EX-96
AMENDMENT NO. 1
TO
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO SIXTH AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment"), dated as of November 8, 1994, is by and among
AIRGAS, INC., a Delaware corporation with its principal place of business
in Wilmington, Delaware ("Airgas"); and
AIRGAS HOLDINGS, INC., a Delaware corporation with its principal place of
business in Wilmington, Delaware ("Holdings" - Airgas and Holdings may be
referred to individually herein as a "Borrower" and collectively as the
"Borrowers");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association
("NationsBank");
THE BANK OF NEW YORK, a New York corporation ("BNY");
FIRST FIDELITY BANK, N.A., a national banking association ("Fidelity");
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, NA, a
national banking association ("PNB");
BANK OF AMERICA ILLINOIS, an Illinois state bank ("BANK OF AMERICA");
MERIDIAN BANK, a Pennsylvania state bank ("Meridian");
NBD BANK, N.A., a national banking association ("NBD");
CIBC INC. , a Delaware corporation ("CIBC"); and
PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC" -
hereinafter, NationsBank, BNY, Fidelity, PNB, Bank of America, Meridian, NBD,
CIBC and PNC may be referred to individually as a "Bank" and collectively as
the "Banks"); and
NATIONSBANK NATIONAL BANK OF NORTH CAROLINA, N.A., a national banking
association (in its capacity as agent for the Banks, hereinafter referred to
in such capacity as the "Agent").
W I T N E S S E T H :
WHEREAS, pursuant to a Sixth Amended and Restated Loan Agreement dated as
of August 30, 1994 (the "Existing Loan Agreement") among the Borrowers, the
Banks and the Agent, the Banks have extended commitments to make certain
credit facilities available to the Borrowers; and
WHEREAS, the Borrowers desire to make certain amendments to the Existing
Loan Agreement.
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
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PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless other-
wise defined herein or the context otherwise requires,
terms used in this Amendment, including its preamble
and recitals, have the following meanings (such
meanings to be equally applicable to the singular and
plural forms thereof):
"Amended Loan Agreement" means the
Existing Loan Agreement as amended hereby.
"Amendment Effective Date" is defined in
Subpart 3.1 hereof.
SUBPART 1.2. Other Definitions. Unless otherwise
defined herein or the context otherwise requires, terms
used in this Amendment, including its preamble and
recitals, have the meanings provided in the Amended
Loan Agreement.
PART II
AMENDMENTS TO EXISTING LOAN AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Loan Agreement is hereby amended in accordance with this
Part II. Except as so amended, the Existing Loan Agreement and all other Loan
Documents shall continue in full force and effect.
SUBPART 2.1. Amendments to Section 1.01. The
definition of "Subordinated Debt" set forth in Section 1.01
of the Existing Loan Agreement is hereby amended to read in
its entirety as follows:
"Subordinated Debt" means (i) the indebtedness of
up to $55,000,000.00 incurred by Airgas pursuant to the
terms of the Senior Subordinated Note Purchase
Agreements, the repayment of which is subordinated to
the repayment of the indebtedness of Airgas to the
Banks hereunder on terms described in the Senior
Subordinated Note Purchase Agreements, (ii)
indebtedness incurred by Airgas on substantially the
terms and conditions as provided in the Confidential
Direct Placement Memorandum set forth as Schedule 5
attached hereto and subordinated to the obligations of
the Borrowers and the Guarantee Subsidiaries under the
Loan Documents on terms substantially similar to the
terms of subordination under the Subordinated Note
Purchase Agreements, provided that no Event of Default
specified in Article XIV hereof, nor any event which
upon notice or lapse of time or both, would constitute
such an Event of Default, exists immediately prior to
or would exist immediately after such indebtedness is
incurred, and (iii) additional subordinated
indebtedness incurred by Airgas provided that (A) no
Event of Default specified in Article XIV hereof, nor
any event which upon notice or lapse of time or both,
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would constitute such an Event of Default, exists
immediately prior to or would exist immediately after
such additional subordinated indebtedness is incurred
and (B) all of the terms and conditions of such
additional subordinated indebtedness (including the
