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LOAN AGREEMENT
DATED AS OF NOVEMBER 8, 1994
BY AND AMONG
AIRGAS, INC.
AND
AIRGAS HOLDINGS, INC.
AS BORROWERS,
THE BANKS NAMED HEREIN,
NATIONSBANK OF NORTH CAROLINA, N.A.,
AS STRUCTURING AND DOCUMENTATION AGENT,
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
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Table of Contents
Section Title Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . 1
1.02 Incorporated Definitions. . . . . . . . . . . . . 5
1.03 Accounting Terms. . . . . . . . . . . . . . . . . 6
ARTICLE II LOANS . . . . . . . . . . . . . . . . . . . . . . 6
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . 6
2.02 (a) Minimum Amounts. . . . . . . . . . . . . . . 6
(b) Types of Loans . . . . . . . . . . . . . . . 6
(c) Notice . . . . . . . . . . . . . . . . . . . 7
(d) Limitation on Numbers of
Eurodollar Loans . . . . . . . . . . . . . 7
2.03 Notes . . . . . . . . . . . . . . . . . . . . . . 7
2.04 Loan Interest Rates . . . . . . . . . . . . . . . 8
2.05 (a) Commitment Fee . . . . . . . . . . . . . . . 8
(b) Reduction of Loan Commitments. . . . . . . . 8
ARTICLE III ADDITIONAL PROVISIONS REGARDING LOANS . . . . . . 9
3.01 Additional Interest Rate Provisions . . . . . . . 9
(a) Default Rate . . . . . . . . . . . . . . . . 9
(b) LIBOR Base Rate Unascertainable. . . . . . . 9
3.02 Conversion and Continuation of Loans. . . . . . .10
3.03 Prepayments . . . . . . . . . . . . . . . . . . .11
3.04 Additional Costs. . . . . . . . . . . . . . . . .12
3.05 Changes in Laws or Regulations. . . . . . . . . .14
3.06 Compensations . . . . . . . . . . . . . . . . . .14
3.07 Payments and Prepayments. . . . . . . . . . . . .15
3.08 Capital Adequacy Protection . . . . . . . . . . .15
3.09 Limitation of Liability of Holdings . . . . . . .16
ARTICLE IV CONDITIONS PRECEDENT AS OF CLOSING DATE . . . . .16
4.01 Conditions Precedent to Initial Loans . . . . . .16
ARTICLE V CONDITIONS OF LENDING . . . . . . . . . . . . . .17
5.01 Conditions of Lending . . . . . . . . . . . . . .17
5.02 Commitment Limitation; Reaffirmation. . . . . . .18
ARTICLE VI REPRESENTATIONS AND WARRANTIES. . . . . . . . . .18
6.01 Representations and Warranties. . . . . . . . . .18
(a) Incorporation. . . . . . . . . . . . . . . .18
(b) Power and Authority
to Own Properties and Assets . . . . . . .18
(c) Power and Authority to Execute,
Deliver and Perform the Loan Documents . .18
(d) Loan Documents Valid and Binding
Obligations. . . . . . . . . . . . . . . .18
(e) Execution, Delivery and Performance. . . . .18
(f) Subsidiaries . . . . . . . . . . . . . . . .19
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(g) Interests in Other Persons . . . . . . . . .19
(h) Audited Balance Sheet. . . . . . . . . . . .19
(i) Margin Stock; Regs G, U, T and X . . . . . .19
(j) No Governmental Approvals. . . . . . . . . .19
6.02 Incorporated Representations and Warranties
From Existing Loan Agreement. . . . . . . . . .20
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . . .20
7.01 Covenants . . . . . . . . . . . . . . . . . . . .20
(a) Use of Loan Proceeds . . . . . . . . . . . .20
(b) Indemnification. . . . . . . . . . . . . . .20
(c) Notice of Event of Default . . . . . . . . .21
(d) Agents' Fees . . . . . . . . . . . . . . . .21
(e) Further Assurances . . . . . . . . . . . . .21
(f) New Subsidiaries . . . . . . . . . . . . . .21
7.02 Incorporated Covenants From
Existing Loan Agreements. . . . . . . . . . . .22
7.03 Incorporation of Subordinated Debt Covenants. . .22
ARTICLE VIII EVENTS OF DEFAULT AND ACCELERATION. . . . . . . .23
8.01 Events of Default; Acceleration . . . . . . . . .23
ARTICLE IX THE ADMINISTRATIVE AGENT. . . . . . . . . . . . .24
9.01 Appointment and Authorization . . . . . . . . . .24
9.02 Reliance. . . . . . . . . . . . . . . . . . . . .25
9.03 Responsibilities. . . . . . . . . . . . . . . . .25
9.04 Reliance Upon Communications. . . . . . . . . . .25
9.05 Event of Default. . . . . . . . . . . . . . . . .26
9.06 No Representations. . . . . . . . . . . . . . . .26
9.07 Indemnification . . . . . . . . . . . . . . . . .27
9.08 Dealings with Credit Parties. . . . . . . . . . .27
9.09 Resignation . . . . . . . . . . . . . . . . . . .27
9.10 Agent . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . .28
10.01 Notices . . . . . . . . . . . . . . . . . . . . .28
10.02 Waiver. . . . . . . . . . . . . . . . . . . . . .29
10.03 Survival. . . . . . . . . . . . . . . . . . . . .29
10.04 Costs . . . . . . . . . . . . . . . . . . . . . .29
10.05 Amendments. . . . . . . . . . . . . . . . . . . .29
10.06 Year . . . . . . . . . . . . . . . . . . . . . .30
10.07 Set-Off . . . . . . . . . . . . . . . . . . . . .30
10.08 Payment on Business Day . . . . . . . . . . . . .31
10.09 Counterparts. . . . . . . . . . . . . . . . . . .31
10.10 Assignment. . . . . . . . . . . . . . . . . . . .31
10.11 Term . . . . . . . . . . . . . . . . . . . . . .32
10.12 Joint and Several Obligations of Borrowers. . . .32
10.13 Governing Law; Severability; Merger . . . . . . .32
10.14 Priority of Loans . . . . . . . . . . . . . . . .33
10.15 Dealings by Banks With Credit Parties . . . . . .33
10.16 No Deduction for Foreign Taxes. . . . . . . . . .33
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Exhibits
Exhibit A Bank Commitments
Exhibit B Form of Guaranty Agreement
Exhibit C Form of Guaranty Joinder Agreement
Exhibit D Form of Note
Exhibit E Form of Legal Opinion of Counsel to Borrowers
and Guarantee Subsidiaries
Exhibit F Subsidiaries
Exhibit G Interests in Other Persons
Exhibit H Existing Indebtedness
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of November 8, 1994 (the "Loan Agreement"),
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" - hereinafter
NationsBank and BNY, together with their respective successors and assigns,
may be referred individually as a "Bank" and collectively as the "Banks");
NATIONSBANK OF NORTH CAROLINA, N.A., a national banking association (in
its capacity as structuring and documentation agent, hereinafter referred to
in such capacity as the "Agent"); and
THE BANK OF NEW YORK, a New York corporation (in its capacity as
administrative agent for the Banks, hereinafter referred to in such capacity
as the "Administrative Agent").
