowers shall reimburse the LC Agent on the date of drawing
under any Letter of Credit for the full amount of the related LC Reimbursement
Obligation (either with proceeds of a Revolving Credit Loan or a Letter of
Credit Term Loan, as applicable, as provided above, or otherwise) in
accordance with Section 8.07 hereof. If the Borrowers shall fail to reimburse
the LC Agent as provided hereinabove, the related LC Reimbursement Obligation
shall bear interest at a per annum rate equal to the Prime Rate plus three
percent (3%). The Borrowers' reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights
of set-off, counterclaim or defense to payment the Borrowers (or any other
applicable account party as permitted by Section 5.04 hereof) may claim or
have against the LC Agent, the Agent, the Banks, the beneficiary of the Letter
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of Credit drawn upon or any other Person, including without limitation any
defense based on any failure of the Borrowers (or any other applicable account
party as permitted by Section 5.04 hereof) to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit or
any related LC Documents. The LC Agent will promptly notify the other Banks
of the amount of any unpaid LC Reimbursement Obligation, and each Bank shall
promptly pay to the Agent for the account of the LC Agent the amount of such
Bank's pro rata share of such unpaid LC Reimbursement Obligation by means of a
Loan made pursuant to this Section 5.01(d) or otherwise. Such payment shall
be made on the day such notice is received by such Bank from the LC Agent if
such notice is received at or before 2:00 p.m., Charlotte, North Carolina
time, otherwise such payment shall be made at or before 5:00 p.m., Charlotte,
North Carolina time, on the Business Day next succeeding the day such notice
is received. Each Bank's obligation to make such payment to the LC Agent, and
the right of the LC Agent to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall
be made without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Bank to the LC Agent,
such Bank shall, automatically and without any further action on the part of
the LC Agent or such Bank, acquire a participation in an amount equal to such
payment (excluding the portion of such payment constituting interest owing to
the LC Agent) in the related LC Reimbursement Obligation, in the interest
thereon and in the related LC Documents, and shall have a claim against the
Borrowers with respect thereto. In allocating to the Banks interest payments
received from the Borrowers on the Revolving Credit Loans and Letter of Credit
Term Loans, the Agent is hereby directed to consider the date of
reimbursements to the Agent for the account of the LC Agent as described in
this Section 5.01(d).
(e) The Borrowers hereby agree, jointly and severally, to indemnify and
hold harmless the LC Agent, each other Bank, the Agent and each of their
respective officers, directors, affiliates, employees or agents (the
"Indemnitees") from and against any and all claims and damages, losses,
liabilities, costs and expenses which the Indemnitees may incur (or which may
be claimed against any Indemnitee) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any Letter
of Credit; provided that the Borrowers shall not be required to indemnify the
Indemnitees for any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, (i) caused by the willful misconduct or
gross negligence of any Indemnitee in determining whether a request presented
under any Letter of Credit complied with the terms of such Letter of Credit
or (ii) caused by the LC Agent's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms
and conditions of such Letter of Credit (unless such payment is prohibited by
any law, regulation, court order or decree). The provisions of this Section
5.01(e) shall remain operative and in full force and effect regardless of the
expiration of this Loan Agreement.
(f) (i) The Borrowers agree jointly and severally to pay (without offset
or counterclaim) to the Agent or, in the case of an Existing Letter of Credit,
to the applicable issuing Bank, for the account of the Banks, a per annum fee
equal to the Applicable Margin for Eurodollar Loans (as determined from time
to time as provided in the definition of "Applicable Margin" set forth in
Section 1.01 hereof) on the maximum amount then available to be drawn under
each standby Letter of Credit from the date of issuance of such Letter of
Credit until the expiration of such Letter of Credit. This standby Letter of
Credit fee shall be payable quarterly in advance beginning on the date of
issuance of such Letter of Credit and on the last day of each March, June,
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September and December in each year thereafter until the expiration of such
Letter of Credit.
(ii) The Borrowers agree jointly and severally to pay to the Agent
(without offset or counterclaim) for the account of the Banks (A) an issuance
fee equal to twenty-five (25) basis points on the face amount of each
documentary Letter of Credit and (B) a drawing fee equal to fifteen (15) basis
points on the amount of each drawing under any documentary Letter of Credit.
The issuance fee described in subclause (A) above shall be payable on the date
of issuance of each documentary Letter of Credit, and the drawing fee
described in subclause (B) above shall be payable on each date of drawing
under a documentary Letter of Credit.
(iii) In addition to the fees payable pursuant to clauses (i) and
(ii) above, the Borrowers hereby agree jointly and severally to pay to the
Agent, for the account of the LC Agent, (A) a negotiation fee equal to ten
(10) basis points on the amount of each drawing under a documentary Letter of
Credit and (B) the customary charges from time to time of the LC Agent with
respect to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, any Letters of Credit.
(g) Any fee paid in connection with a Letter of Credit (including an
Existing Letter of Credit) other than the fees and other amounts payable
pursuant to subsection (f)(iii) above, shall be shared by the LC Agent with
the Banks pro rata in accordance with Section 8.07 hereof; provided, however,
the Banks shall not be entitled to any such fee for an Existing Letter of
Credit which has been deemed to be earned during the period prior to June 19,
1987; provided further, any such fee shall be deemed to be earned evenly
throughout the period for which it is paid regardless of when it was paid.
5.02 In the event of the imposition hereafter of, or changes hereafter
in, the reserve or capital allocation requirements promulgated by the Board of
Governors of the Federal Reserve System of the United States or any public
body or governmental agency having jurisdiction over any Bank with respect to
the issuance of or the participation in letters of credit or the maintenance
of loan commitments, the Borrowers will pay to the Agent for the benefit of
such Bank such additional amount or amounts as will compensate such Bank for
the effect of such reserve or capital allocation requirements as determined by
such Bank on the basis of such reserve or capital allocation requirements
applicable to it, which determination shall be conclusive absent manifest
error. The provisions of this Section shall survive termination of this Loan
Agreement.
5.03 Each Bank agrees to provide the Agent with quarterly reports of all
outstanding Existing Letters of Credit issued by such Bank. Such reports
shall be delivered within 15 days of the end of each March, June, September
and December, commencing with the quarterly period ending September 30, 1993,
and shall specify the following with respect to each outstanding Existing
Letter of Credit issued by such Bank: (i) the letter of credit number for
such Letter of Credit, (ii) the beneficiary of such Letter of Credit, (iii)
the original face amount of such Letter of Credit, (iv) the then current
available amount of such Letter of Credit, (v) the amortization schedule for
such Letter of Credit, (vi) the Letter of Credit fee applicable to such Letter
of Credit and (vii) the total amount of the Letter of Credit fee accrued with
respect to such Letter of Credit during the preceding quarterly period. Each
Bank further agrees to provide the Agent with prompt notice of any change
(prior to the end of the then current quarterly period) affecting the most
recent report of such Bank to the Agent pursuant to this Section 5.03.
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5.04 Notwithstanding anything to the contrary set forth in this Loan
Agreement, including without limitation Section 5.01(a) hereof, a Letter of
Credit issued hereunder may contain a statement to the effect that such Letter
of Credit is issued for the account of any Guarantee Subsidiary, provided that
notwithstanding such statement, the Borrowers shall be the actual account
parties for all purposes of this Loan Agreement for such Letter of Credit and
such statement shall not affect the Borrowers' obligations hereunder with
respect to such Letter of Credit.
ARTICLE VI
Bankers' Acceptances
6.01 (a) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the BA Documents, if
any, executed in connection with the creation of each Bankers' Acceptance,
each Bank, severally and not jointly, agrees to create Bankers' Acceptances
for the account of the Borrowers, or either of them, at any time or from time
to time on or after the date hereof until the date thirty-five (35) Business
Days prior to the Termination Date; provided, however, that (i) at no time
shall the BA Outstandings with respect to all Bankers' Acceptances created by
any Bank exceed such Bank's Bankers' Acceptance Commitment, (ii) at no time
shall the BA Outstandings with respect to all Bankers' Acceptances created by
all of the Banks exceed $100,000,000.00, (iii) the Borrowers shall not be
entitled to request any Bankers' Acceptance which, if created would result in
an aggregate of more than nine separate CD Loans, Eurodollar Loans and
Bankers' Acceptances being outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing, (A) Loans made ratably by the
Banks pursuant to a discrete borrowing request shall be considered a single
Loan, (B) Loans of any single type having different Interest Periods,
regardless of whether they commence or expire on the same date, shall be
considered separate Loans and (C) Bankers' Acceptances created ratably by the
Banks pursuant to a discrete bankers' acceptance request shall be considered a
single Bankers' Acceptance), (iv) the Borrowers shall not be entitled to
request any Bankers' Acceptances if, after giving effect to the Bankers'
Acceptances to be created by all of the Banks pursuant to such request, (A)
the sum of (1) the aggregate principal balance of all outstanding Revolving
Credit Loans made by all of the Banks, plus (2) the aggregate LC Outstandings,
plus (3) the aggregate BA Outstandings of all of the Banks, plus (4) the
aggregate principal balance of all Money Market Loans, would exceed (B) the
aggregate Revolving Credit Loan Commitments of all of the Banks and (v) the
Borrowers shall not be entitled to request any Bankers' Acceptances if (A)
creation by any Bank of its related Bankers' Acceptance pursuant to such
request would cause such Bank to exceed the maximum amount of outstanding
bankers' acceptances permitted by applicable law or (B) in the reasonable
opinion of the Agent or the Majority Banks, general conditions in the public
market for rediscounting bankers' acceptances render it inadvisable to create
or discount bankers' acceptances.
(b) The Bankers' Acceptances created by the Banks in connection with
each bankers' acceptance transaction shall be in a minimum aggregate principal
amount of $10,000,000.00 or in an integral multiple of $1,000,000.00 in excess
thereof. Bankers' Acceptances shall be created ratably by the Banks in
accordance with their respective Bankers' Acceptance Commitments; provided,
however, that the failure of any Bank to create its Bankers' Acceptance shall
not in itself relieve any other Bank of its obligation to create a Bankers'
Acceptance hereunder. In the event any Bank shall fail to create a Bankers'
Acceptance in accordance with the terms hereof, any other Bank may, but shall
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not be obligated to, create such Bankers' Acceptance. Each Bankers'
Acceptance shall comply with the related BA Documents and shall be executed on
behalf of the applicable Borrower (or other applicable account party as
permitted by Section 6.01(h) hereof) and presented to the accepting Bank
pursuant to such procedures as are provided for in such BA Documents or
otherwise provided or required by such accepting Bank. The Borrowers shall
supply to each Bank on the Closing Date, and thereafter from time to time upon
the request of such Bank, a sufficient number of blank drafts conforming to
the requirements of the related BA Documents for such Bank and duly executed
on behalf of the Borrowers (or other applicable account party as permitted by
Section 6.01(h) hereof), to be held in safekeeping by such Bank and used as
provided herein and in such related BA Documents. The maturity of any
Bankers' Acceptance shall be the date 30, 60, 90 or 180 days after the
creation thereof, as the Borrowers may elect; provided that, no such maturity
shall extend beyond the date falling five (5) Business Days before the
Termination Date. The creation and maturity dates of each Bankers' Acceptance
shall be a Business Day.
(c) The Borrowers shall give the Agent prior written, telefax or
telephonic notice, no later than 10:00 a.m., Charlotte, North Carolina time,
one (1) Business Day prior to the requested date of creation of the requested
Bankers' Acceptances. In each case, such notice shall be irrevocable, shall
be in the form of Exhibit H attached hereto and shall specify (i) the
aggregate amount of Bankers' Acceptances requested, (ii) the date of creation
of such Bankers' Acceptances, (iii) the date of maturity of such Bankers'
Acceptances and (iv) the nature of the transaction to be financed with the
proceeds of such Bankers' Acceptances. The Agent shall promptly on the same
day provide the Banks with a telefax copy of any notice that it has received
from the Borrowers pursuant to this paragraph. On the date of creation for
Bankers' Acceptances specified in such notice, each Bank shall create a
Bankers' Acceptance having a face amount equal to its ratable share of the
aggregate Bankers' Acceptances requested by the Borrowers. Upon the creation
by each Bank of a Bankers' Acceptance in accordance with the foregoing
provisions of this subsection (c), such Bank shall discount such Bankers'
Acceptance by deducting from the face amount thereof a discount equal to the
BA Discount Rate then in effect applied against the face amount of such Bank's
Bankers' Acceptance for the term thereof, and such Bank shall make the net
amount available to the Borrowers for the account of the applicable Borrower
(or other applicable account party as permitted by Section 6.01(h) hereof) at
Account No. 001-641-844 maintained at the offices of NationsBank, no later
than 5:00 p.m., Charlotte, North Carolina time, in Federal or other
immediately available funds. Each Bank may retain or rediscount, at its
election, any Bankers' Acceptance created by such Bank, and the amount
received by such Bank upon payment thereof at maturity or upon rediscounting
shall be solely for the account of such Bank. In connection with each request
for Bankers' Acceptances pursuant to this Section 6.01, the Agent shall
determine the applicable BA Discount Rate at 11:00 a.m., Charlotte, North
Carolina time, on the date of creation of the related Bankers' Acceptances and
shall promptly notify the Borrowers and the Banks of the BA Discount Rate so
determined. Such determination shall be conclusive absent manifest error.
(d) Unless the Borrowers previously shall have notified the Agent of
their intent to otherwise reimburse the Banks for advances made by the Banks
upon maturity of any Bankers' Acceptances created hereunder, the Borrowers
shall be deemed to have requested a Revolving Credit Loan pursuant to the
terms hereof in order to satisfy the related BA Reimbursement Obligations on
the date of such maturity. Each Revolving Credit Loan made pursuant to the
foregoing sentence shall be a Prime Loan (unless and until later converted to
EX-50
a Loan of a different type pursuant to the terms hereof) and shall be applied
to satisfy such related BA Reimbursement Obligations. The Borrowers shall
reimburse the accepting Bank on the maturity date of any Bankers' Acceptances
created by such Bank hereunder for the full amount of the related BA
Reimbursement Obligation (either with proceeds of a Revolving Credit Loan as
provided above, or otherwise) in accordance with Section 8.07 hereof. If the
Borrowers shall fail to reimburse any accepting Bank as provided hereinabove,
the related BA Reimbursement Obligations shall bear interest at a per annum
rate equal to the Prime Rate plus three percent (3%). The Borrowers'
reimbursement obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of set-off, counterclaim or
defense to payment the Borrowers (or any other applicable account party as
permitted by Section 6.01(h) hereof) may claim or have against the accepting
Bank, the Agent, the other Banks or any other Person.