terms relating to the subordination of such
indebtedness to the indebtedness of Airgas hereunder)
are consented to by the Majority Banks prior to the
time such indebtedness is incurred; provided, however,
the aggregate outstanding principal balance of all
indebtedness referred to in subsections (i), (ii) and
(iii) of this definition shall not exceed
$105,000,000.00 at any one time;
SUBPART 2.2. Amendments to Section 13.01. Subsection
(a), subsection (g) and subsection (y) of Section 13.01 of
the Existing Loan Agreement are hereby amended to read in
their entireties as follows:
13.01 Each of the Borrowers covenants and agrees
with the Banks and the Agent that, so long as this Loan
Agreement shall remain in effect or any Letter of
Credit or Bankers' Acceptance shall be outstanding or
the principal of or interest on any Note, Money Market
Note, LC Reimbursement Obligation or BA Reimbursement
Obligation or any other expense or amount payable
hereunder remains unpaid, and until the Revolving
Credit Loan Commitments are terminated and the Banks
are no longer obligated to make any Letter of Credit
Term Loans, without the prior written consent of the
Majority Banks, it will not nor will it enter into any
binding agreement to or permit any Subsidiary to:
(a) incur, create, assume or permit to exist any
indebtedness for borrowed money, however evidenced, or
its equivalent, except
(i) the Loans, the Letters of Credit
(and the related LC Reimbursement Obligations), the
Bankers' Acceptances (and the related BA Reimbursement
Obligations) and the Money Market Loans;
(ii) existing indebtedness set forth in
Exhibit Q hereto (and renewals, refinancings
or extensions (but not any increases in the
outstanding principal amount) thereof on
terms and conditions no less favorable to
such Borrower or Subsidiary than the terms
and conditions of such existing
indebtedness);
(iii) indebtedness evidenced by
endorsement of negotiable instruments for
collection and done in the ordinary course of
business;
(iv) the Subordinated Debt;
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(v) unsecured indebtedness incurred in
favor of the sellers of the companies
described in Section 13.01(h)(iv) and (v)
hereof in order to finance the acquisition of
such companies;
(vi) standby letters of credit (other
than standby Letters of Credit issued
pursuant to Section 5.01 hereof) provided
that the full amount available to be drawn
thereunder is at all times backed or secured
by a Letter of Credit issued pursuant to
Section 5.01 hereof;
(vii) indebtedness of Airgas and Holdings of
up to $100,000,000 arising under the Loan
Agreement dated as of November 8, 1994 attached
hereto as Schedule 4; and
(viii) other present or future
indebtedness of Airgas or any of its
Subsidiaries, provided that the aggregate
amount of such indebtedness at any time
outstanding shall not exceed $20,000,000.00;
provided, however, that nothing contained in
this Section 13.01(a) or any other provision
of this Loan Agreement shall prevent any
Credit Party from entering into, as lessee,
any real estate leases (other than
capitalized leases) or operating leases of
equipment in the ordinary course of such
Credit Party's business;
*************
(g) guarantee directly or indirectly the
obligations of any Person except for (i) the guarantee
of a Guarantee Subsidiary (A) pursuant to the Guaranty
Agreement or (B) of any indebtedness permitted under
Section 13.01(a)(vii) hereof, (ii) endorsements of
negotiable instruments in the ordinary course of
business, (iii) the unsecured guarantee by Airgas of
any indebtedness permitted under Section 13.01(a)
hereof and (iv) additional guarantees provided that at
no time shall (A) the sum of (1) the aggregate
outstanding principal amount guaranteed pursuant to all
such guarantees permitted under this clause (iv), plus
(2) the aggregate fair market value of all assets
contributed to the REIT by Airgas and its Subsidiaries
as permitted under Section 13.01(d)(ii) hereof and the
aggregate amount of investments (other than asset
contributions otherwise permitted by Section
13.01(d)(ii) hereof) made in the REIT as permitted
under Section 13.01(h)(vii) hereof, plus (3) the
aggregate outstanding amount of investments permitted
under Section 13.01(h)(vi) hereof, plus (4) the
aggregate outstanding principal amount of loans and
advances permitted under Section 13.01(k)(iii) hereof,
plus (5) the aggregate outstanding amount of
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investments permitted under Section 13.01(m)(ii)
hereof, exceed (B) 20% of Book Net Worth as of the end