RECITALS:
A. The Borrowers have requested that the Banks provide the Borrowers
with a $100,000,000.00 credit facility for the purposes of (i) financing the
acquisition of new Subsidiaries, (ii) financing other investments permitted
under this Loan Agreement and (iii) satisfying capital expenditure and working
capital needs of the Borrowers and the Guarantee Subsidiaries.
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, the Administrative 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 for purposes of calculating
Holdings' Maximum Obligated Amount in respect of any Loan, 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 Loans other than the Loan in respect of which such
calculation is being made;
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"Applicable Margin" means, with respect to any Eurodollar Loan, (i) for
each day of the Interest Period for such Eurodollar Loan occurring during the
period from the Closing Date through and including August 31, 1995, 1/2%, and
(ii) for each day of the Interest Period for such Eurodollar Loan occurring on
and after September 1, 1995, 3/4%;
"Borrowers' Obligations" means, without duplication, the obligations of
the Borrowers to the Banks, the Agent and the Administrative Agent (including
the obligations to pay principal of and interest on the Loans and to pay all
fees and other amounts payable by the Borrowers) hereunder and under the
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;
"Closing Date" means the date as of which this Loan Agreement is executed
by the Borrowers, the Banks, the Agent and the Administrative Agent and all of
the conditions precedent set forth in Article IV hereof have been satisfied;
"Commitment", for each Bank, means the commitment of such Bank to make
Loans in a maximum principal amount equal to the amount set forth beside the
name of such Bank on Exhibit A hereto, as the same may be reduced from time to
time in accordance with the terms of Section 2.05(b) hereof;
"Commitment Fee" has the meaning assigned to such term in Section 2.05(a)
hereof;
"Credit Party" means any of the Borrowers and the Guarantee Subsidiaries;
"Eurodollar Loan" means a Loan bearing interest based on the LIBOR Base
Rate;
"Event of Default" has the meaning given to said term in Section 8.01
hereof;
"Existing Loan Agreement" means that certain Sixth Amended and Restated
Loan Agreement dated as of August 30, 1994, as amended as of the date hereof,
by and among the Borrowers, the banks parties thereto and NationsBank, as
agent for such banks;
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions, with members of the Federal
Reserve System only, arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Administrative Agent);
"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;
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"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 Loan (or portion
thereof) which is used (or the proceeds of which are used) to make a Valuable
Transfer, the outstanding amount of such Loan (or such portion thereof) as of
such date, plus (ii) with respect to each Loan (or portion thereof) which is
not used (or the proceeds of which are not used) to make a Valuable Transfer,
the lesser of (a) the outstanding amount of such Loan (or such portion
thereof) as of such date of determination or (b) the greater of (1) 95% of the
Adjusted Net Worth at the time of such Loan or (2) 95% of the Adjusted Net
Worth as of such date;
"Incorporated Covenants" has the meaning assigned to such term in Section
7.02 hereof;
"Incorporated Definitions" has the meaning assigned to such term in
Section 1.02 hereof;
"Incorporated Events of Default" has the meaning assigned to such term in
Section 8.01(e) hereof;
"Incorporated Representations and Warranties" has the meaning assigned to
such term in Section 6.01 hereof;
"Interest Payment Date" means, (i) as to any Eurodollar Loan having an
Interest Period of 1, 2 or 3 months, the last day of such Interest Period,
(ii) as to any Eurodollar Loan having an Interest Period longer than 3 months,
the last day of June, September, December and March in each year and the last
day of such Interest Period, and (iii) as to any Prime Loan, the last day of
March,
June, September and December in each year. If any Interest Payment Date falls
on a day which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day (unless the same would fall in a
succeeding month, in which case such Interest Payment Date shall be deemed to
be the first preceding Business Day);
"Interest Period" means, as to any Eurodollar Loan, the period commencing
on the date of such Eurodollar Loan and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the Borrowers may
elect; provided, however, that (i) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day, and (ii) no Interest Period
shall end later than the Termination Date;
"LIBOR Base Rate" means the rate at which deposits in the requested
aggregate amount and maturity are offered to BNY 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" means a loan made pursuant to Sections 2.01 and 2.02 hereof;
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"Loan Documents" means this Loan Agreement, the Notes and the Guaranty
Agreement (together with any Guaranty Joinder Agreement);
"Majority Banks" means, at any time, (i) the holders of at least 67% of
the aggregate unpaid principal amount of the Notes at such time, or (ii) if no
amounts are outstanding under any of the Notes, Banks having at least 67% of
the aggregate amount of the Commitments at such time;
"Note" or "Notes" means a promissory note or promissory notes, as the
case may be, of the Borrowers, executed and delivered as provided in Section
2.03 hereof;
"Prime Loan" means a Loan bearing interest based on the Prime Rate;
"Prime Rate" means the rate of interest per annum as announced publicly
in New York City by BNY as its prime commercial lending rate in effect from
time to time, which is not necessarily the best or lowest rate of interest
offered by BNY to its customers;
"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 VIII hereof, nor any
event which upon notice or lapse of time or both, would constitute such an
Event of Default, exists immediately prior to or would exist immediately after
such indebtedness is incurred, and (iii) additional subordinated indebtedness
incurred by Airgas provided that (A) no Event of Default specified in Article
VIII hereof, nor any event which upon notice or lapse of time or both, would
constitute such an Event of Default, exists immediately prior to or would
exist immediately after such additional subordinated indebtedness is incurred
and (B) all of the terms and conditions of such additional subordinated
indebtedness (including the terms relating to the subordination of such
indebtedness to the indebtedness of 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;
"Termination Date" means July 1, 1996;
"Unutilized Commitments" means, at any time, the excess of (i) the
aggregate Commitments at such time over (ii) the aggregate outstanding
principal balance of the Loans at such time; and
"Valuable Transfer" means (i) all loans, advances or capital
contributions made to or for the benefit of Holdings with any Loan (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 Loan (or with any proceeds thereof), (iii) the fair market
value of all property acquired with any Loan (or with any proceeds thereof)
and transferred, absolutely and not as collateral, to Holdings and (iv) all
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equity securities of Holdings acquired from Holdings with any Loan (or with
any proceeds thereof).