(e) The Borrowers agree that, in the event that any Bankers' Acceptance
created (or to be created) hereunder shall not, in the reasonable opinion of
the accepting Bank, meet all requirements for "eligible" bankers' acceptances
(as determined in accordance with paragraph 7 of Section 13 of the Federal
Reserve Act (12 U.S.C. 372) (or any successor statute) and/or any other law,
rule or regulation applicable to such Bank), the Borrowers shall, upon demand
by such Bank, pay to the Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for any increased costs resulting therefrom
(including without limitation costs resulting from any reserve requirement,
premium liability to the Federal Deposit Insurance Corporation, or a higher
discount rate). A detailed statement as to the amount of such increased
costs, prepared in good faith and submitted by the applicable accepting Bank
to the Borrowers, shall be conclusive and binding for all purposes, absent
manifest error in computation. The provisions of this Section 6.01(e) shall
remain operative and in full force and effect regardless of the expiration of
this Loan Agreement.
(f) The Borrowers shall maintain detailed records and accounts in which
full, true and correct entries will be made of all transactions financed with
proceeds of Bankers' Acceptances created hereunder.
(g) In the event that any signatory whose signature appears on any draft
accepted and discounted by Bank shall cease to be an authorized signatory on
or prior to the date on which the related Bankers' Acceptance is created by
such Bank, the obligations of the Borrowers hereunder and under the related BA
Documents and with respect to such Bankers' Acceptance shall nevertheless be
valid and enforceable as if such signatory has been an authorized signatory
on such date.
(h) Notwithstanding anything to the contrary set forth in this Loan
Agreement, including without limitation Section 6.01(a) hereof, the Borrowers
may request the creation of Bankers' Acceptances for the account of any
Guarantee Subsidiary, provided that the Borrowers shall be the actual account
parties for all purposes of this Loan Agreement for such Bankers' Acceptances
and the fact that any Bankers' Acceptance shall have been so created for the
account of a Guarantee Subsidiary shall not affect the Borrowers' obligations
hereunder with respect to such Bankers' Acceptance.
EX-51
ARTICLE VII
Money Market Loans
7.01 The Banks agree that the Borrowers, or either of them, may at any
time or from time to time on or after the date hereof and until the
Termination Date request the Banks to make Money Market Loans in an aggregate
principal amount at any time outstanding not exceeding the aggregate Revolving
Credit Loan Commitments of all the Banks; provided, however, that the
aggregate principal amount of the outstanding Money Market Loans of any Bank
(individually or taken together with the outstanding Revolving Credit Loans of
such Bank) may (but shall not be required to) exceed such Bank's Revolving
Credit Loan Commitment. The Banks may, but shall have no obligation to, make
Money Market Loans and the Borrowers may, but shall have no obligation to,
accept Money Market Quotes, pursuant to the following terms and conditions:
(a) The Borrowers, or either of them, may at any
time and from time to time on or after the Closing Date
and until the Termination Date make a written, telefax or
telephonic request to all of the Banks for a Money Market
Loan. To be effective, such request must be received by
each of the Banks by such time as determined by each such
Bank in accordance with such Bank's customary practices
(in any event not to be later than 12:00 noon Eastern
Standard (or Daylight) Time) on the date of the requested
borrowing and must specify (i) that a Money Market Loan
is requested, (ii) the amount of such Money Market Loan,
which amount shall be not less than $5,000,000.00 or an
integral multiple of $1,000,000.00 in excess thereof,
provided that the Borrowers may request and borrow up to
two (2) Money Market Loans at any one time outstanding,
each of which is in an amount of not less than
$2,000,000.00 or an integral multiple of $1,000,000.00 in
excess thereof, and (iii) the Interest Period for such
Money Market Loan.
(b) Upon receipt of a request by the Borrowers for
a Money Market Loan, each Bank may, in its sole
discretion, submit a Money Market Quote containing an
offer to make a Money Market Loan in an amount up to the
amount specified in the related request for Money Market
Loans. Such Money Market Quote shall be submitted to the
Borrowers by telephone notice by such time as determined
by such Bank in accordance with such Bank's customary
practices (in any event not to be later than 1:00 p.m.
Eastern Standard (or Daylight) Time), on the date of the
requested Money Market Loan. Money Market Quotes so made
shall be irrevocable. Each Money Market Quote shall
specify (i) the date of the proposed Money Market Loan,
(ii) the maximum and minimum principal amounts of the
Money Market Loan for which such offer is being made
(which may be for all or a part of (but not more than)
the amount requested by the Borrowers), (iii) the
applicable Money Market Rate, and (iv) the applicable
Interest Period.
EX-52
(c) The Borrowers may, before such time as
determined by the applicable Bank in accordance with such
Bank's customary practices (in any event until 2:00 p.m.
Eastern Standard (or Daylight) Time, on the date of the
requested Money Market Loan, accept any Money Market
Quote by giving the applicable Bank and the Agent
telephone notice (immediately confirmed in writing) of
(i) the Bank or Banks whose Money Market Quote(s) is/are
accepted, (ii) the principal amount of the Money Market
Quote(s) so accepted and (iii) the Interest Period of the
Money Market Quote(s) so accepted. The Borrowers may
accept any Money Market Quote in whole or in part;
provided, however, that (a) the principal amount of each
Money Market Loan may not exceed the maximum amount
offered in the Money Market Quote and may not be less
than the minimum amount offered in the Money Market
Quote, (b) the principal amount of each Money Market Loan
may not exceed the total amount requested pursuant to
subsection (a) above, (c) the Borrowers shall not accept
a Money Market Quote made at a particular Money Market
Rate if they have decided to reject a Money Market Quote
made at a lower Money Market Rate and (d) if the
Borrowers shall accept a Money Market Quote or Quotes
made at a particular Money Market Rate but the amount of
such Money Market Quote or Quotes shall cause the total
amount of Money Market Quotes to be accepted by the
Borrowers to exceed the total amount requested pursuant
to subsection (a) above, then the Borrowers shall accept
a portion of such Money Market Quote or Quotes in an
amount equal to the total amount requested pursuant to
subsection (a) above less the amount of other Money
Market Quotes accepted with respect to such request,
which acceptance, in the case of multiple Money Market
Quotes at the same Money Market Rate, shall be made pro
rata in accordance with each such Money Market Quote at
such Money Market Rate. Money Market Quotes so accepted
by the Borrowers shall be irrevocable.
(d) Upon acceptance by the Borrowers pursuant to
subsection (c) above of all or a portion of any Bank's
Money Market Quote, such Bank shall, before such time as
determined by such Bank in accordance with such Bank's
customary practices, on the date of the requested Money
Market Loan, make such Money Market Loan available to the
Agent in Federal or other immediately available funds.
Upon receipt of such funds, the Agent will promptly make
such funds available to the Borrowers at Account No. 001-
641-844 maintained at the offices of NationsBank;
provided, however, that if on the date of such Money
Market Loan the Borrowers are to repay all or any part of
an outstanding Revolving Credit Loan, then the Agent
shall apply such Money Market Loan first to such
repayment, and only an amount equal to the excess (if
any) of the amount borrowed over the amount being repaid
shall be made available to the Borrowers.
EX-53
(e) The Money Market Loans of each Bank shall be
evidenced by a single Money Market Note duly executed on
behalf of each of the Borrowers, dated the date hereof,
in substantially the form of Exhibit I attached hereto,
payable to the order of such Bank in the original
principal amount of up to $250,000,000.00 with interest
on the unpaid principal amount from time to time
outstanding of each Money Market Loan evidenced thereby
as prescribed in subparagraph (h). Each Bank is hereby
authorized to record the date and amount of each Money
Market Loan made by such Bank, the maturity date thereof,
the date and amount of each payment of principal thereof
and interest thereon and the interest rate with respect
thereto on the schedule annexed to and constituting a
part of its Money Market Note, and any such recordation
shall constitute prima facie evidence of the accuracy of
the information so recorded; provided, however, that the
failure to make any such recordation shall not affect the
obligations of the Borrowers hereunder or under such
Money Market Note. Each Money Market Loan shall bear
interest for the period from and including the date of
such Money Market Loan on the principal amount thereof
from time to time outstanding at the applicable Money
Market Rate determined as provided in subparagraph (h),
and such interest shall be payable as specified in
subparagraph (h).
(f) Within the limits and the conditions set forth
in this Section 7.01, the Borrowers may from time to time
borrow under this Section 7.01, repay pursuant to
subparagraph (g) below, and reborrow under this Section
7.01.
(g) The Borrowers shall repay to each Bank which
has made a Money Market Loan on the last day of the
Interest Period for such Money Market Loan the then
unpaid principal amount of such Money Market Loan. The
Borrowers may not prepay any Money Market Loan unless
such prepayment is accompanied by payment of amounts
specified in Section 8.06 hereof. Money Market Loans may
not be converted into Loans of a different type.
(h) The Borrowers shall pay interest to each Bank
on the unpaid principal amount of each Money Market Loan
from and including the date of such Money Market Loan to
but excluding the stated maturity date thereof, at the
applicable Money Market Rate for such Money Market Loan
(calculated on the basis of a year of 360 days), payable
on the last day of the Interest Period therefor.
(i) The Borrowers shall not request a Money Market
Loan if, assuming the maximum amount of Money Market
Loans so requested is borrowed as of the date of such
request, (i) the sum of (A) the aggregate principal
balance of all outstanding Revolving Credit Loans made by
all of the Banks, plus (B) the aggregate LC Outstandings,
plus (C) the aggregate BA Outstandings of all of the
Banks, plus (D) the aggregate principal balance of all
EX-54
outstanding Money Market Loans, would exceed (ii) the
aggregate Revolving Credit Loan Commitments of all of the
Banks.
(j) The Borrowers and the Banks hereby agree that,
notwithstanding any other provision to the contrary
contained in this Loan Agreement, at the written
direction of the Agent in its sole discretion to the
Borrowers and the Banks, all further requests by the
Borrowers for Money Market Loans shall be made by the
Borrowers to the Banks through the Agent in accordance
with such procedures as shall be prescribed by the Agent
and acceptable to the Borrowers and the Banks.
ARTICLE VIII
Additional Provisions Regarding
Revolving Credit Loans, Term Loans,
Letter of Credit Term Loans, Money Market Loans and
Bankers' Acceptances
8.01 (a) Upon the occurrence and during the continuance of any Event of
Default, the Borrowers, jointly and severally, shall on demand from time to
time pay interest on the principal balance of the Loans and the Money Market
Loans and, to the extent permitted by law, on overdue payments of interest and
any other amounts payable hereunder or under any of the other Loan Documents
up to the date of actual payment (after as well as before judgment):
(i) in the case of principal of or interest on a
Loan, at a rate determined by the Agent to be 3% per
annum plus the rate which would otherwise be payable
under Section 2.04, Section 3.03 or Section 4.04 hereof,
as the case may be;
(ii) in the case of principal of or interest on a
Money Market Loan, at a rate 3% per annum plus the rate
which would otherwise be payable under Section 7.01(h)
hereof with respect to such Money Market Loan; and
(iii) in the case of any other amount payable
hereunder or under any of the other Loan Documents (other
than amounts referred to in clause (i) or (ii) above), at
a rate 3% per annum plus the Prime Rate.
(b) In the event, and on each occasion, that on the day two Business
Days prior to the commencement of any Interest Period for a Eurodollar Loan,
any Bank shall have determined that dollar deposits in the amount of the
principal amount of and/or for the Interest Period for such Eurodollar Loan
are not generally available to such Bank in the London Interbank Market, or
that the rate at which such dollar deposits are being offered will not
adequately and fairly reflect the cost of such Bank of making or maintaining
the principal amount of such Eurodollar Loan during such Interest Period, or
reasonable means do not exist for ascertaining the LIBOR Base Rate for such
Eurodollar Loan for such Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Agent and each other Bank, and any
request by the Borrowers for a Eurodollar Loan or for conversion to or
maintenance of a Eurodollar Loan pursuant to Section 2.02, 3.01 or 8.02 hereof
EX-55
shall be deemed a request for a Prime Loan. After such notice shall have been
given and until the circumstances giving rise to such notice no longer exist,
each request for a Eurodollar Loan in such principal amount and/or for
such Interest Period shall be deemed to be a request for a Prime Loan. Each
determination by any of the Banks hereunder shall be conclusive absent
manifest error.
(c) In the event, and on each occasion, that on or before the day on
which the CD Base Rate for a CD Loan is to be determined, any Bank shall have
determined that such CD Base Rate for such CD Loan for the related Interest
Period cannot be ascertained for any reason, or if any Bank shall determine
that the CD Base Rate for such CD Loan will not adequately and fairly reflect
the cost to such Bank of making or maintaining the principal amount of such CD
Loan during the related Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Agent and each other Bank, and any
request by the Borrowers for a CD Loan or for conversion to or maintenance of
a CD Loan pursuant to Section 2.02, 3.01 or 8.02 hereof shall be deemed to be
a request for a Prime Loan. After such notice shall have been given and until
the circumstances giving rise to such notice no longer exist, each request for
a CD Loan in such principal amount and/or for such Interest Period shall be
deemed to be a request for a Prime Loan. Each determination by any of the
Banks hereunder shall be conclusive absent manifest error.