of the then immediately preceding fiscal quarter;
*************
(y) cause (i) each of Mauritius Industrial Gases,
Inc. and Airgas Polska sp. z oo at such time as any
such Subsidiary shall have total assets of at least
$3,000,000 and (ii) each other Subsidiary hereafter
acquired by any Credit Party prior to the Maturity Date
(A) to become a Guarantee Subsidiary pursuant to a
Guaranty Joinder Agreement and (B) to deliver to the
Agent such other documentation as the Agent may
reasonably request in connection with the foregoing,
including, without limitation, certified corporate
resolutions and other corporate documents of such
Person and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality,
validity, binding effect and enforceability of the
obligations of such Subsidiary under the Guaranty
Agreement); provided, however, with respect to any such
Subsidiary described above which is a Canadian
Subsidiary (1) such Canadian Subsidiary shall not be
obligated to so guarantee the obligations of the
Borrowers during the 90 day period immediately
succeeding the date of acquisition of such Canadian
Subsidiary and (2) if, subsequent to such Canadian
Subsidiary becoming a Guarantee Subsidiary pursuant to
a Guaranty Joinder Agreement, any Canadian Lender has
agreed to provide financing to such Canadian Subsidiary
to provide for the working capital, capital
expenditure, acquisition costs and/or letter of credit
needs of such Canadian Subsidiary, then, promptly upon
the request of the Borrowers, the Agent (on behalf of
the Banks) shall thereupon release such Canadian
Subsidiary from the Guaranty Agreement.
SUBPART 2.3. Amendments to Section 13A.01. Section
13A.01 of the Existing Loan Agreement is hereby amended to
read in its entirety as follows:
13A.01 The covenants of Airgas (i) contained in
Section 10 of each of the Senior Subordinated Note
Purchase Agreements, as such covenants may be amended
or modified from time to time and (ii) contained in any
documentation evidencing or executed in connection with
any other Subordinated Debt as such documents may be
amended or modified from time to time (collectively,
the "Incorporated Covenants"), are (until termination
of the applicable Subordinated Note Purchase Agreement
or the applicable documentation evidencing or executed
in connection with such other Subordinated Debt, as the
case may be) hereby incorporated herein by reference
and shall be as binding on the Borrowers as if set
forth fully herein.
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SUBPART 2.4. Replacement of Schedule 4. Existing
Schedule 4 to the Existing Loan Agreement is deleted in its
entirety and a new schedule in the form of Schedule 4
attached hereto is added to the Existing Loan Agreement in
replacement therefor and substitution thereof.
SUBPART 2.5. New Schedule 5. A new schedule in the
form of Schedule 5 is added to the Existing Loan Agreement
immediately following existing Schedule 4 attached thereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment Effective Date. This
Amendment shall be and become effective as of the date
hereof (the "Amendment Effective Date") when the Agent
shall have received counterparts of this Amendment,
each of which shall have been duly executed on behalf
of the Borrowers and the Majority Banks.
The Banks hereby acknowledge and agree that no
amendment fee shall be payable pursuant to Section
16.04 of the Existing Credit Agreement in connection
with this Amendment.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in
this Amendment to any Part or Subpart are, unless
otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Loan
Agreement. This Amendment is a Loan Document executed
pursuant to the Existing Loan Agreement and shall
(unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with
the terms and provisions of the Existing Loan
Agreement.
SUBPART 4.3. References in Other Loan Documents.
At such time as this Amendment shall become effective
pursuant to the terms of Subpart 3.1 hereof, all
references in the Loan Documents to the "Loan
Agreement" shall be deemed to refer to the Loan
Agreement as amended by this Amendment.
SUBPART 4.4. Expenses. The Borrowers agree to
pay all reasonable out-of-pocket expenses (including
fees and expenses of counsel) incurred by the Agent in
connection with the preparation, execution and delivery
of this Amendment.
SUBPART 4.5. Counterparts, Effectiveness, Etc.
This Amendment may be executed by the parties hereto in
several counterparts, each of which shall be deemed to
be an original and all of which shall constitute
together but one and the same agreement.