1.02 All capitalized terms not otherwise defined herein shall have the
respective meanings assigned to such terms in the Existing Loan Agreement, as
in effect as of the date hereof (the "Incorporated Definitions"). The
incorporation by reference to the Existing Loan Agreement of the Incorporated
Definitions pursuant to this Section 1.02 shall survive the termination of the
Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Definitions pursuant to this Section 1.02, all references in the
Incorporated Definitions to the "Agent" shall be deemed to refer to the
Administrative Agent hereunder, all references in the Incorporated Definitions
to a "Bank" or the "Banks" shall be deemed to refer to one or more of the
Banks hereunder, all references in the Incorporated Definitions to the
"Majority Banks" shall be deemed to refer to the Majority Banks hereunder, all
references in the Incorporated Definitions to a "Guarantee Subsidiary" or the
"Guarantee Subsidiaries" shall be deemed to refer to one or more of the
Guarantee Subsidiaries hereunder, all references in the Incorporated
Definitions to the "Loan Agreement," or any similar references, shall be
deemed to refer to this Loan Agreement, all references in the Incorporated
Definitions to a "Note" or the "Notes" shall be deemed to refer to one or more
of the Notes issued pursuant to Section 2.03 hereof and all references in the
Incorporated Definitions to a "Loan Document" or the "Loan Documents," or any
similar references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01 hereof.
1.03 All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
ARTICLE II
Revolving Loans
2.01 Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Bank, severally and not
jointly, agrees to make Loans to the 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 Commitment; provided that, at no time shall
the aggregate principal balance of all outstanding Loans made by all of the
Banks exceed the aggregate Commitments of all of the Banks. The 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 Loans made by the Banks on any one date shall be in a
minimum aggregate principal amount of $1,500,000.00 or in an integral multiple
of $100,000.00 in excess thereof. Loans shall be made ratably from the Banks
in accordance with their respective Commitments; provided, however, that the
failure of any Bank to make its Loan shall not in itself relieve any other
Bank of its obligation to lend hereunder. The initial Loan by each Bank shall
be made against delivery to such Bank of an appropriate Note, payable to the
order of such Bank, as referred to in Section 2.03 hereof. In the event any
Bank shall fail to make a Loan to the Borrowers in accordance with the terms
hereof, any other Bank may, but shall not be obligated to, make such Loan to
the Borrowers.
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(b) Each Loan shall be either 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 3.02 hereof, Loans of more than one type may be
outstanding at the same time.
(c) The Borrowers shall give the Administrative Agent prior written,
telefax or telephonic notice, no later than the Business Day of the proposed
borrowing in the case of a Prime 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 Administrative Agent not
later than 10:00 a.m. (or 11:00 a.m. with respect to a Eurodollar Loan), New
York City time, on the Business Day specified for a borrowing consisting of a
Prime Loan and on the third Business Day prior to the date specified for a
borrowing consisting of a Eurodollar Loan. Such notice shall specify whether
the Loan then being requested is to be (or what portion or portions thereof
are to be) a Prime Loan or a Eurodollar Loan and, if such Loan or any portion
or portions thereof is to be a Eurodollar Loan, the Interest Period with
respect thereto. If no election is specified in such notice, such Loan (or
the portion thereof as to which no election is specified) shall be a Prime
Loan. The Administrative 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 Bank of
New York ABA No. 021-0000-18 Agency Function Administration Account No.
8900065508 reference: Airgas, Inc., no later than 3:00 p.m., New York City
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 Eurodollar Loan which, if made, would result in an
aggregate of more than nine (9) separate Eurodollar Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, (i)
Eurodollar Loans made ratably by the Banks pursuant to a discrete borrowing,
conversion or continuation request shall be considered a single Loan and (ii)
Eurodollar Loans having different Interest Periods, regardless of whether they
commence or expire on the same date, shall be considered separate Loans. The
Borrowers may continue any Eurodollar Loan, or convert all or any part of any
Prime Loans or Eurodollar Loans into Loans of another type, in accordance with
Section 3.02 hereof and subject to the limitations set forth therein.
2.03 The Loans by each Bank shall be evidenced by a Note duly executed
on behalf of each of the Borrowers, dated the date hereof, in substantially
the form of Exhibit D attached hereto, payable to the order of such Bank in a
principal amount equal to the Commitment of such Bank. Each Note shall bear
interest from its date on the outstanding principal balance thereof as set
forth in Section 2.04 hereof. The aggregate unpaid principal amount of the
Loans of each Bank at any time shall be the principal amount owing on the Note
of such Bank at such time. The principal amount of each Loan, as evidenced by
a Note, shall be due and payable on the Termination Date. All accrued and
unpaid interest on the outstanding principal balance of each Note shall be
payable as provided in Section 2.04 and Section 3.03(c) hereof; provided that,
if any such day is not a Business Day, such interest shall be payable on the
next succeeding Business Day (unless, in case of a Eurodollar Loan, the same
would fall in a succeeding month, in which case such principal shall be
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payable on the first preceding Business Day). All payments under the Notes
shall be made in accordance with Section 3.07 hereof.
2.04 (a) Subject to the provisions of Section 3.01 hereof, each Prime
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 Loan quarterly on each Interest
Payment Date, commencing with the first of such dates to occur after the date
of such Prime Loan, and on the Termination Date or the date of conversion of
such Prime Loan to a Eurodollar Loan.
(b) Subject to the provisions of Section 3.01 hereof, each Eurodollar
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the LIBOR Base
Rate plus the Applicable Margin. Interest shall be payable on each Eurodollar
Loan on each applicable Interest Payment Date, and on the Termination Date,
the date of conversion of such Eurodollar Loan to a Prime Loan or the date of
continuation of such Eurodollar Loan for a subsequent Interest Period. The
Administrative 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 Administrative Agent (without offset or counterclaim),
for the account of the Banks, in consideration of the Commitments hereunder,
on the last day of each June, September, December and March, commencing with
the first such date after the date hereof, and on the date of any reduction or
termination of the Commitments of the Banks hereunder, a commitment fee
(hereinafter called for the purpose of this Section 2.05(a) the "Commitment
Fee") of 1/5% per annum (computed on the basis of the actual number of days
elapsed in a year of 365 days) on the average daily Unutilized Commitments
during the preceding period or quarter. The Commitment Fee shall commence to
accrue as of the date hereof and shall cease to accrue on the earlier of the
Termination Date or the date of termination of the Commitments of the Banks
hereunder.