8.02 The Borrowers shall have the right, at any time, upon prior
written, telefax or telephonic notice to the Agent (which notice shall be
irrevocable and, to be effective, must be received by the Agent not later than
10:00 a.m., Charlotte, North Carolina time, in the case of Prime Loans, on the
Business Day of any conversion, in the case of CD Loans, on the second
Business Day preceding the date of any continuation or conversion, and in the
case of Eurodollar Loans, on the third Business Day preceding the date of any
continuation or conversion), (i) to continue any CD Loan or Eurodollar Loan or
portion thereof into a subsequent Interest Period and (ii) to convert any Loan
(but not a Money Market Loan) or portion thereof into a Loan (but not a Money
Market Loan) of a different type, subject to the following:
(a) no Event of Default shall have occurred and be
continuing at the time of such continuation or
conversion, and the representations and warranties set
forth in Article XI hereof shall be true and correct in
all material respects on and as of the date of such
continuation or conversion with the same effect as though
such representations and warranties had been made on and
as of such date, except to the extent that such
representations and warranties expressly relate to an
earlier date;
(b) if less than all Loans at the time outstanding
shall be continued or converted, such continuation or
conversion shall be made pro rata among the Banks in
accordance with the respective principal amounts of the
Loans held by the Banks immediately prior to such
continuation or conversion and the notice given to the
Banks by the Borrowers shall specify the aggregate amount
of Loans to be continued or converted;
EX-56
(c) in the case of a continuation or conversion of
less than all Loans, the aggregate principal amount of
Loans continued or converted shall not be less than
$1,500,000.00 or in an integral multiple of $100,000.00
in excess thereof;
(d) each conversion shall be effected by each Bank
by applying the proceeds of the new Prime Loan,
Eurodollar Loan or CD Loan, as the case may be, to the
Loan (or portion thereof) being converted, and accrued
interest on the Eurodollar Loan or CD Loan (or portion
thereof) being converted shall be paid by the Borrowers
at the time of conversion;
(e) if the new Loan made in respect of a conversion
shall be a Eurodollar or a CD Loan, the first Interest
Period with respect thereto shall commence on the date of
conversion;
(f) no Revolving Credit Loan may be converted to a
Eurodollar Loan or a CD Loan less than one (1) month or
thirty (30) days, respectively, before the Termination
Date and no Term Loan or Letter of Credit Term Loan may
be converted to a Eurodollar Loan or a CD Loan less than
one (1) month or thirty (30) days, respectively, before
the Maturity Date;
(g) any portion of a Eurodollar Loan or a CD Loan
required to be repaid on any installment repayment date
of a Term Loan or a Letter of Credit Term Loan which
installment repayment date occurs less than one (1) month
or thirty (30) days, respectively, after the end of the
then current Interest Period applicable to such
Eurodollar Loan or CD Loan shall be automatically
converted after the end of such Interest Period to a
Prime Loan;
(h) no Interest Period shall be selected by the
Borrowers for a Loan converted to or continued as a
Eurodollar Loan or a CD Loan if such Interest Period is
not available to the Borrowers pursuant to the terms of
the definition of "Interest Period" set forth in Section
1.01 and/or Section 8.01(b) or (c) hereof, as the case
may be;
(i) a Eurodollar Loan or a CD Loan may be converted
to another type of Loan only on the last day of an
Interest Period;
(j) each request for a Eurodollar Loan or a CD Loan
or a continuation thereof which shall fail to state an
applicable Interest Period shall be deemed to be a
request for an Interest Period of a thirty (30) day
duration with respect to a CD Loan and a one (1) month
duration with respect to a Eurodollar Loan;
EX-57
(k) Money Market Loans may not be converted into
Loans of any type and Loans may not be converted into
Money Market Loans; and
(l) no more than nine separate CD Loans or nine
separate Eurodollar Loans or nine separate CD Loans,
Eurodollar Loans and Bankers' Acceptances shall be
outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing, (i) Loans
made ratably by the Banks pursuant to a discrete
borrowing request shall be considered a single Loan, (ii)
Loans of any single type having different Interest
Periods, regardless of whether they commence or expire on
the same date, shall be considered separate Loans and
(iii) Bankers' Acceptances created ratably by the Banks
pursuant to a discrete bankers' acceptance request shall
be considered a single Bankers' Acceptance).
In the event that the Borrowers shall not give notice to continue any
Eurodollar Loan or CD Loan into a subsequent Interest Period or convert any
such Loan into a Loan of the other type, such Loan (unless repaid) shall
automatically become a Prime Loan at the expiration of the then current
Interest Period.
8.03 (a) The Borrowers shall have the right at any time and from time to
time to prepay any Prime Loan, in whole or in part, without premium or
penalty, upon prior written, telefax or telephonic notice to the Agent no
later than 10:00 a.m., Charlotte, North Carolina time, on the Business Day of
the proposed prepayment; provided, however, that each such partial prepayment
shall be in the aggregate principal amount of at least $1,500,000.00 (or in an
integral multiple of $100,000.00 in excess thereof) or the balance of such
Loan, if less.
(b) The Borrowers shall have the right to prepay any Eurodollar Loan, in
whole or in part, upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent; provided, however, that (i) each such partial
prepayment shall be in the aggregate principal amount of at least
$1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and
(ii) no such prepayment made before the last day of the Interest Period in
effect for such Loan shall be permitted unless accompanied by payment of
amounts specified in Section 8.06 hereof.
(c) The Borrowers shall have the right to prepay any CD Loan, in whole
or in part upon at least three Business Days' prior written, telefax or
telephonic notice to the Agent; provided, however, that (i) each such partial
prepayment shall be in the aggregate principal amount of at least
$1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and
(ii) no such prepayment made before the last day of the Interest Period in
effect for such Loan shall be permitted unless accompanied by payment of
amounts specified in Section 8.06 hereof.
(d) The Borrowers may not prepay any Bankers' Acceptance or Money Market
Loan unless such prepayment is accompanied by payment of amounts specified in
Section 8.06 hereof.
EX-58
(e) Each notice of prepayment shall specify the prepayment date and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Loan by the amount stated therein. All prepayments
under this Section shall be shared pro rata by the Banks (except in the case
of prepayment of a Money Market Loan) and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment.
Amounts prepaid under the Revolving Credit Notes pursuant to this Section
prior to the Termination Date shall be available to be reborrowed from the
Banks under this Loan Agreement in accordance with the terms hereof. Amounts
of Term Loans prepaid may not be reborrowed. All partial prepayments of Term
Loans shall be applied to installments of principal in the inverse order of
maturity. All partial prepayments of Letter of Credit Term Loans shall be
applied to installments of principal thereof in the inverse order of maturity.
8.04 (a) The cost to any Bank of making or maintaining any Eurodollar
Loans or CD Loans, of issuing or maintaining, or participating in, any Letters
of Credit, of creating or maintaining any Bankers' Acceptances or of
maintaining its Revolving Credit Loan Commitment may fluctuate as a result of
imposition hereafter of, or changes hereafter in, the reserve requirements
promulgated by the Board of Governors of the Federal Reserve System of the
United States. Accordingly, the Borrowers shall pay to each Bank such
additional amount or amounts as will compensate it for the effect of such
reserve requirements applicable to it, which determination shall be conclusive
absent manifest error. For purposes hereof, the aforesaid reserve
requirements shall include any reserve on Eurocurrency Liabilities as defined
by Regulation D of said Board at the ratios provided in such Regulation D from
time to time. It is hereby agreed that Eurodollar Loans made hereunder
shall be deemed to constitute Eurocurrency Liabilities (as defined in such
Regulation D). Such Bank shall promptly refund any amounts received by it
pursuant to this Section 8.04(a) that were erroneously billed to the Borrowers
together with interest thereon at the Federal Funds Rate. The provisions of
this subsection shall survive termination of this Loan Agreement.
(b) In the event that after the date hereof any change in applicable law
or regulations or in the interpretation or administration thereof (including,
without limitation, any request, guideline or policy not having the force of
law) by any authority charged with the administration or interpretation
thereof shall occur which shall:
(i) subject any Bank to any tax with respect to any
Eurodollar Loan, CD Loan, Money Market Loan, Letter of
Credit (including participations therein) or Bankers'
Acceptance (other than any tax on the overall net income
of such Bank imposed by the United States of America or
by the jurisdiction in which such Bank has its principal
office or political subdivision or taxing authority
therein); or
(ii) change the basis of taxation of any payment to
any Bank of principal of or interest on any Eurodollar
Loan, CD Loan, Money Market Loan, LC Reimbursement
Obligation or BA Reimbursement Obligation or fees and
other amounts payable hereunder, or any combination of
the foregoing; or
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(iii) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held
by, deposits with or for the account of or loans or
commitments by an office of such Bank as it relates to
Eurodollar Loans, CD Loans, Money Market Loans, Letters
of Credit (including participations therein), Bankers'
Acceptances or the Revolving Credit Loan Commitment of
such Bank; or
(iv) impose upon such Bank any other condition with
respect to the Eurodollar Loans, CD Loans, Money Market
Loans, Letters of Credit (including participations
therein) or Bankers' Acceptances, or upon such Bank any
other condition with respect to this Loan Agreement as it
relates to Eurodollar Loans, CD Loans, Money Market
Loans, Letters of Credit (including participations
therein), Bankers' Acceptances or the Revolving Credit
Loan Commitment of such Bank;
and the result of any of the foregoing shall be to increase the cost to such
Bank of making or maintaining any Eurodollar Loan, CD Loan or Money Market
Loan, of issuing or maintaining, or participating in, any Letter of Credit, of
creating or maintaining any Bankers' Acceptance hereunder or of maintaining
its Revolving Credit Loan Commitment or to reduce the amount of any payment
(whether of principal, interest or otherwise) received or receivable by such
Bank, or to require such Bank to make any payment in connection with any
Eurodollar Loan, CD Loan, Money Market Loan, Letter of Credit (or
participation therein) or Bankers' Acceptance, in each case by or in an amount
which such Bank in its sole reasonable judgment shall deem material, then and
in each such case the Borrowers agree to pay to such Bank, as provided in
paragraph (c) below (but without duplication of the payments required under
paragraph (a) above), such amounts as shall be necessary to compensate such
Bank for such cost, reduction or payment; provided, however, that if any Bank
shall request compensation under this Section 8.04(b) with respect to any
Eurodollar Loan or CD Loan, the Borrowers may, at their option and upon
written notice to the Banks, elect to convert such Loan of such Bank into a
Prime Loan upon the payment by the Borrowers of the increased costs described
above incurred prior to such conversion and any amount owing in respect of
Section 8.06 hereof, it being understood that (A) for purposes of Sections
8.02 and 8.03 hereof, such Prime Loan, until the expiration of the Interest
Period of the Eurodollar Loan or CD Loan so converted into a Prime Loan, shall
be subject to prepayment or conversion only at such times and on such
conditions as the Loan from which it was converted and (B) upon such increased
costs being eliminated, or reduced by an amount deemed sufficient by the
Borrowers, such Prime Loan may be reconverted into a Eurodollar Loan or CD
Loan, as the case may be, having an Interest Period expiring on the same date
as the Eurodollar Loan or CD Loan previously converted into such Prime Loan;
provided further, however, that if the result of any the foregoing shall be to
decrease the cost to any Bank of making or maintaining any Eurodollar Loan, CD
Loan or Money Market Loan, of issuing or maintaining or participating in any
Letter of Credit or of creating or maintaining any Bankers' Acceptance
hereunder by a material amount, then such Bank will credit to the Borrowers an
amount equal to such decreased costs. Promptly after actual notice to any
Bank that a change referred to in this paragraph has occurred, such Bank will
give notice of such occurrence to the Borrowers and the Agent. Each Bank
agrees that it will promptly refund any amounts received by it pursuant to
this Section 8.04(b) that were erroneously billed to the Borrowers together
with interest thereon at the Federal Funds Rate. The provisions of this
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subsection shall survive termination of this Loan Agreement.
(c) Each Bank shall promptly deliver to the Borrowers from time to time
one or more certificates setting forth the amounts due to such Bank under
paragraph (a) or (b) above, the reserve requirements or changes as a result of
which such amounts are due and the manner of computing such amounts. Each
such certificate shall be conclusive in the absence of manifest error. The
Borrowers shall pay to each Bank the amounts shown as due on any such
certificate within 10 days after their receipt of the same. No failure on the
part of any Bank to demand compensation under paragraph (a) or (b) above on
any one occasion shall constitute a waiver of its right to demand such
compensation on any other occasion with respect to any other event. The
protection of this Section shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of any law,
regulation or other condition which shall give rise to any demand by such Bank
for compensation hereunder; provided, however, if such law, regulation or
other condition giving rise to such demand is determined to be invalid or
inapplicable, the Bank will promptly refund any amount erroneously billed to
the Borrowers together with interest thereon at the Federal Funds Rate.
8.05 (a) Notwithstanding anything to the contrary contained elsewhere
in this Loan Agreement, if any change after the date hereof in any law or
regulation or in the interpretation thereof by any governmental authority
charged with the administration thereof shall make it unlawful for a Bank to
make or maintain a Eurodollar Loan or to effect to its obligations as
contemplated hereby with respect to a Eurodollar Loan, then, by written notice
to the Borrowers, such Bank may:
(i) declare that Eurodollar Loans will not
thereafter be made by such Bank hereunder, whereupon the
Borrowers shall be prohibited from requesting Eurodollar
Loans from such Bank hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
made by it be converted to Prime Loans, whereupon all of
such Eurodollar Loans shall be automatically converted to
Prime Loans as of the effective date of such notice as
provided in paragraph (b) below (notwithstanding the
provisions of Section 8.07 hereof but subject to the
provisions of Section 8.06 hereof).
(b) For purposes of this Section 8.05, a notice to the Borrowers by any
Bank pursuant to paragraph (a) above shall be effective with respect to
outstanding Eurodollar Loans, if lawful, on the last day of the then current
Interest Period; in all other cases, such notice shall be effective on the
date of receipt by the Borrowers.
8.06 The Borrowers shall reimburse each Bank on demand for any actual
out-of-pocket loss incurred by it in the reemployment of the funds released by
any prepayment or conversion of any Eurodollar Loan, CD Loan or Money Market
Loan required or permitted by any other provision of this Loan Agreement if
such Loan or Money Market Loan is prepaid or converted other than on the last
day of any Interest Period for such Loan or Money Market Loan or upon any
failure by the Borrowers to borrow or convert or continue any Loan or Money
Market Loan or cause creation of Bankers' Acceptance after giving notice
thereof. If any prepayment hereunder makes it necessary to apply any
installment payment on a Term Note or Letter of Credit Term Note to a
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Eurodollar Loan or CD Loan with an Interest Period extending beyond the date
of such installment payment, the Borrowers shall reimburse each Bank upon
demand for any actual out-of-pocket loss incurred or to be incurred by such
Bank (determined in accordance with the immediately preceding sentence) in the
reemployment of funds realized on such installment payment and applied to such
Eurodollar Loan or CD Loan, as the case may be. Determinations by any Bank
under this Section 8.06 shall be conclusive absent manifest error. The
provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of this Loan Agreement.
8.07 Except as required in connection with the payment of interest on
Revolving Credit Loans and Letter of Credit Term Loans made in connection with
drawings under Letters of Credit as described in Section 5.01(d) hereof, all
payments and prepayments of principal, interest and fees (other than the
agent's fee payable to the Agent and other than the fees and other amounts
payable to the LC Agent pursuant to Section 5.01(f)(iii) hereof) in respect of
the Loans, the Letters of Credit and the Bankers' Acceptances shall be made
pro rata among the Banks in accordance with the then outstanding principal
amount of the Notes (or in accordance with the Revolving Credit Loan
Commitments if there are no amounts then outstanding under the Notes). Except
as otherwise expressly provided in Article VII hereof, all payments by the
Borrowers hereunder (other than payments in respect of Money Market Loans)
and under the Notes shall be made to the Agent at its offices at Charlotte,
North Carolina, for the account of each Bank in dollars in Federal or other
immediately available funds by 11:00 a.m. Charlotte, North Carolina time, on
the date on which such payment shall be due. All payments received by the
Agent for the account of a Bank shall be promptly on the same day remitted by
the Agent to such Bank. Upon receipt by a Bank of more than its pro rata
share of any such principal or interest payment (after taking into account any
adjustment necessary to compensate the LC Agent for the situation referred to
in the first sentence of this Section 8.07), whether voluntary or involuntary,
or of any proceeds of collateral securing the Loans, it is hereby agreed among
the Banks and the Borrowers that the Bank receiving such excess payment or
proceeds (the "Receiving Bank") shall be obligated to pay to the other Banks
for application to such Banks' Notes and/or BA Reimbursement Obligations, an
amount necessary to reduce the outstanding principal and interest balances on
such Banks' Notes and/or BA Reimbursement Obligations to the balances that
would be outstanding on such Banks' Notes and/or BA Reimbursement Obligations
if the Receiving Bank had not received more than its pro rata share of
such payment; provided, however, that in the event any amount paid by any
Receiving Bank to any other Bank pursuant to the immediately preceding
sentence is rescinded or must otherwise be returned by the Receiving Bank,
each other Bank shall, upon request of the Receiving Bank, repay to the
Receiving Bank the amount so paid by the Receiving Bank to such Bank, with
interest for the period commencing on date such payment is returned by the
Receiving Bank until the date the Receiving Bank receives such repayment at
the Federal Funds Rate. Interest in respect of any Loan or Money Market Loan
hereunder shall accrue from and including the date of such Loan or Money
Market Loan to but excluding the date on which such Loan or Money Market Loan
is paid in full. All payments of principal and interest under the Money
Market Notes shall be in accordance with the terms of Article VII hereof.