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SUBPART 4.6. Governing Law; Entire Agreement.
THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, each of the parties hereto has caused
this First Amendment to be duly executed by their duly authorized
officers, all as of the day and year first above written.
AIRGAS, INC.
By /s/Britton H. Murdoch
________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By /s/Britton H. Murdoch
________________________________
Britton H. Murdoch
Vice President
(Signatures Continued)
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NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/M. Gregory Seaton
____________________________
Title: Vice President
____________________________
THE BANK OF NEW YORK
By: /s/Michael V. Flannery
____________________________
Title: Vice President
____________________________
FIRST FIDELITY BANK, N.A.
By: /s/Carl Goelz
____________________________
Title: Vice President
____________________________
PHILADELPHIA NATIONAL BANK,
INCORPORATED AS CORESTATES BANK, NA
By: /s/Matthew T. Panarese
____________________________
Title: Vice President
____________________________
BANK OF AMERICA ILLINOIS
By: /s/Nancy J. McGaw
____________________________
Title: Vice President
____________________________
MERIDIAN BANK
By: /s/Patrick B. Trainor
____________________________
Title: Assistant Vice President
____________________________
[Signatures continued]
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NBD BANK, N.A.
By: /s/John W. Fischer, III
____________________________
Title: Senior Vice President
____________________________
CIBC INC.
By: /s/Paul T. LaHiff, Jr.
____________________________
Title: Vice President
____________________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/H. Todd Dissinger
____________________________
Title: Vice President
____________________________
NATIONSBANK OF NORTH CAROLINA,
N.A., as Agent for the Banks
By: /s/M. Gregory Seaton
____________________________
Title: Vice President
____________________________
[Signatures continued]
EX-106
The undersigned, as Guarantee Subsidiaries under the Guaranty
Agreement dated as of August 30, 1994 executed by each of the
undersigned in favor of the Agent and the Banks referred to above for the
benefit of the Borrowers referred to above, hereby acknowledge and consent to
the terms of the foregoing Amendment No. 1 to Sixth Amended and Restated Loan
Agreement.
AIRGAS BREATHING AIR SYSTEMS, INC.
AIRGAS HOLDINGS CANADA LIMITED
AIRGAS INTERNATIONAL, INC.
AIRGAS MANAGEMENT, INC.
AIRGAS NEW ENGLAND REAL ESTATE, INC.
AIRGAS REALTY, INC.
AMERICAN CARBIDE AND CARBON
CORPORATION (d/b/a MIDWEST CARBIDE)
BAY AIRGAS, INC.
CASCADE AIRGAS, INC.
CRYODYNE TECHNOLOGIES, INC.
CYLINDER LEASING CORP.
EMPIRE AIRGAS, INC.
FLORIDA AIRGAS, INC.
G.S. PARSONS, CO.
GREAT LAKES AIRGAS, INC.
GREAT WESTERN AIRGAS, INC.
GULF STATES AIRGAS, INC.
INDUSTRIAL GASES OF WICHITA, INC.
KEYSTONE AIRGAS, INC.
LONE STAR AIRGAS, INC.
MICHIGAN AIRGAS, INC.
MIDAMERICA AIRGAS, INC.
MIDAMERICA HOLDINGS, INC.
MIDWEST AIRGAS, INC.
MOUNTAIN AIRGAS, INC.
NITROUS OXIDE CORP.
NORTHEAST AIRGAS, INC.
NORTHERN GASES, INC.
PACIFIC AIRGAS, INC.
POST AIRGAS, INC.
POTOMAC AIRGAS, INC.
RANGE ARC, INC.
SIERRA AIRGAS, INC.
SOONER AIRGAS, INC.
SOUTHEAST AIRGAS, INC.
SOUTHERN CALIFORNIA AIRGAS, INC.
SPECIALTY PRODUCTS AND EQUIPMENT, INC.
US AIRGAS, INC.
VIRGINIA WELDING SUPPLY CO.
WESTWIND COMPANY
By /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
of each of the Companies listed above
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SCHEDULE 4
[Loan Documents for $100,000,000 Revolving Credit Facility]
EX-108
SCHEDULE 5
[Summary of Terms and Conditions for New Subordinated Debt]