(b) (i) The Borrowers may in full permanently terminate, or from time
to time in part permanently reduce, the Commitments, in each case upon at
least three Business Days' prior written, telefax or telephonic notice to the
Administrative Agent. Each partial reduction of the Commitments shall be in
an aggregate principal amount of $5,000,000.00 or in an integral multiple of
$1,000,000.00 in excess thereof. The Administrative Agent shall promptly on
the same day provide the Banks notice that it has received notice from
the Borrowers pursuant to this subparagraph.
(ii) In the case of any termination or reduction of the Commitments
pursuant to subparagraph (i) above, immediately after giving effect to such
termination or reduction the aggregate principal balance of all outstanding
Loans made by all of the Banks shall not exceed the aggregate Commitments of
all of the Banks. Each reduction in the aggregate Commitments pursuant to
subparagraph (i) above shall be made ratably among the Banks in accordance
with each Bank's Commitment.
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ARTICLE III
Additional Provisions Regarding
Loans
3.01 (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, 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 Administrative Agent to
be 2% per annum plus the rate which would otherwise be
payable under Section 2.04 hereof; and
(ii) in the case of any other amount payable
hereunder or under any of the other Loan Documents (other
than amounts referred to in clause (i) above), at a rate
equal to 2% per annum plus the 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 to such Bank of making or maintaining
the principal amount of such Eurodollar Loan during such Interest Period, or
reasonable means do not exist for ascertaining the LIBOR Base Rate for such
Eurodollar Loan for such Interest Period, such Bank shall, as soon as
practicable thereafter, give written, telefax or telephonic notice of such
determination to the Borrowers and to the Administrative Agent and each other
Bank, and, until the circumstances giving rise to such notice no longer exist,
any request by the Borrowers for a Eurodollar Loan or for conversion to or
continuation of a Eurodollar Loan pursuant to Section 2.02 or 3.02 hereof
shall be deemed a request for a Prime Loan. Each determination by any of the
Banks hereunder shall be conclusive absent manifest error.
3.02 The Borrowers shall have the right, at any time, upon prior
written, telefax or telephonic notice to the Administrative Agent (which
notice shall be irrevocable and, to be effective, must be received by the
Administrative Agent not later than 11:00 a.m., New York City time, in the
case of Prime Loans, on the Business Day of any conversion, and in the case of
Eurodollar Loans, on the third Business Day preceding the date of any
continuation or conversion), (i) to continue any Eurodollar Loan or portion
thereof into a subsequent Interest Period and (ii) to convert any Loan or
portion thereof into a Loan of a different type, subject to the following:
(a) no Event of Default shall have occurred and be
continuing at the time of such continuation or
conversion, and the representations and warranties set
forth in Article VI hereof shall be true and correct in
all material respects on and as of the date of such
continuation or conversion with the same effect as though
such representations and warranties had been made on and
as of such date, except to the extent that such
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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;
(c) in the case of a continuation or conversion of
less than all Loans, the aggregate principal amount of
Loans continued or converted shall not be less than
$1,500,000.00 or shall be in an integral multiple of
$100,000.00 in excess thereof;
(d) each conversion or continuation shall be
effected by each Bank by applying the proceeds of the new
Prime Loan or Eurodollar Loan, as the case may be, to the
Loan (or portion thereof) being converted or continued,
and accrued interest on the Loan (or portion thereof)
being converted or continued shall be paid by the
Borrowers at the time of conversion or continuation, as
the case may be;
(e) if the new Loan made in respect of a conversion
or continuation shall be a Eurodollar Loan, the first
Interest Period with respect thereto shall commence on
the date of conversion or continuation, as the case may
be;
(f) no Interest Period shall be selected by the
Borrowers for a Loan converted to or continued as a
Eurodollar 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
pursuant to the terms of Section 3.01(b) or 3.05 hereof;
(g) a Eurodollar Loan may be converted to a Prime
Loan or continued as a Eurodollar Loan for a subsequent
Interest Period only on the last day of the Interest
Period therefor;
(h) each request for a conversion to or
continuation of a Eurodollar Loan which shall fail to
state an applicable Interest Period shall be deemed to be
a request for a Eurodollar Loan having an Interest Period
of one (1) month duration; and
(i) no more than nine (9) separate Eurodollar Loans
shall be outstanding hereunder at any one time (it being
understood that, for purposes of the foregoing,
(i) Eurodollar Loans made ratably by the Banks pursuant
to a discrete borrowing, conversion or continuation
request shall be considered a single Loan and (ii)
Eurodollar Loans having different Interest Periods,
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regardless of whether they commence or expire on the same
date, shall be considered separate Loans).
In the event that the Borrowers shall not give notice to continue any
Eurodollar Loan into a subsequent Interest Period or convert any such Loan
into a Prime Loan, such Eurodollar Loan (unless repaid) shall automatically
become a Prime Loan at the expiration of the then current Interest Period
therefor.
3.03 (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
Administrative Agent no later than 10:00 a.m., New York City 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 or
telephonic notice to the Administrative 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 Eurodollar Loan shall be permitted unless
accompanied by payment of amounts specified in Section 3.06 hereof.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Loan by the amount stated therein. All prepayments
under this Section shall be shared pro rata by the Banks and shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment. Amounts prepaid under the Notes pursuant to this Section
prior to the Termination Date shall be available to be reborrowed from the
Banks under this Loan Agreement in accordance with the terms hereof.
3.04 (a) The cost to any Bank of making or maintaining any Eurodollar
Loans or of maintaining its Commitment may fluctuate as a result of imposition
hereafter of, or changes hereafter in, the reserve requirements promulgated by
the Board of Governors of the Federal Reserve System of the United States.