Notwithstanding anything to the contrary contained in this Section 8.07 or
elsewhere in this Loan Agreement or any other of the Loan Documents, each Bank
agrees with respect to all payments, whether voluntary or involuntary, on
account of any Money Market Loan of such Bank received by such Bank during any
period following the occurrence of an event or condition which is, or upon
lapse of a cure period specified in this Loan Agreement would constitute, an
Event of Default and until such event or condition shall have been cured (as
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determined by the Agent), that such payments shall be shared pro rata among
the Banks in accordance with the then outstanding principal amounts of the
Notes and the Money Market Notes and each Bank's pro rata share of the LC
Outstandings and BA Outstandings at such time. The portion of any such
payment referred to in the preceding sentence required pursuant to such
preceding sentence to be allocated to the aggregate undrawn amount of issued
and outstanding Letters of Credit and/or to the aggregate unadvanced amount of
outstanding Bankers' Acceptances shall be paid to the Agent and, subject to
the immediately succeeding sentence, held by the Agent as cash collateral in
an interest bearing account for the benefit of the Banks until such time, if
ever, as the event or condition referred to above shall have been cured (as
determined by the Agent), at which time such proceeds shall be distributed by
the Agent to the Banks on a pro rata basis based on the then outstanding
principal amounts of the Notes and the Money Market Notes. If, at any time
that the Agent is holding any such proceeds on account of issued and
outstanding Letters of Credit and/or outstanding Bankers' Acceptances, any
amounts are drawn under any such Letter of Credit or any amounts are advanced
under any such Bankers' Acceptances, then the Agent shall distribute the
proceeds so held by the Agent to the extent of such drawing to the Banks based
on the pro rata shares of the Banks in the related LC Reimbursement Obligation
or BA Reimbursement Obligations, as the case may be. To the extent that
aggregate proceeds held by the Agent on account of issued and outstanding
Letters of Credit and/or outstanding Bankers' Acceptances at any time exceed
the aggregate undrawn amount of Letters of Credit and the unadvanced amount of
Bankers' Acceptances at such time, the Agent shall distribute the proceeds so
held by the Agent to the extent of such excess to the Banks on a pro rata
basis based on the then outstanding principal amounts of the Notes and the
Money Market Notes. All payments and prepayments of principal, interest and
fees in respect of the Loans, the Money Market Loans, the Letters of Credit
and the Bankers' Acceptances shall be without deduction for on account of
any present or future taxes, duties or other charges levied or imposed by the
nation of Canada or any political subdivision or taxing authority thereof.
8.08 In the event that any Bank shall have determined that the adoption
hereafter of or any change hereafter in any applicable law, rule, regulation
or guideline regarding capital adequacy, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
by any court, or compliance by such Bank (or any lending office of such Bank)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's capital or on the capital of such Bank's holding company as a
consequence of its obligations hereunder to a level below that which such Bank
or such Bank's holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies or
the policies of such Bank's holding company, as the case may be, with respect
to capital adequacy) by an amount deemed by such Bank to be material, then
from time to time the Borrowers shall pay to such Bank such additional amount
or amounts as will compensate such Bank or such Bank's holding company for any
such reduction suffered. Within a reasonable time after making a request for
such additional amount hereunder, such Bank will furnish to the Borrowers a
statement certifying the amount of such reduction and describing the event
giving rise to such reduction, which determination shall be conclusive absent
manifest error. Failure on the part of such Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not
constitute a waiver of such Bank's rights to demand compensation for any
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increased costs or reduction in amounts received or receivable or reduction in
return on capital in such period or in any other period. The protection of
this Section 8.08 shall be available to the Bank regardless of any possible
conflict or invalidity or inapplicability of the law, regulation or condition
which shall have been impaired. The provisions of this Section shall remain
operative and in full force and effect regardless of the expiration of this
Loan Agreement.
8.09 Notwithstanding anything to the contrary set forth in this Loan
Agreement, the Notes, the Money Market Notes or any other of the Loan
Documents, if at any time the credit facilities contemplated hereby shall be
classified (i) by the Agent or the Majority Banks in its or their reasonable
discretion based on criteria established by any government agency involved in
the regulation or oversight of the banking industry or (ii) by any
governmental authority, central bank or comparable agency charged with the
administration thereof (including, without limitation, any retroactive
classification based on financial information subsequently made available to
the Agent and the Banks or any such governmental authority, central bank or
comparable agency) as a "highly leveraged transaction" or any term substituted
therefor (a "HLT Classification"), then, unless and until such HLT
Classification shall have been terminated by the Agent or the Majority Banks
or such other entity upon written notice from the Agent to the Borrowers and
the Banks thereof, (A) commencing with the first day of the fiscal quarter
immediately succeeding the fiscal quarter with respect to which the
determination of such HLT Classification first becomes applicable, (1) the
Applicable Margin for all Loans and the applicable interest rates under the
Money Market Notes (including without limitation the Applicable Margin
for Loans then outstanding and the interest rates on Money Market Loans then
outstanding) shall be increased by one-half of one percent (1/2%), (2) the
standby Letter of Credit fee described in Section 5.01(f)(i) hereof shall be
increased to one and one-half of one percent (1 1/2%) and the documentary
Letter of Credit fee described in Section 5.01(f)(ii)(B) hereof shall be
increased to twenty-five (25) basis points and (3) the applicable BA
Commission shall be increased by one-half of one percent (1/2%) and (B)
commencing with the first day of the third fiscal quarter immediately
succeeding the fiscal quarter with respect to which the determination of such
HLT Classification first becomes applicable, the Applicable Margin for all
Loans, the applicable interest rates under the Money Market Notes (including
without limitation the Applicable Margin for Loans then outstanding and the
interest rates on Money Market Loans then outstanding), the applicable BA
Commission and the standby Letter of Credit fee described in Section
5.01(f)(i) hereof shall be increased by the amount set forth in clause (A)
above plus one-fourth of one percent (1/4%). Each Bank shall credit against
the additional interest payable with respect to its Loans and Money Market
Loans pursuant to the terms of the preceding sentence any amounts previously
paid to such Bank by the Borrowers pursuant to Section 8.08 hereof with
respect to the related HLT Classification. The Agent shall promptly notify
the Borrowers and the Banks of any HLT Classification.
8.10 Notwithstanding any other provision to the contrary contained in
this Loan Agreement, the Notes or the Money Market Notes, the liability of
Holdings with respect to the Borrowers' Obligations shall not exceed Holdings'
Maximum Obligated Amount as determined at the earlier of the date of the
commencement of a case under the U.S. Bankruptcy Code in which Holdings is a
debtor or the date enforcement is sought against Holdings under Section 14.01
hereof with respect to the Borrowers' Obligations.
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ARTICLE IX
Conditions Precedent as of Closing Date
9.01 The obligations as of the Closing Date of the Banks to make any
Loans or Money Market Loans or to create any Bankers' Acceptances and of the
LC Agent to issue Letters of Credit, are subject to the conditions precedent
that the Agent shall have received on or before such day the following, in
form and substance satisfactory to the Agent:
(a) fully executed copies of this Loan Agreement
(including exhibits), the Notes and the Money Market Notes;
(b) a fully executed copy of the Guaranty Agreement;
(c) resolutions of the directors of each Credit Party
and the shareholders of each Credit Party (other than Airgas)
certified by an officer of such Credit Party as of the Closing
Date, approving and adopting the documents described in
subparagraphs (a) and (b) above to be executed by each such
Credit Party and authorizing the execution, delivery and
performance thereof;
(d) a certificate of the corporate secretary or an
assistant secretary of each Credit Party certifying the names
and true signatures of the officers of such Credit Party
authorized to sign the documents described in
subparagraphs (a) and (b) above on behalf of such Credit Party
and the other documents to be delivered hereunder;
(e) (i) the charter documents of Industrial Gases of
Wichita, Inc., The Jimmie Jones Company, Range Arc, Inc. and
Westwind Company, certified as of the Closing Date by the
Secretary of State of each such corporation's state of
incorporation and (ii) a certificate of the corporate
secretary or an assistant secretary of each other Credit
Party, certifying that the charter documents and bylaws of
such Credit Party previously delivered to the Agent have not
been amended through the Closing Date except as provided
therein;
(f) certificates of good standing for each of Industrial
Gases of Wichita, Inc., The Jimmie Jones Company, Range Arc,
Inc. and Westwind Company, issued as of a recent date by the
applicable jurisdiction of incorporation and each other
jurisdiction where any such corporation by the nature of its
business, is required to qualify as a foreign corporation;
(g) the favorable opinion of Messrs. McCausland, Keen &
Buckman, counsel to the Credit Parties, substantially in the
form of Exhibit J hereto;
(h) the Agent shall have received a facility fee of
$125,000, to be shared ratably by the Banks based on their
respective Revolving Credit Loan Commitments; and
(i) such other information and documents as the Agent
may reasonably request.
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ARTICLE X
Conditions of Lending
Except with respect to Revolving Credit Loans and Letter of Credit Term
Loans made pursuant to the terms of Section 5.01(d) or 6.01(d) hereof, the
obligations of the Banks to make any Loans or Money Market Loans or to create
any Bankers' Acceptances and of the LC Agent to issue any Letters of Credit,
are subject to the satisfaction of the conditions precedent set forth in
Article IX hereof on the Closing Date and to the satisfaction of the following
further conditions:
10.01 In the case of each Loan or Money Market Loan to be made hereunder
(other than a Revolving Credit Loan or a Letter of Credit Term Loan made
pursuant to the terms of Section 5.01(d) or 6.01(d) hereof), each Letter of
Credit to be issued hereunder and each Bankers' Acceptance to be created
hereunder:
(a) proper notice of such Loan, Letter of Credit or
Bankers' Acceptance, as the case may be, shall have been
given in accordance with Section 2.02(c), Section
3.01(c), Section 5.01(b), Section 6.01(c) or Section
7.01(a)-(c) hereof, as applicable;
(b) the representations and warranties set forth in
Article XI hereof shall be true and correct in all
material respects on and as of the date of such Loan,
Money Market Loan, Letter of Credit or Bankers'
Acceptance, as the case may be, with the same effect as
though such representations and warranties had been made
on and as of such date, except to the extent that such
representations and warranties expressly relate to an
earlier date; and
(c) at the time of and immediately after giving
effect to each such Loan (other than Revolving Credit
Loans and Letter of Credit Term Loans made pursuant to
the terms of Section 5.01(d) or 6.01(d) hereof), Money
Market Loan, Letter of Credit or Bankers' Acceptance, as
the case may be, no Event of Default, nor any event which
upon notice or lapse of time or both would constitute an
Event of Default, shall have occurred and be continuing.
10.02 In the case of each Revolving Credit Loan to be made hereunder,
each Money Market Loan to be made hereunder, each Letter of Credit to be
issued hereunder and each Bankers' Acceptance to be created hereunder,
immediately after giving effect to such Revolving Credit Loan, Money Market
Loan, Letter of Credit or Bankers' Acceptance, as the case may be, (i) the sum
of (A) the aggregate principal balance of all outstanding Revolving Credit
Loans made by all of the Banks, plus (B) the aggregate LC Outstandings, plus
(C) the aggregate BA Outstandings of all of the Banks, plus (D) the aggregate
principal balance of all outstanding Money Market Loans, shall not exceed (ii)
the aggregate Revolving Credit Loan Commitments of all of the Banks.
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Each borrowing hereunder, each issuance of a Letter of Credit hereunder
and each creation of a Bankers' Acceptance hereunder shall be deemed to be a
representation and warranty by each of the Borrowers on the date of such
borrowing, issuance or creation, as the case may be, as to the matters
specified in Sections 10.01(b) and (c) hereof and each borrowing hereunder
that is a Revolving Credit Loan or a Money Market Loan, each issuance of a
Letter of Credit hereunder and each creation of a Bankers' Acceptance
hereunder also shall be deemed to be a representation and warranty by each of
the Borrowers on the date of such borrowing, issuance or creation, as the case
may be, as to the matters specified in Section 10.02 hereof.
ARTICLE XI
Representations and Warranties
11.01 Each of the Borrowers represents and warrants that:
(a) each of the Credit Parties is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and is duly authorized and qualified to carry on its business in the manner
now being conducted by it in states in which failure to so qualify would or
might have a material adverse effect on the business or operations of such
Credit Party;
(b) each of the Credit Parties has the legal power and authority to own
its properties and assets and to carry on its businesses as now being
conducted and as contemplated by this Loan Agreement and the other Loan
Documents;
(c) each of the Credit Parties has the power and authority to execute,
deliver and perform the Loan Documents to which such Credit Party is a party;
(d) when executed and delivered, the Loan Documents will be valid and
binding obligations of each Credit Party executing such Loan Documents and
will be enforceable in accordance with their respective terms;
(e) the execution, delivery and performance of the Loan Documents:
(i) have been duly authorized by all requisite
corporate action of each Credit Party executing such Loan
Documents required for the lawful creation and issuance
thereof;
(ii) do not violate any material provision of law,
any order of any court or other agency of government or
the corporate charter, certificate of incorporation or
by-laws of any Credit Party, or any provisions of any
indenture, agreement or other instrument to which such
Credit Party or its properties or assets are or will
become bound;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default or an event
which, upon notice or lapse of time, or both, would
constitute such an event of default under any indenture,
agreement or other instrument to which such Credit Party
is a party;
EX-67
(iv) do not and will not result in the creation of
any lien on any assets of any Credit Party;
(f) except as set forth in Exhibit K attached hereto and except for
minor defects in title that do not reduce in any material respect the value of
such property, each of Airgas and its Subsidiaries has good and marketable
title in fee simple to all of its real property and good title to all of its
other property, and none of such property is subject to any mortgage, pledge,
lien, charge or other encumbrance of any nature whatsoever except as may
be permitted hereunder or contemplated hereby;
(g) all of the direct and indirect Subsidiaries of Airgas as of the
Closing Date are set forth in Exhibit L attached hereto;
(h) except as set forth in Exhibit M attached hereto, neither Airgas nor
any of its Subsidiaries owns any interest in any Person;
(i) the audited consolidated balance sheet, income statement and
statement of cash flows of Airgas and its Subsidiaries prepared as of March
31, 1994, copies of each of which have been furnished to each Bank, fairly
present the assets, liabilities and financial condition of Airgas and its
Subsidiaries as at the date thereof, all in accordance with Generally Accepted
Accounting Principles, and since such date to and including the date of this
Loan Agreement there has been no material adverse change in such condition or
in the operations of Airgas and its Subsidiaries taken as a whole;
(j) except as set forth in Exhibit N attached hereto, there is no
pending or, to either Borrower's knowledge following due inquiry, threatened
action or proceeding affecting Airgas or any of its Subsidiaries before any
court, governmental agency or arbitrator, specifically including without
limitation any federal, state or local environmental agency, (i) which would,
if adversely determined, materially adversely affect the financial condition
or operations of Airgas and its Subsidiaries taken as a whole, or (ii)
challenging the execution, delivery, validity or enforceability of any of the
Loan Documents;
(k) each of Airgas and its Subsidiaries is in material compliance with
all statutes, governmental regulations, and applicable judgments, specifically
including without limitation all federal, state, and local requirements
relating to protection of health or the environment in connection with the
operation of such corporation's business;
(l) during the time in which Airgas or any of its Subsidiaries has owned
any real property, no Hazardous Materials were disposed of on, under or about
such real property in such a manner as would give rise to a liability which
would have a material adverse effect on Airgas and its Subsidiaries taken as a
whole, and that, to the extent that Airgas or any of its Subsidiaries
generated, stored or transported Hazardous Materials, such activities were
done in such a manner as would not give rise to a liability for failure to
comply with any applicable federal, state and local laws, ordinances and
regulations which would have a material adverse effect on Airgas and its
Subsidiaries taken as a whole. For purposes hereof, "Hazardous Materials"
shall be defined as "hazardous substances" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.; Hazardous Materials Transportation
Act, 42 U.S.C. Section 6901 et seq.; and thosesubstances defined as "hazardous
wastes" in any state or local laws, rules or regulations applicable to Airgas
EX-68
or any of its Subsidiaries;
(m) none of Airgas or its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Loan or Money
Market Loan nor any Letter of Credit or Bankers' Acceptance will be used
whether directly or indirectly, incidentally or ultimately (i) to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock, or to refund indebtedness incurred
for such purpose, or (ii) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the regulations of the Board of
Governors of the Federal Reserve System, including without limitation
Regulation G, U, T or X thereof. If requested by the Agent, each Borrower
agrees that it will (and will cause each of its Subsidiaries to) furnish to
the Banks a statement in conformity with the requirements of Federal
Reserve Form U-1 referred to in said Regulation U;
(n) each of Airgas and its Subsidiaries possesses all necessary patents,
licenses, trademarks, trademark rights, tradenames, tradename rights and
copyrights to conduct its business without known conflict with any patent,
license, trademark, tradename or copyrights of any other Person;
(o) each of Airgas and its Subsidiaries is in compliance with the
Multi-Employer Pension Plan Amendments Act of 1980 ("MEPP") and has no
liability from pension contributions pursuant to MEPP;
(p) none of Airgas or its Subsidiaries is an "investment company" as
that term is defined in, or otherwise subject to regulation under, the
Investment Company Act of 1940. None of Airgas or its Subsidiaries is a
"Holding Company" as that term is defined in, and is not otherwise subject to
regulation under, the Public Utility Holding Company Act of 1935;
(q) none of Airgas or its Subsidiaries is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to corporate
restrictions materially adversely affecting its business,
properties or assets, operation or condition (financial
or otherwise); or
(ii) in default (except where waived) in the
performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any
agreement or instrument to which such corporation is a
party, which default would or might have a material
adverse effect on the business, properties or assets of
Airgas and its Subsidiaries as a whole;
(r) each of Airgas and its Subsidiaries has filed all United States
federal tax returns and all other tax returns that are required to be filed
and has paid all taxes due pursuant to said returns or pursuant to any
assessment received by such corporation, except such taxes, if any, as are
being contested in good faith and as to which adequate reserves in accordance
with Generally Accepted Accounting Principles have been provided. No tax
liens have been filed, and no claims are being asserted with respect to any
such taxes. The charges, accruals and reserves on the books of each of
Airgas and its Subsidiaries in respect of any taxes or other governmental
EX-69
charges are reasonably adequate;
(s) (i) each of Airgas and its Subsidiaries is in compliance in all
material respects with those provisions of ERISA and the regulations and
public interpretations thereunder which are applicable to such corporation;
(ii) No Reportable Event (as defined in ERISA) has occurred and is continuing
with respect to any Plan; (iii) no proceedings have been instituted, or, to
the knowledge of the Borrowers, planned, to terminate any Plan or to
cause a trustee to be appointed to administer any Plan; (iv) neither any
Credit Party, any other member of the Controlled Group, nor any duly-appointed
administrator of a Plan has instituted or intends to institute proceedings to
withdraw from any Multiemployer Plan; and (v) each Plan has been maintained
and funded in all material respects with its terms and with the provisions of
ERISA applicable thereto.
(t) the information, exhibits and reports furnished by the Credit
Parties, and each of them, to the Banks in connection with the negotiation of
the Loan Documents did not, taken as a whole, contain any material
misstatement of fact or omit to state a material fact or any fact necessary to
make the statements contained therein not misleading; and
(u) no consent, approval or authorization of, or filing, registration or
qualification with, any governmental agency, authority, instrumentality or
regulatory body on the part of any Credit Party is required in conjunction
with the execution, delivery or performance by the Credit Parties, or for the
validity or enforceability, of the Loan Documents.
ARTICLE XII
Affirmative Covenants
12.01 Each of the Borrowers covenants and agrees with the Banks and the
Agent that, so long as this Loan Agreement shall remain in effect or any
Letter of Credit or Bankers' Acceptance shall be outstanding or the principal
of or interest on any Note, Money Market Note, LC Reimbursement Obligation or
BA Reimbursement Obligation or any other expense or amount payable hereunder
remains unpaid, and until the Revolving Credit Loan Commitments are terminated
and the Banks are no longer obligated to make any Letter of Credit Term Loans,
unless the Majority Banks shall otherwise consent in writing, it will and will
cause each of its Subsidiaries to:
(a) (i) as soon as practical and in any event not later than 90 days
after the end of each fiscal year ending after the Closing Date, deliver to
each of the Banks a financial report of Airgas and all of its Subsidiaries
including a balance sheet of Airgas and all of its Subsidiaries as at the end
of such fiscal year, and the notes thereto, and the related statements of
income and retained earnings and the notes thereto and of cash flows for such
fiscal year, prepared on a consolidated and consolidating basis setting forth
in each case comparative financial statements for the corresponding date or
period in the preceding year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis and containing,
with respect to such consolidated financial reports an unqualified opinion of
KPMG Peat Marwick, or other independent certified public accountants selected
by Airgas and acceptable to the Banks;
(ii) as soon as practical and in any event not later than June
30 of each fiscal year, deliver to each of the Banks projections of profit and
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loss statements, balance sheets and cash flow reports for Airgas and all of
its Subsidiaries on a consolidated basis for such fiscal year;
(b) as soon as practical and in any event not later than 60 days after
the end of each of the first three quarters of each fiscal year of Airgas
deliver to each of the Banks a financial report of Airgas and all of its
Subsidiaries including a balance sheet of Airgas and all of its Subsidiaries
as at the end of such quarterly period and the related statements of income
and retained earnings and of cash flows for the quarter then ended and for the
period from the beginning of the current fiscal year to the end of such
quarter, prepared on a consolidated and consolidating basis and setting forth
in each case comparative financial statements for the corresponding date or
period in the preceding year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis and certified by
the chief financial officer or other Executive Officer of Airgas (acting for
Airgas and not as an individual) as presenting fairly the financial condition
and the results of operations of Airgas and all of its Subsidiaries;
(c) as soon as practical and in any event not later than 90 days after
the end of any fiscal quarter during which there occurs an acquisition of a
company permitted by Section 13.01(h)(iv) hereof for a purchase price greater
than 10% of Book Net Worth as at the quarter end immediately preceding the
date of such acquisition, to make available to any Bank upon its request
therefor (i) historical financial information consisting of a balance sheet of
such acquired company prepared as of a recent date and income statements of
such company for the two immediately preceding fiscal years and (ii) a
projected income statement of Airgas, its Subsidiaries and the acquired
company, prepared on a consolidated basis, for the twelve-month period
immediately following such acquisition;
(d) together with each delivery of the financial reports required by
Section 12.01(a)(i) and (b) hereof, deliver to each of the Banks a statement
signed by the chief financial officer or other Executive Officer of Airgas
(acting for Airgas and not as an individual) substantially in the form of
Exhibit O hereto, setting forth (i) that, to the best of his knowledge, each
of the Borrowers has kept, observed, performed and fulfilled each and every
agreement (including without limitation any covenant incorporated herein by
reference pursuant to Section 13A.01 hereof) binding on it contained in the
Loan Documents (and containing calculations demonstrating compliance by Airgas
and its Subsidiaries with the financial covenants set forth in Section
13.01(p), (q), (r) and (s) hereof as at such quarter end) and is not at the
time in default in the keeping, observance, performance or fulfillment of any
of the terms, provisions and conditions of any of the Loan Documents, (ii)
a calculation of the Funded Debt Coverage Ratio as at such quarter end and
(iii) that no Event of Default, nor any event, which upon notice or lapse of
time or both, would constitute an Event of Default, has occurred, or if such
Event of Default exists or would occur as the case may be, stating the nature
thereof, the period of existence thereof and what action the Borrowers propose
to take with respect thereto;
(e) promptly upon becoming available, deliver to each Bank a copy of all
financial statements, reports, notices and proxy statements sent by Airgas or
any of its Subsidiaries to stockholders, and a copy of all regular, periodic
and special reports filed by Airgas or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission ("SEC") or
any governmental authority succeeding to any or all of the functions of the
SEC;
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(f) promptly, from time to time, deliver to the Banks such information
regarding its (and its Subsidiaries') operations, business affairs and
financial condition as the Banks may reasonably request. The Banks are hereby
authorized to deliver a copy of any such financial information delivered
hereunder to the Banks to any regulatory authority having jurisdiction over
any of the Banks pursuant to any request therefor;
(g) use any Bank as its primary depository;
(h) for the purpose of financial reporting maintain its fiscal year as
one ending on March 31;
(i) use the proceeds of the Loans, Money Market Loans and Bankers'
Acceptances for the purposes set forth in RECITAL A hereof;
(j) maintain all properties and assets used or useful in the conduct of
its businesses in good working order and condition and make all needed
repairs, replacements, betterments, improvements, and renewals as are
necessary to conduct its business in accordance with prudent business
practices;
(k) except to the extent otherwise provided in Section 13.01(f) hereof,
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, trademarks, tradenames, material rights,
franchises and licenses;
(l) (i) comply with or contest in good faith all statutes, governmental
regulations and applicable judgments, specifically including without
limitation all federal, state and local environmental laws, rules, and
regulations, and (ii) pay all taxes, assessments, governmental charges, claims
for labor, supplies, rent and any other obligations which, if unpaid, might
become a lien against any of its property except (A) liabilities being
contested in good faith and by appropriate proceedings and against which
reserves in accordance with Generally Accepted Accounting Principles have been
established and (B) taxes that are due but not yet payable;
(m) (i) if the failure to do so would have a material adverse effect on
any Credit Party, conduct and complete all investigations, studies, sampling,
and testing and all remedial, removal, and other actions necessary to clean up
and remove all Hazardous Materials on, from, or affecting its real property
(A) in accordance with all applicable federal, state, and local laws,
regulations, rules, and policies, (B) to the satisfaction of the Banks, and
(C) in accordance with the orders and directives of all federal, state, and
local governmental authorities, and (ii) defend, indemnify, and hold harmless
the Banks, the Agent, their employees, agents, officers, affiliates and
directors, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs, and expenses (including, without
limitation, attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses) of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way related to (A)
the presence, disposal, release, or threatened release of any Hazardous
Materials which are on, from, or affecting the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise in or on its real
property; (B) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to Hazardous
Materials on, from or affecting the soil, water, vegetation, buildings,
personal property, persons, animals, or otherwise in or on its real property;
(C) any lawsuit brought or threatened, settlement reached, or government order
EX-72
relating to Hazardous Materials on, from or affecting the soil, water,
vegetation, buildings, personal property, persons, animals, or otherwise in or
on its real property; and/or (D) any violation of laws, orders, regulations,
requirements, or demands of governmental authorities, or any policies or
requirements of the Banks, which are based upon or in any way related to
Hazardous Materials on, from or affecting the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise in or on its real
property;
(n) defend, indemnify and hold harmless the Banks, the Agent, their
employees, agents, officers, affiliates and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses (including without limitation attorney and consultant fees,
court costs and litigation expenses) of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of or in any way related to
any acquisition permitted by Section 13.01(h)(iv), (v) or (vi) hereof
including, without limitation, all claims of the seller or sellers of any
acquired company;
(o) at all times keep its insurable properties insured to such extent
and against such risks, including, without limitation, general comprehensive
liability insurance, product liability insurance, worker's compensation and
other insurance required by law, as is customary with companies of comparable
size in the same or similar businesses. The coverage as of the Closing Date
of each of Airgas and its Subsidiaries is outlined as to carrier, policy
number, expiration date, type and amount in Exhibit P hereto;
(p) preserve and protect its patents, licenses, trademarks, trademark
rights, tradenames, tradename rights and copyrights;
(q) keep true books of records and accounts in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, and in which
full, true and correct entries will be made of all of its dealings and
transactions;
(r) permit any officer of any of the Banks designated in writing by such
Bank, to visit and inspect any of its properties, corporate books and
financial records at such times as such Bank may reasonably request upon
reasonable notice and during ordinary business hours;
(s) upon the written request of any of the Banks, authorize any officer
of such Bank to discuss its financial statements and financial affairs at any
time from time to time with the independent certified public accountants of
Airgas and its Subsidiaries upon reasonable notice and during ordinary
business hours;
(t) deliver to the Banks forthwith, upon any Executive Officer of Airgas
obtaining knowledge of an Event of Default or an event which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both, a certificate of the chief financial officer or other
Executive Officer of Airgas specifying the nature and period of existence
thereof and what action the Borrowers propose to take with respect thereto;
(u) pay the fee to the Agent as set forth in agent's fee agreement of
even date herewith;
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(v) notify the Agent in writing within five (5) Business Days after any
Executive Officer of any Credit Party knows or has reason to know of the
occurrence of any of the following with respect to Airgas or any of its
Subsidiaries:
(i) the pendency or commencement of any material
action, suit or proceeding at law or in equity wherein
the opposing party either seeks damages of more than
$250,000.00 in excess of applicable insurance coverage or
damages of more than $3,000,000.00 in any instance;
(ii) any event or condition which shall constitute
an event of default under any other agreement for
borrowed money in excess of $500,000.00;
(iii) any levy of an attachment, execution or other
process against a significant part of its assets; or
(iv) any change in any existing agreement or
contract which would likely materially adversely affect
the business or affairs, financial or otherwise, of
Airgas and its Subsidiaries taken as a whole;
The Agent shall promptly notify the Banks of any notice received by the Agent
pursuant to this Section 12.01(v).