Accordingly, the 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
3.04(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:
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(i) subject any Bank to any tax with respect to any
Eurodollar Loan (other than any tax on the overall net
income of such Bank imposed by the United States of
America or by the jurisdiction in which such Bank has its
principal office or political subdivision or taxing
authority therein); or
(ii) change the basis of taxation of any payment to
any Bank of principal of or interest on any Eurodollar
Loan or fees and other amounts payable hereunder, or any
combination of the foregoing; or
(iii) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held
by, deposits with or for the account of or loans or
commitments by an office of such Bank as it relates to
Eurodollar Loans or the Commitment of such Bank; or
(iv) impose upon such Bank any other condition with
respect to this Loan Agreement as it relates to
Eurodollar Loans or the Commitment of such Bank;
and the result of any of the foregoing shall be to increase the cost to such
Bank of making or maintaining any Eurodollar Loan or of maintaining its
Commitment or to reduce the amount of any payment (whether of principal,
interest or otherwise) received or receivable by such Bank, or to require such
Bank to make any payment in connection with any Eurodollar Loan by or in an
amount which such Bank in its sole reasonable judgment shall deem material,
then and in each such case the 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 3.04(b) with
respect to any Eurodollar Loan, the Borrowers may, at their option and upon
written notice to the Banks, elect to convert such Eurodollar 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 3.06 hereof, it being understood that (A) for purposes
of Sections 3.02 and 3.03 hereof, such Prime Loan, until the expiration of the
Interest Period of the Eurodollar Loan so converted into a Prime Loan, shall
be subject to prepayment or conversion or continuation only at such times and
on such conditions as the Eurodollar Loan from which it was converted and (B)
upon such increased costs being eliminated, or reduced by an amount deemed
sufficient by the Borrowers, such Prime Loan may be reconverted into a
Eurodollar Loan having an Interest Period expiring on the same date as the
Eurodollar Loan previously converted into such 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 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 Administrative Agent. Each Bank
agrees that it will promptly refund any amounts received by it pursuant to
this Section 3.04(b) that were erroneously billed to the Borrowers together
with interest thereon at the Federal Funds
Rate. The provisions of this subsection shall survive termination of this
Loan Agreement.
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(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, such Bank will promptly refund any amount erroneously billed to
the Borrowers together with interest thereon at the Federal Funds Rate.
3.05 (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 3.07 hereof but subject to the
provisions of Section 3.06 hereof).
(b) For purposes of this Section 3.05, a notice to the 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.
3.06 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 required or permitted by
any other provision of this Loan Agreement if such Eurodollar Loan is prepaid
or converted other than on the last day of any Interest Period for such
Eurodollar Loan or upon any failure by the Borrowers to borrow or convert or
continue any Eurodollar Loan. Determinations by any Bank under this Section
3.06 shall be conclusive absent manifest error. The provisions of this
Section shall remain operative and in full force and effect regardless of the
expiration of this Loan Agreement.
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3.07 All payments and prepayments of principal, interest and fees (other
than the fees payable to the Administrative Agent or the Agent pursuant to
Section 7.01(d) hereof), subject to distinctions in the interest rates
applicable to any Loans as a consequence of the application of Section 3.04(b)
or Section 3.05 hereof, shall be made pro rata among the Banks in accordance
with the then outstanding principal amount of the Notes (or in accordance with
the Commitments if there are no amounts then outstanding under the Notes).
All payments by the Borrowers hereunder and under the Notes shall be made to
the Administrative Agent at its offices at New York City, for the account of
each Bank in dollars in Federal or other immediately available funds by 11:00
a.m. New York City time, on the date on which such payment shall be due. All
payments received by the Administrative Agent for the account of a Bank shall
be promptly on the same day remitted by the Administrative Agent to such Bank.
Upon receipt by a Bank of more than its pro rata share of any such payment,
whether voluntary or involuntary, it is hereby agreed among the Banks and the
Borrowers that the Bank receiving such excess payment (the "Receiving Bank")
shall be obligated to pay to the other Banks for application to the
obligations owing to such Bank hereunder, under such Bank's Note and under the
other Loan Documents an amount necessary to reduce the outstanding balances on
such obligations owing to such Bank to the balances that would be outstanding
on such obligations owing to such Bank if the Receiving Bank had not received
more than its pro rata share of such payment; provided, however, that in the
event any amount paid by any Receiving Bank to any other Bank pursuant to the
immediately preceding sentence is rescinded or must otherwise be returned by
the Receiving Bank, each other Bank shall, upon request of the Receiving Bank,
repay to the Receiving Bank the amount so paid by the Receiving Bank to such
Bank, with interbank compensation representing interest and adjustment penalty
for the period commencing on date such payment is returned by the Receiving
Bank until the date the Receiving Bank receives such repayment at the Federal
Funds Rate. Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan to but excluding the date on which such Loan
is paid in full.
3.08 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 increased costs
EX-126
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
3.08 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 3.08 shall remain
operative and in full force and effect regardless of the expiration of this
Loan Agreement.
3.09 Notwithstanding any other provision to the contrary contained in
this Loan Agreement or the 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 8.01 hereof with respect to the
Borrowers' Obligations.
ARTICLE IV
Conditions Precedent as of Closing Date
4.01 The obligations as of the Closing Date of the Banks to make any
Loans are subject to the conditions precedent that the Administrative Agent
shall have received on or before such day the following, in form and substance
satisfactory to the Administrative Agent:
(a) fully executed copies of this Loan Agreement
(including exhibits) and the 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, authorizing the execution, delivery and performance of
the documents described in subparagraphs (a) and (b) above to
be executed by each such Credit Party;
(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 Airgas Breathing Air
Systems, Inc. and Post Airgas, Inc. 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
NationsBank in its capacity as agent under the Existing Loan
Agreement (and/or any prior agreement restated by the Existing
Loan Agreement) have not been amended since August 30, 1994
and through the Closing Date except as provided therein;
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(f) certificates of good standing for each of Airgas
Breathing Air Systems, Inc. and Post Airgas, Inc., 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 E hereto; and
(h) such other information and documents as the
Administrative Agent may reasonably request.
ARTICLE V
Conditions of Lending
5.01 The obligations of the Banks to make any Loans are subject to the
satisfaction of the conditions precedent set forth in Article IV hereof on the
Closing Date and to the satisfaction of the following further conditions:
(a) proper notice of such Loan shall have been
given in accordance with Section 2.02(c) hereof;
(b) the representations and warranties of the
Credite Parties set forth in Article VI hereof and in the
other Loan Documents shall be true and correct in all
material respects on and as of the date of such Loan with
the same effect as though such representations and
warranties had been made on and as of such date, except
to the extent that such representations and warranties
expressly relate to an earlier date;
(c) at the time of and immediately after giving
effect to each such Loan, no Event of Default, or any
event which upon notice or lapse of time or both would
constitute an Event of Default, shall have occurred and
be continuing; and
(d) at the time of and immediately after giving effect
to such Loan, the aggregate principal balance of all
outstanding Loans made by all of the Banks shall not exceed
the aggregate Commitments of all of the Banks.
5.02 Each borrowing hereunder shall be deemed to be a representation and
warranty by each of the Borrowers on the date of such borrowing as to the
matters specified in Sections 5.01(b), (c) and (d) hereof.