(w) (i) comply with the applicable provisions of the Employee
Retirement Income Security Act of 1974 as amended ("ERISA") where the failure
so to comply might reasonably be expected materially to impair the right of
Airgas or any of its Subsidiaries to carry on business as now being conducted
or to affect materially adversely the financial condition of such
corporation and (ii) furnish to the Banks, (A) as soon as possible, and in any
event within five (5) Business Days after any Executive Officer of any Credit
Party knows or has reason to know that any Reportable Event with respect to
any Plan has occurred, a statement of the chief financial officer of Airgas
setting forth details as to such Reportable Event and the action that the
Borrowers propose to take with respect thereto, together with a copy of the
notice of such Reportable Event, if any, given to the Pension Benefit Guaranty
Corporation or any successor thereto ("PBGC"), and (B) promptly after the
receipt or filing thereof, a copy of any notice Airgas or any of its
Subsidiaries may receive from the PBGC relating to the intention of PBGC to
terminate any Plan or to appoint a trustee to administer any Plan and all
reports and notices relating to any Reportable Event or Prohibited Transaction
(as defined in ERISA). For purposes hereof,
(1) "Plan" shall mean any employee plan which is
subject to the provisions of Title IV of ERISA and which
is maintained for employees of Airgas or any of its
Subsidiaries or any other trade or business which is
under common control with Airgas or any of its
Subsidiaries within the meaning of Section 414(c) of the
Internal Revenue Code of 1986, as amended, or the
regulations thereunder; and
(2) "Reportable Event" shall mean any Reportable
Event as defined in Section 4043 of ERISA or the
regulations thereunder for which the 30-day notice
requirement has not been waived by PBGC;
EX-74
(x) execute any and all further documents, agreements and instruments,
and take all further actions which may be required under applicable law, or
which the Majority Banks may reasonably request, in order to effectuate the
transactions contemplated by this Loan Agreement; and
(y) cause (i) each of Mauritius Industrial Gases, Inc., Poligaz, S.A.
and Polska Airgas, S.A. at such time as any such Subsidiary shall have total
assets of at least $3,000,000 and (ii) each other Subsidiary hereafter
acquired by any Credit Party prior to the Maturity Date (A) to become a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement and (B) to
deliver to the Agent such other documentation as the Agent may reasonably
request in connection with the foregoing, including, without limitation,
certified corporate resolutions and other corporate documents of such Person
and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
obligations of such Subsidiary under the Guaranty Agreement); provided,
however, with respect to any such Subsidiary described above which is a
Canadian Subsidiary (1) such Canadian Subsidiary shall not be obligated to so
guarantee the obligations of the Borrowers during the 90 day period
immediately succeeding the date of acquisition of such Canadian
subsidiary and (2) if, subsequent to such Canadian Subsidiary becoming a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement, any Canadian
Lender has agreed to provide financing to such Canadian Subsidiary to provide
for the working capital, capital expenditure, acquisition costs and/or letter
of credit needs of such Canadian Subsidiary, then, promptly upon the request
of the Borrowers, the Agent (on behalf of the Banks) shall thereupon release
such Canadian Subsidiary from the Guaranty Agreement.
The provisions of subsections (m)(ii) and (n) of this Section 12.01 shall
remain operative and in full force and effect regardless of the expiration of
this Loan Agreement.
ARTICLE XIII
Negative Covenants
13.01 Each of the Borrowers covenants and agrees with the Banks and the
Agent that, so long as this Loan Agreement shall remain in effect or any
Letter of Credit or Bankers' Acceptance shall be outstanding or the principal
of or interest on any Note, Money Market Note, LC Reimbursement Obligation or
BA Reimbursement Obligation or any other expense or amount payable hereunder
remains unpaid, and until the Revolving Credit Loan Commitments are terminated
and the Banks are no longer obligated to make any Letter of Credit Term Loans,
without the prior written consent of the Majority Banks, it will not nor will
it enter into any binding agreement to or permit any Subsidiary to:
(a) incur, create, assume or permit to exist any indebtedness for
borrowed money, however evidenced, or its equivalent, except
(i) the Loans, the Letters of Credit (and the
related LC Reimbursement Obligations), the Bankers'
Acceptances (and the related BA Reimbursement
Obligations) and the Money Market Loans;
EX-75
(ii) existing indebtedness set forth in Exhibit Q
hereto (and renewals, refinancings or extensions (but not
any increases in the outstanding principal amount)
thereof on terms and conditions no less favorable to such
Borrower or Subsidiary than the terms and conditions of
such existing indebtedness);
(iii) indebtedness evidenced by endorsement of
negotiable instruments for collection and done in the
ordinary course of business;
(iv) the Subordinated Debt;
(v) unsecured indebtedness incurred in favor of the
sellers of the companies described in Section
13.01(h)(iv) and (v) hereof in order to finance the
acquisition of such companies;
(vi) standby letters of credit (other than standby
Letters of Credit issued pursuant to Section 5.01 hereof)
provided that the full amount available to be drawn
thereunder is at all times backed or secured by a Letter
of Credit issued pursuant to Section 5.01 hereof;
(vii) indebtedness to NationsBank of up to $30,000,000
under the Promissory Note dated January 31, 1994 and attached
hereto as Schedule 4, incurred from time to time on or after
the date of acquisition by Airgas (directly or indirectly
through one or more of its Subsidiaries) of certain assets of
the retail, industrial, medical and specialty gas businesses
of The BOC Group, Inc. (Airco) in California and Nevada; and
(viii) other present or future indebtedness of Airgas
or any of its Subsidiaries, provided that the aggregate
amount of such indebtedness at any time outstanding shall
not exceed $20,000,000.00; provided, however, that
nothing contained in this Section 13.01(a) or any other
provision of this Loan Agreement shall prevent any Credit
Party from entering into, as lessee, any real estate
leases (other than capitalized leases) or operating
leases of equipment in the ordinary course of such Credit
Party's business;
(b) incur, create, assume or permit to exist any mortgage, pledge, lien,
charge or other encumbrance of any nature whatsoever on any of its assets, now
or hereafter owned, other than
(i) liens in favor of the Agent, on behalf of the
Banks, arising after the Closing Date;
(ii) existing liens as set forth in Exhibit K
hereto;
(iii) any unfiled lien of materialmen, mechanics,
workmen, warehousemen, carriers, landlords or repairmen;
provided that if such a lien shall be perfected and shall
not be contested in good faith, it shall be discharged of
record immediately by payment, bond or otherwise;
EX-76
(iv) tax liens for taxes which are not yet due and
payable or which are being contested in good faith and by
appropriate proceedings and against which reserves in
accordance with Generally Accepted Accounting Principles
have been established;
(v) condemnation actions;
(vi) easements, rights-of-way, restrictions and
other similar encumbrances that do not reduce in any
material respect the value of the applicable real
property; and
(vii) purchase money liens granted in connection with
indebtedness permitted by Section 13.01(a)(viii) hereof;
(c) acquire, consolidate, merge or combine with any Person; provided,
however, (i) any Credit Party may acquire, by purchase, consolidation, merger,
combination or otherwise, the companies described in Section 13.01(h)(iv) or
(v) hereof so long as such Credit Party is the surviving corporation; (ii)
either Borrower may merge with any Guarantee Subsidiary so long as such
Borrower is the surviving corporation; and (iii) any Guarantee Subsidiary may
merge with another Guarantee Subsidiary;
(d) sell, transfer or otherwise dispose of any of its properties and
assets (including without limitation any Capital Stock in any of its
Subsidiaries) except (i) sales or leases in the ordinary course of business;
(ii) transfers of assets to an Airgas-affiliated real estate investment trust
(the "REIT") provided that (A) such transfers are made prior to the first
anniversary date of the Closing Date, (B) the terms and conditions of the REIT
structure, the associated investments in the REIT stock and the leaseback
agreements regarding assets contributed to the REIT shall be acceptable to the
Majority Banks in their sole reasonable discretion, (C) the fair market value
of assets contributed to the REIT and the corresponding fair market value of
the compensation received therefor shall be equivalent, as evidenced by
appraisals acceptable to the Majority Banks in their sole reasonable
discretion, (D) non-cash assets received as compensation for contributions to
the REIT shall be in a form satisfactory to the Majority Banks in their sole
reasonable discretion and (E) at no time shall (1) the sum of (I) the
aggregate fair market value of all assets contributed to the REIT by Airgas
and its Subsidiaries as permitted under this clause (d)(ii) and the aggregate
amount of investments (other than asset contributions otherwise permitted by
this clause (d)(ii)) made in the REIT as permitted under Section 13.01(h)(vii)
hereof plus (II) the aggregate outstanding principal amount guaranteed
pursuant to all guarantees permitted under Section 13.01(g)(iv) hereof, plus
(III) the aggregate outstanding amount of investments permitted under Section
13.01(h)(vi) hereof, plus (IV) the aggregate outstanding principal amount of
loans and advances permitted under Section 13.01(k)(iii) hereof, plus (V) the
aggregate outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (2) 20% of Book Net Worth as of the end of the
then immediately preceding fiscal quarter; and (iii) other non-ordinary course
of business sales (including Sale/Leaseback Transactions permitted by Section
13.01(e) hereof) provided that (A) the aggregate net book value of the assets
sold by Airgas or any of its Subsidiaries in all such transactions in any
fiscal year does not exceed 10% of Total Assets as of the end of the
immediately preceding fiscal year, (B) the aggregate net book value of the
assets sold by Airgas or any of its Subsidiaries in all such transactions
after the Closing Date does not exceed 25% of Total Assets as of the end of
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the fiscal year immediately preceding the then current fiscal year, (C) the
sale price for any asset sold in any such transaction shall not be less than
the fair market value of such asset, (D) each such transaction involving
assets having a net book value of $500,000 or more shall be on an arms-length
basis with a wholly independent third party and (E) no Event of Default nor
any event or condition which, with the giving of notice or lapse of time or
both, would constitute an Event of Default, shall have occurred and be
continuing at the time of any such sale or shall result upon giving effect
thereto; provided, however, that any Credit Party may enter into leases as
lessor in the ordinary course of such Credit Party's business.
(e) enter into any arrangement (a "Sale/Leaseback Transaction"),
directly or indirectly, with any Person whereby Airgas or any of its
Subsidiaries shall sell or transfer any property, real or personal, whether
now owned or hereafter acquired, and used or useful in such Person's business,
and thereafter rent or lease such property or other property which such
Person intends to use for substantially the same purpose or purposes as the
property being sold or transferred; provided that Airgas or any of its
Subsidiaries may enter into any Sale/Leaseback Transaction if (i) such
transaction would be permitted under Section 13.01(d) hereof; and (ii) the net
cash proceeds of each such transaction are applied immediately to repay or
prepay the Borrowers' Obligations (which repayments and/or prepayments shall
not reduce the Revolving Credit Loan Commitments of the Banks hereunder);
(f) seek or permit dissolution, liquidation, or termination in whole or
in part; provided, however, any corporation 85% or more of the Capital Stock
of which is owned by any Credit Party may be dissolved, liquidated or
terminated without the consent of the Banks;
(g) guarantee directly or indirectly the obligations of any Person
except for (i) the guarantee of a Guarantee Subsidiary pursuant to the
Guaranty Agreement, (ii) endorsements of negotiable instruments in the
ordinary course of business, (iii) the unsecured guarantee by Airgas of any
indebtedness permitted under Section 13.01(a) hereof and (iv) additional
guarantees provided that at no time shall (A) the sum of (1) the aggregate
outstanding principal amount guaranteed pursuant to all such guarantees
permitted under this clause (iv), plus (2) the aggregate fair market value of
all assets contributed to the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate amount of investments
(other than asset contributions otherwise permitted by Section 13.01(d)(ii)
hereof) made in the REIT as permitted under Section 13.01(h)(vii) hereof, plus
(3) the aggregate outstanding amount of investments permitted under Section
13.01(h)(vi) hereof, plus (4) the aggregate outstanding principal amount of
loans and advances permitted under Section 13.01(k)(iii) hereof, plus (5) the
aggregate outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as of the end of the
then immediately preceding fiscal quarter;
(h) purchase, own, invest in or otherwise acquire, directly or
indirectly, any stock or other securities, or make or permit to exist any
investment or capital contribution or acquire any interest whatsoever in any
other Person or permit to exist any loans or advances for such purposes;
provided, however, any Credit Party may maintain existing investments in the
other Credit Parties and any Credit Party may maintain investments in or
invest in:
EX-78
(i) direct obligations of the United States of
America, or any agency thereof or obligations guaranteed
by the United States of America; provided, that such
obligations mature within one year from the date of
acquisition thereof;
(ii) certificates of deposit maturing within one
year from the date of acquisition issued by one of the
Banks, or by any other bank or trust company organized
under the laws of the United States or any state thereof
having a long term debt rating of A or better by Moody's
Investors Service, Inc. and/or Standard and Poor's
Corporation and not known by the Borrowers to be having
financial difficulties;
(iii) commercial paper rated P-1 or P-2 by Moody's
Investors Service, Inc. (Commercial Paper Record) and
rated A-1 or A-2 by Standard and Poors Corporation
(Commercial Paper Ratings Guide);
(iv) companies (including Canadian companies)
conducting a line of business similar to and compatible
with (A) the business formerly conducted by Jackson, (B)
the business of US Cryogenics, Inc. prior to its sale by
US Airgas, Inc. or (C) the business of Nitrous Oxide,
Leasing and those other Credit Parties which conduct a
gas distribution business, including the distribution of
equipment and/or supplies related thereto;
(v) capital assets for companies described in
clause (iv) above, acquired incidental to and within 12
months after the acquisition of such company;
(vi) companies having a business involving the
financing of customers and suppliers of any of Airgas and
its Subsidiaries, provided that at no time shall (A) the
sum of (1) the aggregate outstanding amount of
investments permitted under this clause (vi), plus (2)
the aggregate fair market value of all assets contributed
to the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) made
in the REIT as permitted under Section 13.01(h)(vii)
hereof, plus (3) the aggregate outstanding principal
amount guaranteed pursuant to all guarantees permitted
under Section 13.01(g)(iv) hereof, plus (4) the aggregate
outstanding principal amount of loans and advances
permitted under Section 13.01(k)(iii) hereof, plus (5)
the aggregate outstanding amount of investments permitted
under Section 13.01(m)(ii) hereof, exceed (B) 20% of Book
Net Worth as of the end of the then immediately preceding
fiscal quarter;
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(vii) investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) in
the REIT described in Section 13.01(d)(ii) hereof,
provided that at no time shall (A) the sum of (1) the
aggregate fair market value of all assets contributed to
the REIT by Airgas and its Subsidiaries as permitted
under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions
otherwise permitted by Section 13.01(d)(ii) hereof) made
in the REIT as permitted under this clause (vii), plus
(2) the aggregate outstanding principal amount guaranteed
pursuant to all guarantees permitted under Section
13.01(g)(iv) hereof, plus (3) the aggregate outstanding
amount of investments permitted under Section
13.01(h)(vi) hereof, plus (4) the aggregate outstanding
principal amount of loans and advances permitted under
Section 13.01(k)(iii) hereof, plus (5) the aggregate
outstanding amount of investments permitted under Section
13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as
of the end of the then immediately preceding fiscal
quarter; and
(viii) investments permitted by Section 13.01(m)
hereof;
(i) discount or sell any of its notes or accounts receivable; provided,
however, Airgas or any of its Subsidiaries may discount or sell installment