ARTICLE VI
Representations and Warranties
6.01 Each of the Borrowers represents and warrants that:
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(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; and
(iv) do not and will not result in the creation of
any lien on any assets of any Credit Party;
(f) all of the direct and indirect Subsidiaries of Airgas as of the
Closing Date are set forth in Exhibit F attached hereto;
(g) except as set forth in Exhibit G attached hereto, as of the Closing
Date neither Airgas nor any of its Subsidiaries owns any interest in any
Person;
(h) the audited consolidated balance sheet, income statement and
statement of cash flows of Airgas and its Subsidiaries prepared as of June 30,
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
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the operations of Airgas and its Subsidiaries taken as a whole;
(i) 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 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 Administrative 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; and
(j) 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.
6.02 Each of the Borrowers hereby agrees that the representations and
warranties contained in Article XI (other than any of the representations and
warranties set forth in Section 11.01(a), (b), (c), (d), (e), (g), (h), (i),
(m) or (u)) of the Existing Loan Agreement, as in effect as of the date hereof
(the "Incorporated Representations"), are hereby incorporated by reference and
shall be as binding on the Borrowers as if set forth fully herein. The
incorporation by reference to the Existing Loan Agreement of the Incorporated
Representations pursuant to this Section 6.02 shall survive the termination of
the Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Representations pursuant to this Section 6.02, all references in
the Incorporated Representations to the "Agent" shall be deemed to refer to
the Administrative Agent hereunder, all references in the Incorporated
Representations to a "Bank" or the "Banks" shall be deemed to refer to one or
more of the Banks hereunder, all references in the Incorporated
Representations to the "Majority Banks" shall be deemed to refer to the
Majority Banks hereunder, all references in the Incorporated Representations
to a "Guarantee Subsidiary" or the "Guarantee Subsidiaries" shall be deemed to
refer to one or more of the Guarantee Subsidiaries hereunder, all references
in the Incorporated Representations to the "Loan Agreement," or any similar
references, shall be deemed to refer to this Loan Agreement, all references in
the Incorporated Representations to a "Note" or the "Notes" shall be deemed to
refer to one or more of the Notes issued pursuant to Section 2.03 hereof
and all references in the Incorporated Representations to a "Loan Document" or
the "Loan Documents," or any similar references, shall be deemed to refer to
one or more of the Loan Documents as defined in Section 1.01 hereof.
ARTICLE VII
Covenants
7.01 Each of the Borrowers covenants and agrees with the Banks, the
Agent and the Administrative Agent that, so long as this Loan Agreement shall
remain in effect or the principal of or interest on any Note or any other
expense or amount payable hereunder remains unpaid, and until the Commitments
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are terminated, unless the Majority Banks shall otherwise consent in writing,
it will and will cause each of its Subsidiaries to:
(a) use the proceeds of the Loans for the purposes set forth in RECITAL
A hereof;
(b) defend, indemnify and hold harmless the Banks, the Administrative
Agent, their employees, agents, officers, affiliates and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses (including without limitation
attorney and consultant fees, court costs and litigation expenses) of whatever
kind or nature, known or unknown, contingent or otherwise, arising out of or
in any way related to any acquisition permitted by, and/or financed with the
proceeds of any borrowings made pursuant to, this Loan Agreement, including,
without limitation, all claims of the seller or sellers of any acquired
company;
(c) 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;
(d) pay (i) to the Administrative Agent the fees set forth, and at the
times specified, in the letter agreement of even date herewith between BNY and
the Borrowers and (ii) to the Agent the fees set forth, and at the times
specified, in the letter agreement of even date herewith between NationsBank
and the Borrowers;
(e) 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
(f) cause (i) each of Mauritius Industrial Gases, Inc., Poligaz, S.A.
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 Termination Date (A) to become a
Guarantee Subsidiary pursuant to a Guaranty Joinder Agreement and (B) to
deliver to the Administrative Agent such other documentation as the
Administrative 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 Administrative Agent (on behalf of the Banks)
shall thereupon release such Canadian Subsidiary from the Guaranty Agreement.
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The provisions of subsection (b) of this Section 7.01 shall remain operative
and in full force and effect regardless of the expiration of this Loan
Agreement, notwithstanding anything to the contrary set forth in this Loan
Agreement or any other of the Loan Documents.
7.02 Each of the Borrowers hereby agrees that the affirmative and
negative covenants contained in Articles XII and XIII of the Existing Loan
Agreement, as in effect as of the date hereof (the "Incorporated Covenants"),
are hereby incorporated by reference and shall be as binding on the Borrowers
as if set forth fully herein, except that, for purposes hereof, Exhibit Q to
the Existing Loan Agreement referred to in Section 13.01(a)(ii) of the
Existing Loan Agreement shall be deemed to refer to Exhibit H attached hereto.
The incorporation by reference to the Existing Loan Agreement of the
Incorporated Covenants pursuant to this Section 7.02 shall survive the
termination of the Existing Loan Agreement. For purposes of the incorporation
of the Incorporated Covenants pursuant to this Section 7.02, all references in
the Incorporated Covenants to the "Agent" shall be deemed to refer to the
Administrative Agent hereunder, all references in the Incorporated Covenants
to a "Bank" or the "Banks" shall be deemed to refer to one or more of the
Banks hereunder, all references in the Incorporated Covenants to the "Majority
Banks" shall be deemed to refer to the Majority Banks hereunder, all
references in the Incorporated Covenants to a "Guarantee Subsidiary" or the
"Guarantee Subsidiaries" shall be deemed to refer to one or more of the
Guarantee Subsidiaries hereunder, all references in the Incorporated Covenants
to the "Loan Agreement," or any similar reference, shall be deemed to refer to
this Loan Agreement, all references in the Incorporated Covenants to a "Note"
or the "Notes" shall be deemed to refer to one or more of the Notes issued
pursuant to Section 2.03 hereof and all references in the Incorporated
Covenants to a "Loan Document" or the "Loan Documents," or any similar
reference, shall be deemed to refer to one or more of the Loan Documents as
defined in Section 1.01 hereof.
7.03 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, 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.