sales contracts relating to the sale of cylinders or equipment held for sale
in the normal course of business;
(j) enter into any transaction, including, without limitation, the
purchase, sale, leasing or exchange of property, real or personal, or the
rendering of any service, with any Affiliate, any Subsidiary which is not a
Credit Party, or any stockholder, officer or director of Airgas or any of its
Subsidiaries, except in the ordinary course of and pursuant to the reasonable
requirements of such Person's business and upon fair and reasonable terms no
less favorable as a whole to such Person than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, Subsidiary,
stockholder, officer or director of Airgas or any of its Subsidiaries;
provided, however, that any Subsidiary of Airgas may issue, sell and/or
distribute to officers of such Subsidiary additional shares of stock in such
Subsidiary not to exceed 15% in the aggregate of any class of stock of such
Subsidiary for all such officers;
(k) make any loans or advances to any Person except (i) loans or
advances in the ordinary course of business including any loans or advances
made in connection with the sale of cylinders on an installment basis; (ii)
loans or advances to any Credit Party; and (iii) additional loans and
investments provided that at no time shall (A) the sum of (1) the aggregate
outstanding principal amount of loans and advances permitted under this clause
(iii), plus (2) the aggregate fair market value of all assets contributed to
the REIT by Airgas and its Subsidiaries as permitted under Section
13.01(d)(ii) hereof and the aggregate amount of investments (other
than asset contributions otherwise permitted by Section 13.01(d)(ii) hereof)
made in the REIT as permitted under Section 13.01(h)(vii) hereof, plus (3) the
aggregate outstanding principal amount guaranteed pursuant to all guarantees
permitted under Section 13.01(g)(iv) hereof, plus (4) the aggregate
outstanding amount of investments permitted under Section 13.01(h)(vi) hereof,
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plus (5) the aggregate outstanding amount of investments permitted under
Section 13.01(m)(ii) hereof, exceed (B) 20% of Book Net Worth as of the end of
the then immediately preceding quarter;
(l) declare or pay any cash dividends (other than stock dividends) or
redeem or retire any of its capital stock at any time when there exists, or
if, as a consequence thereof, there would occur, any Event of Default or any
event or condition which, with the giving of notice or lapse of time or both,
would constitute such an Event of Default;
(m) create or permit to exist any partnerships or joint ventures or make
any similar substantial investment other than (i) the existing joint venture
interest of Midwest in Elkem Metals Company and (ii) additional investments
provided that at no time shall (A) the sum of (1) the aggregate outstanding
amount of investments permitted under this clause (ii), plus (2) the aggregate
fair market value of all assets contributed to the REIT by Airgas and its
Subsidiaries as permitted under Section 13.01(d)(ii) hereof and the aggregate
amount of investments (other than asset contributions otherwise permitted by
Section 13.01(d)(ii) hereof) made in the REIT as permitted under Section
13.01(h)(vii) hereof, plus (3) the aggregate outstanding principal amount
guaranteed pursuant to all guarantees permitted under Section 13.01(g)(iv)
hereof, plus (4) the aggregate outstanding amount of investments permitted
under Section 13.01(h)(vi) hereof, plus (5) the aggregate outstanding
principal amount of loans and advances permitted under Section 13.01(k)(iii)
hereof, exceed (B) 20% of Book Net Worth as of the end of the then immediately
preceding fiscal quarter;
(n) enter into a line of business other than (i) a line of business
which is similar to and compatible with (A) the business formerly conducted by
Jackson, (B) the business of US Cryogenics, Inc. prior to its sale to US
Airgas, Inc. or (C) the business of Nitrous Oxide, Leasing and those other
Credit Parties which conduct a gas distribution business, including the
distribution of equipment and/or supplies related thereto, (ii) a business
involving the financing of customers and suppliers of any of Airgas and its
Subsidiaries or (iii) any other business conducted by Airgas or any of its
Subsidiaries as of the Closing Date;
(o) change its current accounting practices regarding recognition of
income except in connection with changes in Generally Accepted Accounting
Principles;
(p) permit the Leverage Ratio at any time to be greater than 0.7 to 1.0;
(q) permit the Current Ratio at any time to be less than 1.3 to 1.0;
(r) permit the Fixed Charge Coverage Ratio as of the last day of any
fiscal quarterly period to be less than 1.45 to 1.00;
(s) permit Book Net Worth at any time to be less than $140,000,000.00;
provided, however, (i) such amount shall be increased at the end of each
fiscal year (commencing with the end of the fiscal year ending March 31, 1995)
by an amount equal to the greater of $3,000,000.00 or 75% of Airgas and its
Subsidiaries' net income for the fiscal year then ending (computed on a
consolidated basis in accordance with Generally Accepted Accounting
Principles) and (ii) in addition to any increases pursuant to clause (i)
above, such amount shall also be increased by 75% of the net proceeds
received by Airgas or any of its Subsidiaries in connection with (A) any
private or public sale or placement of its common or preferred stock
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(including, without limitation, any placement of stock in connection with the
exercise of warrants or options), (B) the conversion of any Subordinated Debt
into equity or (C) any other transaction which, in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, increases the
owners' equity accounts of Airgas or any of its Subsidiaries; provided
further, such amount shall be reduced to the extent recommended by the
independent certified public accountants of Airgas and its Subsidiaries (and
concurred in by the Banks) in connection with adjustments made in accordance
with Statements on Financial Accounting Standards (SFAs) #106 and #109;
(t) except as otherwise permitted in writing by the Majority Banks, make
any payment of principal or interest on any Subordinated Debt if at the time
of the proposed payment the documents evidencing such Subordinated Debt
provide that the holders thereof shall not be entitled to receive payment
thereof until the term of this Loan Agreement shall have expired in accordance
with the provisions of Section 16.11 hereof; or
(u) except as otherwise permitted in writing by the Majority Banks,
enter into any modification or amendment of the terms or provisions of either
Senior Subordinated Note Purchase Agreement or any other document executed in
connection with the Subordinated Debt.
ARTICLE XIIIA
Incorporation of Subordinated Debt Covenants
13A.01 The covenants contained in Section 10 of each of the Senior
Subordinated Note Purchase Agreements, as such covenants may be amended or
modified from time to time (the "Incorporated Covenants"), are hereby
incorporated herein by reference and shall be as binding on the Borrowers as
if set forth fully herein. In the event that both of the Senior Subordinated
Note Purchase Agreements are terminated, the provisions of this Section 13A.01
shall have no further force or effect.
ARTICLE XIV
Events of Default and Acceleration
14.01 If any of the following events (the "Events of Default") shall
occur and be continuing:
(a) (i) the failure of the Borrowers to make when due any payment of
interest, fees or other amounts required by this Loan Agreement and/or any of
the other Loan Documents (other than a payment of principal) and the
continuation of such failure for five (5) days; or (ii) the failure of the
Borrowers to make when due any payment of principal required by this Loan
Agreement and/or any of the Notes or Money Market Notes;
(b) the failure of any Credit Party to comply with any other terms and
conditions in this Loan Agreement (including without limitation any covenant
incorporated herein by reference pursuant to Section 13A.01 hereof) or the
other Loan Documents within 30 days after the earlier to occur of (i) written
notice from the Agent specifying the default and requesting that it be
remedied; or (ii) an Executive Officer of Airgas becomes aware of such
violation;
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(c) any representation or warranty made by the Credit Parties, or any of
them, herein or in any of the other Loan Documents or in any certificate,
statement or report heretofore or hereafter made (or deemed made pursuant to
Article X hereof) shall be untrue in any material respect when made (or deemed
made);
(d) any Credit Party:
(i) shall make an assignment for the benefit of
creditors; or
(ii) has a petition initiating a proceeding under
any section or chapter of the Bankruptcy Code or its
amendments, filed by or against such Credit Party, and,
if against such Credit Party, such petition is not set
aside or dismissed within sixty (60) days after such
filing; or
(iii) shall file any judicial proceedings for
dissolution or liquidation; or
(iv) has a receiver, trustee or custodian appointed
for all or a material part of its assets which, if
involuntary, is not dismissed within 60 days of such
appointment; or
(v) seeks to make an adjustment, settlement or
extension of its debts with its creditors generally; or
(vi) shall consent to or acquiesce in any of the
events specified in this subsection (d) which are
commenced or instituted against such Credit Party;
(e) one or more judgments or decrees shall be entered against any Credit
Party involving in the aggregate liabilities (to the extent not paid or to the
extent not fully covered by insurance or by adequate reserves (as determined
by the Majority Banks in their sole reasonable discretion) provided by such
Person) of $500,000.00 or more and all or some of such judgments and decrees
(to the extent necessary to reduce the aggregate liability to less than
$500,000.00) shall not have been vacated, discharged or stayed within 30 days
from the entry thereof;
(f) any Credit Party defaults in the performance of any recourse
obligation incurred in connection with the sale of conditional sales contracts
relating to the sale of cylinders, unless such default is in connection with a
bona fide dispute and the applicable Credit Party shall have made adequate
provision (as determined by the Majority Banks in their sole reasonable
discretion) for such obligation on its books of account;
(g) any Credit Party in the performance of any other agreement between
it and any other lender (including without limitation one of the Banks) fails
to pay when due any indebtedness for borrowed money having a principal balance
(alone or in the aggregate) in excess of $500,000.00 or otherwise defaults
with respect to any such indebtedness and such default results in or would
permit the acceleration thereof, unless, with respect to any indebtedness
permitted by Section 13.01(a)(v) hereof, such default is in connection with a
bona fide dispute as to the right of the applicable Credit Party to offset
such indebtedness against indemnification obligations of the holder of such
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indebtedness to such Credit Party and such Credit Party shall have made
adequate provision (as determined by the Majority Banks in their sole
reasonable discretion) for such indebtedness on its books of account;
(h) any Person and/or its Affiliates shall own in the aggregate more
than 35% of the Voting Stock of Airgas; provided, however, such occurrence
shall not constitute an Event of Default hereunder until a period of 30 days
has elapsed from the date of the acquisition by such Person and/or its
Affiliates of Voting Stock of Airgas which gives such Person and/or its
Affiliates an aggregate ownership of more than 35% of the Voting Stock of
Airgas; provided further, if such Person and/or its Affiliates have filed
a tender offer statement with the Securities and Exchange Commission in
connection with such acquisition, the 30 day period referenced above in the
foregoing proviso shall commence on the date of the filing with the Securities
and Exchange Commission of such tender offer statement;
(i) any Credit Party or other member of the Controlled Group shall fail
to pay when due an amount or amounts aggregating in excess of $500,000.00
which it shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans which in the aggregate have unfunded
liabilities in excess of $500,000.00 (individually and collectively, a
"Material Plan") shall be filed under Title IV of ERISA by any member of the
Controlled Group, any plan administrator or any combination of the above; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default (within
the meaning of Section 4219(c)(5) of ERISA) with respect to, one or more
Multiemployer Plans which could cause one or more members of the Controlled
Group to incur a current payment obligation in excess of $500,000.00;
(j) an event of default shall occur under any of the other Loan
Documents;
then, and in every such event (other than an event described in paragraph (d)
above) and at any time thereafter during the continuance of such event, the
Agent may and shall upon request of any Bank with respect to an event
described in subparagraph (a) above or upon the request of the Majority Banks
with respect to an event described in subparagraph (b), (c), (e), (f), (g),
(h), (i) or (j) above, by written notice to the Borrowers, take any or all
of the following actions, at the same or different times: (i) terminate
forthwith the commitments of all the Banks and the LC Agent hereunder to make
Extensions of Credit; (ii) declare the Notes, the Money Market Notes, the LC
Reimbursement Obligations and the BA Reimbursement Obligations and all fees
and other amounts payable hereunder to be forthwith due and payable, whereupon
the Notes, the Money Market Notes, the LC Reimbursement Obligations and
the BA Reimbursement Obligations, both as to principal and interest, and all
fees and other amounts payable hereunder, shall become forthwith due and
payable without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by each of the Borrowers, anything
contained herein or in the Notes or the Money Market Notes to the contrary
notwithstanding; and (iii) pursue any other remedy under this Loan Agreement
or any other Loan Document or otherwise; and, in any event described in
paragraph (d) above, the commitments of all the Banks and of the LC Agent
hereunder to make Extensions of Credit shall automatically terminate and the
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Notes, the Money Market Notes, the LC Reimbursement Obligations and the BA
Reimbursement Obligations, both as to principal and interest, and all fees and
other amounts payable hereunder, shall automatically become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each of the Borrowers, anything contained
herein or in the Notes or the Money Market Notes to the contrary
notwithstanding, and the Agent may pursue any other remedy under this Loan
Agreement or any other Loan Document or otherwise.
ARTICLE XV
The Agent
15.01 Each Bank hereby irrevocably designates and appoints the Agent as
the agent of such Bank under this Loan Agreement and the other Loan Documents,
and each Bank hereby irrevocably authorizes the Agent, as the agent for such
Bank, to take such action on its behalf under the provisions of this Loan
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this Loan
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Loan Agreement, or any of the other Loan Documents, the
Agent shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Loan Agreement or the other Loan Documents
or otherwise exist against the Agent.
15.02 The Agent may execute any of its duties under this Loan Agreement
or the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
15.03 Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with any of the Loan Documents (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Banks for any recitals, statements, representations or
warranties made by the Credit Parties contained in any of the Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with, the
Loan Documents or enforceability or sufficiency of any of the Loan Documents,
or for any failure of any Credit Party to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any of the Loan Documents or to
inspect the properties, books or records of the Credit Parties.
15.04 The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any Note, Money Market Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Credit Parties),
EX-85
independent accountants and other experts selected by the Agent. The Agent
may deem and treat the payee of any Note or Money Market Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent. The Agent shall be
fully justified in failing or refusing to take any action under any of the
Loan Documents unless it shall first receive such advice or concurrence
of the Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under any of the Loan Documents in accordance with a request of
the Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders of the
Notes or the Money Market Notes.
15.05 The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default hereunder unless the Agent has received
notice from a Bank or a Credit Party referring to the applicable Loan Document
and describing such Event of Default. In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Banks. The Agent
shall take such action with respect to such Event of Default as shall be
directed in accordance with Section 14.01 or Section 16.05 hereof; provided
that, unless and until the Agent shall have received such directions, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default as it shall deem
advisable in the best interests of the Banks.
15.06 Each Bank expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the Agent
or any affiliate thereof hereafter taken, including any review of the affairs
of the Credit Parties, shall be deemed to constitute any representation or
warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of each of the Credit
Parties and made its own decision to make its loans hereunder and enter into
this Loan Agreement. Each Bank also represents that it will, independently
and without reliance upon the Agent or the other Banks, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Loan Agreement, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of each of the Credit
Parties. Except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Credit Parties which may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
15.07 The Banks agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrowers, or either of them, and without
limiting the obligation of the Borrowers, and each of them, to do so), ratably
according to the respective amounts outstanding to the Borrowers, from and
against any and all liabilities, obligations, losses, damages, penalties,
EX-86
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes and the Money Market Notes) be imposed on,
incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct; provided, further, no Bank shall be
obligated for the ratable share of such indemnity obligations of any other
Bank. The agreements in this subsection shall survive the payment of the
Notes and the Money Market Notes and all other amounts payable hereunder.
15.08 The Agent and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with any of the Credit
Parties as though the Agent were not the Agent hereunder. With respect to its
Loans made or renewed by it, any Letters of Credit, any Bankers' Acceptances
created by it and any Note or Money Market Note issued to it, the Agent shall
have the same rights and powers under this Loan Agreement as any Bank and
may exercise the same as though it were not the Agent.
15.09 The Agent may resign at any time by giving written notice thereof
to the Banks and the Borrowers and may be removed at any time with or without
cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Agent, then the retiring Agent shall select a successor Agent provided such
successor Agent is a commercial bank organized under the laws of the United
States of America or of any State thereof and has a combined capital and
surplus of at least $400,000,000.00. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Loan Agreement and the other Loan
Documents. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article XV shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this Loan
Agreement and the other Loan Documents.
ARTICLE XVI
Miscellaneous
16.01 All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing or by telefax and, unless
otherwise expressly provided herein, shall be deemed to have been duly given
or made when delivered by hand, or when deposited in the mail, first-class
postage prepaid, or, in the case of telefax notice, when sent, addressed as
follows, or to such address or other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
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(a) if to the Borrowers:
Airgas, Inc.
Five Radnor Corporate Center
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Britton H. Murdoch
[Courtesy Copy to:
McCausland, Keen & Buckman
Five Radnor Corporate Center
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Melvin J. Buckman, Esq.]
(b) if to the Banks
(i) NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
(ii) The Bank of New York
One Wall Street
New York, New York 10286
Attention: Michael V. Flannery, Jr.
(iii) First Fidelity Bank, N.A.
Broad & Walnut Streets
Philadelphia, Pennsylvania 19109
Attention: Carl Goelz
(iv) Philadelphia National Bank,
Incorporated as Corestates Bank, NA
Broad & Chestnut Streets, FC1-8-3-16
P.O. Box 7618
Philadelphia, Pennsylvania 19101-7618
Attention: Matthew T. Panarese
(v) Continental Bank
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Patrick Canning
(vi) Meridian Bank
One Liberty Place
1650 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103
Attention: David W. Mills
(vii) NBD Bank, N.A.
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Nancy L. Russell
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(viii) (A) For credit matters:
CIBC Inc.
425 Lexington Avenue
New York, New York 10017
Attention: Paul T. LaHiff
(B) For operations matters:
CIBC Inc.
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Attention: Vice President
Credit Operations
(ix) PNC Bank, National Association
Land Title Building
Broad & Chestnut Streets
Philadelphia, Pennsylvania 19101
Attention: Todd Dissinger
(c) if to the Agent
NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 8th Floor
Charlotte, North Carolina 28255
Attention: M. Gregory Seaton
Eastern Corporate Group
16.02 No failure or delay on the part of any of the Banks in the
exercise of any right, power or privilege hereunder or under any other Loan
Document shall operate as a waiver of any such right, power or privilege nor
shall any such failure or delay preclude any other or further exercise
thereof. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
16.03 All covenants, agreements, representations and warranties made
herein and in the other Loan Documents shall survive the making by the Banks
of all Extensions of Credit and the execution and delivery to the Banks of the
Loan Documents and shall continue in full force and effect so long as any of
the indebtedness of any of the Borrowers to the Banks or any obligations of
the Banks under the Revolving Credit Loan Commitments remain outstanding.
Whenever in this Loan Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party and all covenants, provisions and agreements by or on behalf of the
Credit Parties, and each of them, which are contained in the Loan Documents or
this Loan Agreement shall inure to the benefit of the successors and assigns
of the Banks.
16.04 The Borrowers jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of the Agent in connection with the
preparation, execution and delivery of the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of special counsel
to the Agent, and out-of-pocket costs and expenses of the Banks in connection
with the enforcement of this Loan Agreement and the other Loan Documents and
to hold the Banks harmless from any and all such costs, expenses and
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liabilities. In addition, the Borrowers jointly and severally agree to pay to
each Bank an amendment fee of not less than $3,000.00 on the effective date of
each agreement hereafter entered into among the Borrowers and the Banks (or
the Agent on behalf of the Banks) effecting any material amendment,
modification or waiver of the terms of this Loan Agreement, including without
limitation any such agreement relating to any provision set forth in Article
X, Article XI, Article XII, Article XIII or Article XIV hereof. The Banks
hereby acknowledge and agree that no amendment fee (other than the upfront
fees payable on the Closing Date as described in Section 9.01(j) hereof) shall
be payable pursuant to this Section 16.04 in connection with the amendment of
the Prior Loan Agreement as of the date hereof pursuant to this document. The
provisions of this Section shall survive the termination of this Loan
Agreement.
16.05 With the written consent of the Majority Banks, the Agent and the
Borrowers may, from time to time, enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to this Loan
Agreement, the Notes, the Money Market Notes or any of the other Loan
Documents or changing in any manner the rights of the Banks or of the
Borrowers hereunder or thereunder, and with the consent of the Majority Banks
the Agent on behalf of the Banks may execute and deliver to the Borrowers a
written instrument waiving, on such terms and conditions as the Agent or
Majority Banks may specify in such instrument, any of the requirements of this
Loan Agreement or any other Loan Document or any Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (a) extend the maturity of any Note or Money
Market Note or any installment thereof or of any LC Reimbursement Obligation
or BA Reimbursement Obligation, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof, or change
the amount or terms of any Commitment, or change the amount or time for
payment of any fee required hereunder, or amend, modify or waive any provision
of this Section 16.05 or reduce the percentage specified in the definition of
"Majority Banks" set forth in Section 1.01 hereof, or amend or modify the
definition of "Reference Banks" set forth in Section 1.01 hereof, or amend,
modify or waive any provision of any Loan Document requiring action or
approval by all of the Banks, or waive an Event of Default specified in
Section 14.01(a) hereof, or consent to the assignment or transfer by either
Borrower of any of its rights and obligations under this Loan Agreement, or
release either Borrower from its obligations under this Loan Agreement or
release any Guarantee Subsidiary from its obligations under the Guaranty
Agreement (except as otherwise permitted by such Section 12.01(y)), or amend,
modify or waive any provision of the Loan Documents if such amendment,
modification or waiver would have the effect of releasing any collateral
security (including, without limitation, any guarantee) granted thereby or the
obligations to the Agent and the Banks of the parties thereof (it being
expressly understood and agreed by the Borrowers and the Banks that nothing
set forth in this Section 16.05 shall be deemed to require any further action
or approval of the Banks in connection with the release of collateral
contemplated by Section 16.16 hereof), in each case without the written
consent of all the Banks, or (b) amend, modify or waive any provision of
Article XV hereof without the written consent of the then Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Banks and shall be binding upon the Borrowers, and each of
them, the Banks, the Agent and all future holders of the Notes and the Money
Market Notes. In the case of any waiver of the requirements of this Loan
Agreement, any other Loan Document, the Notes or the Money Market Notes, the
parties thereto shall be restored to their former position and rights
thereunder, and any Event of Default waived shall be deemed to be cured and
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not continuing; but no such waiver shall extend to any subsequent or other
Event of Default, or impair any right consequent thereon.
16.06 Except as otherwise provided for hereunder, interest, fees and
premiums hereunder shall be computed on the basis of a three hundred
sixty-five (365) day year for the actual number of days in the billing period.
16.07 Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent
specified by Section 14.01 hereof to authorize the Agent to declare the Notes,
the Money Market Notes, the LC Reimbursement Obligations and the BA
Reimbursement Obligations due and payable pursuant to the provisions of
Section 14.01 hereof, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing at such Bank to or for the
credit or the account of either of the Borrowers against any and all of the
obligations of the Borrowers now or hereafter existing under this Loan
Agreement or such Note and although such obligations may be unmatured.
16.08 Except as otherwise provided for hereunder with respect to
Eurodollar Loans, should any installment or other payment of the principal of
or interest on the Notes, the Money Market Notes, the LC Reimbursement
Obligations or the BA Reimbursement Obligations become due and payable on
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day thereafter and in the case of an installment of
principal, interest shall be payable thereon at the rate per annum herein
specified during such extension.
16.09 This Loan Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, and
it shall not be necessary in making proof of this Loan Agreement to produce or
account for more than one such counterpart.
16.10 (a) Any Bank may, at any time upon written notice thereof to the
Agent and the Borrowers, transfer or assign all or any portion of the
indebtedness evidenced by the Notes or Money Market Notes held by such Bank
and the Revolving Credit Loan Commitment of such Bank hereunder and the terms
hereof shall extend to any subsequent holder of the Notes or Money Market
Notes; provided, however, that any assignment by a Bank hereunder shall be
subject to the prior written consent of Airgas and the Agent (in either case
not to be unreasonably withheld).
(b) Any Bank may at any time sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Loan Agreement; provided, however, that (1) such Bank's obligations under this
Loan Agreement shall remain unchanged, (2) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (3) each participating bank or other entity shall be entitled to
the benefit of the cost protection provisions contained in Sections 8.04,
8.05, 8.06, 8.08 and 8.09 hereof, except that all claims and petitions for
payment and payments made pursuant to such Sections shall be made through such
selling Bank and except that a participant shall not be entitled to receive
pursuant to such provisions an amount larger than its share of the amount to
which the selling Bank would have been entitled had no such sale been made,
and (iv) the Borrowers, the Agent and the other Banks shall continue to deal
solely and directly with such selling Bank in connection with such Bank's
rights and obligations under this Loan Agreement, and such Bank shall retain
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the sole right (and participating banks or other entities shall have no right)
to enforce the obligations of any Credit Party under the Loan Documents and to
approve any amendment, modification or waiver of any provision of this Loan
Agreement or any of the other Loan Documents (other than amendments,
modifications or waivers requiring, pursuant to the terms of Section 16.05
hereof, unanimous consent of the Lenders).
(c) Any Bank may pledge all or any portion of its rights under this Loan
Agreement, its Notes and/or its Money Market Note to a Federal Reserve Bank.
No such pledge shall release any Bank from its obligations hereunder or
substitute any such Federal Reserve Bank for such Bank as a party hereto.
16.11 The term of this Loan Agreement shall be until the commitments of
the Banks and of the LC Agent to make Extensions of Credit hereunder shall
have terminated and the Banks have received payment in full of the unpaid
principal and interest of the Notes, the Money Market Notes, the LC
Reimbursement Obligations, the BA Reimbursement Obligations and all other
amounts payable hereunder.
16.12 All obligations of the Borrowers hereunder and under the Notes and
the Money Market Notes shall be joint and several obligations of the
Borrowers.
16.13 All documents executed pursuant to the transactions contemplated
herein including without limitation this Loan Agreement, the Notes, the Money
Market Notes and the other Loan Documents shall be deemed to be contracts made
under, and for all purposes shall be construed in accordance with, the
internal laws and judicial decisions of the State of North Carolina. Each of
the Borrowers hereby submits to the nonexclusive jurisdiction and venue of the
state and federal courts of North Carolina for the purpose of resolving
disputes hereunder or under the other Loan Documents or for the purposes of
collection. Each of the Borrowers hereby agrees that both the federal and
state courts in Mecklenburg County, North Carolina are a convenient forum and
agrees not to raise as a defense that such courts are not a convenient forum.
16.14 The payment of the indebtedness of the Borrowers to the Banks
hereunder and under the Notes and the Money Market Notes is senior to the
payment of the indebtedness of the Borrowers under the Senior Subordinated
Note Purchase Agreements and each Note Guaranty (as defined in the Senior
Subordinated Note Purchase Agreements) in accordance with the terms thereof.
16.15 Wherever in this Loan Agreement the conversion of an amount in any
foreign currency into its U.S. currency equivalent is required, such U.S.
currency equivalent amount shall be realized by using the exchange rate for
such foreign currency as set forth in the Wall Street Journal published on the
date on which a computation thereof is required to be made hereunder, or if
the Wall Street Journal is not published on such date of computation, then as
set forth in the most recently published issue of the Wall Street Journal as
of such date.
16.16 Promptly following the Closing Date, each Bank which was a party
to the Prior Loan Agreement shall return to Airgas all promissory notes
delivered to such Bank in connection with the Prior Loan Agreement.
16.17 Nothing contained herein shall be deemed to limit the right of any
Bank (or any of its affiliates) to make loans to, accept deposits from and
generally engage in any kind of business with any Credit Party.
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16.18 The Borrowers hereby agree that all payments and prepayments of
principal, interest and fees required to be made hereunder or under any of the
other Loan Documents shall be without deduction for or on account of any
present or future taxes, duties or other charges levied or imposed by any
foreign nation or any political subdivision or taxing authority thereof.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Sixth
Amended and Restated Loan Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
AIRGAS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
(Signatures Continued)
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NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/Michael A. Crabb, III
_________________________________
Title: Vice President
______________________________
THE BANK OF NEW YORK
By: /s/Michael Flannery
_________________________________
Title: Vice President
______________________________
FIRST FIDELITY BANK, N.A.
By: /s/Carl Goelz
_________________________________
Title: Vice President
______________________________
PHILADELPHIA NATIONAL BANK,
INCORPORATED AS CORESTATES BANK, NA
By: /s/Matthew T. Panarese
_________________________________
Title: Vice President
______________________________
CONTINENTAL BANK
By: /s/Russ Covode
_________________________________
Title: Vice President
______________________________
MERIDIAN BANK
By: /s/David Mills
_________________________________
Title: Vice President
______________________________
(Signatures Continued)
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NBD BANK, N.A.
By: /s/Nancy Russell
_________________________________
Title: Vice President
______________________________
CIBC INC.
By: /s/Paul T. LaHiff, Jr.
_________________________________
Title: Vice President
______________________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/H. Todd Dissinger
_________________________________
Title: Vice President
______________________________
NATIONSBANK OF NORTH CAROLINA, N.A.,
as Agent for the Banks
By: /s/Michael A. Crabb, III
_________________________________
Title: Vice President
______________________________