ARTICLE VIII
Events of Default and Acceleration
8.01 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;
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(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 7.02 or Section 7.03
hereof) or the other Loan Documents within 30 days after the earlier to occur
of (i) written notice from the Administrative Agent specifying the default and
requesting that it be remedied; or (ii) an Executive Officer of Airgas becomes
aware of such violation;
(c) any representation or warranty made by the Credit Parties, or any of
them, herein (including without limitation any representation or warranty
incorporated herein by reference pursuant to Section 6.02 hereof) or in any of
the other Loan Documents or in any certificate, statement or report heretofore
or hereafter made (or deemed made pursuant to Article V hereof) shall be
untrue in any material respect when made (or deemed made);
(d) an event of default shall occur under any of the other Loan
Documents; or
(e) the occurrence of an "Event of Default" under and as defined in the
Existing Loan Agreement, as in effect as of the date hereof, which "Events of
Default" (the "Incorporated Events of Default"), are hereby incorporated
herein by reference and shall be as binding on the Borrowers as if set forth
fully herein, such incorporation by reference to survive termination of the
Existing Loan Agreement. For purposes of the incorporation of the
Incorporated Events of Default pursuant to this Section 8.01(e), all
references in the Incorporated Events of Default to the "Agent" shall be
deemed to refer to the Administrative Agent hereunder, all references in the
Incorporated Events of Default to a "Bank" or the "Banks" shall be deemed to
refer to one or more of the Banks hereunder, all references in the
Incorporated Events of Default to the "Majority Banks" shall be deemed to
refer to the Majority Banks hereunder, all references in the Incorporated
Events of Default to a "Guarantee Subsidiary" or the "Guarantee Subsidiaries"
shall be deemed to refer to one or more of the Guarantee Subsidiaries
hereunder, all references in the Incorporated Events of Default to the "Loan
Agreement," or any similar references, shall be deemed to refer to this Loan
Agreement, all references in the Incorporated Events of Default to a "Note" or
the "Notes" shall be deemed to refer to one or more of the Notes issued
pursuant to Section 2.03 hereof and all references in the Incorporated Events
of Default to a "Loan Document" or the "Loan Documents," or any similar
references, shall be deemed to refer to one or more of the Loan
Documents as defined in Section 1.01 hereof;
then, during the continuance of any such event (other than an event described
in Section 14.01(d) of the Incorporated Events of Default), the Administrative
Agent may and shall upon request of any Bank with respect to an event
described in subparagraph (a) above or upon the request of the Majority Banks
with respect to any other Event of Default (other than an event described in
Section 14.01(d) of the Incorporated Events of Default), 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
hereunder; (ii) declare the Notes and all fees and other amounts payable
hereunder to be forthwith due and payable, whereupon the Notes, both as
toprincipal 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 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
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Section 14.01(d) of the Incorporated Events of Default, the Commitments of all
the Banks hereunder shall automatically terminate and the Notes, both as to
principal and interest, and all fees and other amounts payable hereunder,
shall automatically become due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by each of the Borrowers, anything contained herein or in the Notes to the
contrary notwithstanding, and the Administrative Agent may pursue any other
remedy under this Loan Agreement or any other Loan Document or otherwise.
ARTICLE IX
The Administrative Agent
9.01 Each Bank hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Bank under this Loan
Agreement and the other Loan Documents, and each Bank hereby irrevocably
authorizes the Administrative 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 Administrative 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
Administrative 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 Administrative Agent.
9.02 The Administrative 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 Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.03 Neither the Administrative 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 Administrative Agent under
or in connection with, the Loan Documents or the enforceability or sufficiency
of any of the Loan Documents, or for any failure of any Credit Party to
perform its obligations hereunder or thereunder. The Administrative 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.
9.04 The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been given, signed, sent
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or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the credit Parties),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative 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 Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any of
the Loan Documents in accordance with a request of the Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks and all future holders of the Notes.
9.05 The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default (or of any event or condition
which, upon notice or lapse of time, or both, would constitute such an Event
of Default) unless the Administrative Agent has received notice from a Bank or
a Credit Party referring to the applicable Loan Document and describing such
Event of Default (or other such event or condition). In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Event of Default (or other event or condition) as
shall be directed in accordance with Section 8.01 or Section 10.05 hereof;
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Event of Default (or other event or condition) as it shall deem advisable in
the best interests of the Banks.
9.06 Each Bank expressly acknowledges that neither the Administrative
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 Administrative 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 Administrative Agent to any
Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative 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 Administrative 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
Administrative Agent hereunder, the Administrative 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
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possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.07 The Banks agree to indemnify the Administrative 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, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative 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 Administrative 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 Administrative Agent's gross negligence or
willful misconduct; provided, further, no Bank shall be obligated for the
ratable share of such indemnity obligations of any other Bank. The agreements
in this subsection shall survive the payment of the Notes and all other
amounts payable hereunder.
9.08 BNY 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 BNY were not the Administrative Agent hereunder. With respect to its
Loans made or renewed by it and the Note issued to it, BNY 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 Administrative Agent.
9.09 The Administrative 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
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative
Agent, then the retiring Administrative Agent shall select a successor
Administrative Agent provided such successor Administrative 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 Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Loan Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Loan Agreement and the other Loan Documents.
9.10 Except as otherwise expressly provided for herein, the Agent, in
its capacity as such, shall have no duties or obligations under this Loan
Agreement or any of the other Loan Documents.
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ARTICLE X
Miscellaneous
10.01 All notices, requests and demands to or upon the respective
parties hereto shall be conclusively deemed to have been received by such
party hereto and be effective on the day on which delivered to such party at
the address set forth below or to such other address as such party shall
specify to the other parties hereto in writing, or, if sent prepaid by
registered mail, on the third day after the day on which mailed, addressed to
such party at such address:
(a) if to the Borrowers:
Airgas, Inc.
Airgas Holdings, Inc.
Five Radnor Corporate Center, Suite 550
100 Matsonford Road
Radnor, Pennsylvania 19087
Attention: Britton H. Murdoch
[Courtesy Copy to:
McCausland, Keen & Buckman
Five Radnor Corporate Center, Suite 500
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.
(c) if to the Administrative Agent
The Bank of New York
One Wall Street, 18th North
New York, New York 10286
Attention: Ms. Kalyani Bose
Telephone: 212/635-4693
Fax: 212/635-6365
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10.02 No failure or delay on the part of any of the Banks or the
Administrative Agent in the exercise of any right, power or privilege
hereunder or under any other Loan Document shall operate as a waiver of any
such right, power or privilege nor shall any such failure or delay preclude
any other or further exercise thereof. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided
by law.
10.03 All covenants, agreements, representations and warranties made
herein and in the other Loan Documents shall survive the making by the Banks
of the Loans and the execution and delivery to the Banks of the Loan Documents
and shall continue in full force and effect so long as any of the indebtedness
of any of the Borrowers to the Banks or any obligations of the Banks under the
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 shall inure to the benefit of the successors
and assigns of the Banks.
10.04 The Borrowers jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent and the Agent in
connection with the preparation, execution and delivery of the Loan Documents,
including, without limitation, the reasonable fees and out-of-pocket expenses
of Moore & Van Allen, PLLC, special counsel to the Administrative Agent and
the Agent, and out-of-pocket costs and expenses of the Banks in connection
with the enforcement of this Loan Agreement and the other Loan Documents and
to hold the Banks harmless from any and all such costs, expenses and
liabilities. In addition, the 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 Administrative Agent on behalf of the Banks) effecting any material
amendment, modification or waiver of the terms of this Loan Agreement,
including without limitation any such agreement relating to any provision set
forth in Article V, Article VI, Article VII or Article VIII hereof. The
provisions of this Section shall survive the termination of this Loan
Agreement.
10.05 With the written consent of the Majority Banks, the Administrative
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 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 Administrative
Agent on behalf of the Banks may execute and deliver to the Borrowers a
written instrument waiving, on such terms and conditions as the Administrative
Agent or Majority Banks may specify in such instrument, any of the
requirements of this Loan Agreement or any other Loan Document or any Event of
Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) extend the maturity of
any Note, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or change the amount or term
of any Commitment, or change the amount or time for payment of the Commitment
Fee, or amend, modify or waive any provision of this Section 10.05 or reduce
the percentage specified in the definition of "Majority Banks" set forth in
Section 1.01 hereof, or amend, modify or waive any provision of any Loan
Document requiring action or approval by all of the Banks, or waive an Event
of Default specified in Section 8.01(a) hereof, or consent to the assignment
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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 7.01(f)
hereof), 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 Administrative Agent, the Agent and the
Banks of the parties thereof, in each case without the written consent of all
the Banks, (b) amend, modify or waive any provision of Article IX hereof
(other than Section 9.10 hereof) without the written consent of the then
Administrative Agent or (c) amend, modify or waive the terms of Section 9.10
hereof without the written consent of the 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, the Administrative Agent and all future holders of the Notes. In the
case of any waiver of the requirements of this Loan Agreement, any other Loan
Document or the Notes, the parties thereto shall be restored to their former
position and rights thereunder, and any Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Event of Default, or impair any right consequent thereon.
10.06 Except as otherwise provided for hereunder, interest, fees and
premiums hereunder shall be computed on the basis of a three hundred
sixty-five (365) day year for the actual number of days in the billing period.
10.07 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 8.01 hereof to authorize the Administrative Agent to
declare the Notes and all other obligations owing to the Banks, the
Administrative Agent and the Agent hereunder and under the other Loan
Documents due and payable pursuant to the provisions of Section 8.01 hereof,
each Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing at such Bank to or for the credit or
the account of either of the Borrowers against any and all of the obligations
of the Borrowers now or hereafter existing under this Loan Agreement, the
Notes and the other Loan Documents and although such obligations may be
unmatured.
10.08 Except as otherwise provided for hereunder, should any installment
or other payment of the principal of or interest on the Notes become due and
payable on other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day thereafter and in the case of an
installment of principal, interest shall be payable thereon at the rate per
annum herein specified during such extension.
10.09 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.
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10.10 (a) Any Bank may, at any time upon written notice thereof to the
Administrative Agent and the Borrowers, transfer or assign all or any portion
of the indebtedness evidenced by the Note held by such Bank and the Commitment
of such Bank hereunder and all of the other rights and obligations of such
Bank hereunder and under the other Loan Documents and the terms hereof shall
extend to any subsequent holder of the Note; provided, however, that any
assignment by a Bank hereunder shall (i) be subject to the prior written
consent of Airgas, the Agent and the Administrative Agent (in any case not to
be unreasonably withheld) and (ii) be in a minimum principal amount of
$5,000,000.00 or in an integral multiple of $1,000,000.00 in excess thereof.
On the effective date of any assignment, Exhibit A is deemed amended to
reflect such assignment.
(b) Any Bank may at any time sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Loan Agreement and the other Loan Documents; provided, however, that (1) such
Bank's obligations under this Loan Agreement shall remain unchanged, (2) such
Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (3) each participating bank or other entity
shall be entitled to the benefit of the cost protection provisions contained
in Sections 3.04, 3.05, 3.06, 3.08 and 3.09 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 Administrative Agent and the
other Banks shall continue to deal solely and directly with such selling Bank
in connection with such Bank's rights and obligations under this Loan
Agreement and the other Loan Documents, and such Bank shall retain the sole
right (and participating banks or other entities shall have no right) to
enforce the obligations of 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 10.05
hereof, unanimous consent of the Bank).
(c) Any Bank may pledge all or any portion of its rights under this Loan
Agreement and/or its Note to a Federal Reserve Bank. No such pledge shall
release any Bank from its obligations hereunder or substitute any such Federal
Reserve Bank for such Bank as a party hereto.
10.11 The term of this Loan Agreement shall be until the Commitments of
the Banks hereunder shall have terminated and the Banks have received payment
in full of the unpaid principal and interest of the Notes and all other
amounts payable hereunder.
10.12 All obligations of the Borrowers hereunder and under the Notes
shall be joint and several obligations of the Borrowers.
10.13 (a) All documents executed pursuant to the transactions
contemplated herein including without limitation this Loan Agreement, the
Notes and the other Loan Documents shall be deemed to be contracts made under,
and for all purposes shall be construed in accordance with, the internal laws
and judicial decisions of the State of North Carolina. 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
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Mecklenburg County, North Carolina are a convenient forum and agrees not to
raise as a defense that such courts are not a convenient forum.
(b) In the event any one or more of the provisions contained in this
Loan Agreement should be held invalid, illegal or unenforcable in any respect,
the validity, legality and enforcability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
(c) This Loan Agreement and the other Loan Documents and agent's fee
letters constitute the entire contract among the parties relative to the
subject matter hereof and thereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Loan
Agreement.
10.14 The payment of the indebtedness of the Borrowers to the Banks
hereunder and under the 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.
10.15 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.
10.16 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.]
EX-141
IN WITNESS WHEREOF, each of the parties hereto has caused this Loan
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AIRGAS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
AIRGAS HOLDINGS, INC.
By: /s/Britton H. Murdoch
_____________________________________
Britton H. Murdoch
Vice President
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
___________________________________
NATIONSBANK OF NORTH CAROLINA, N.A.,
as Agent
By: /s/M.Gregory Seaton
_____________________________________
Title: Vice President
___________________________________
THE BANK OF NEW YORK,
as Administrative Agent
for the Banks
By: /s/Michael V. Flannery
_____________________________________
Title: Vice President
____________________________________
EX-142