EX-1
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment No. 1"),
dated as of April 13, 1998, is entered into by and among AIRGAS, INC.
("Airgas"), AIRGAS CANADA INC., RED-D-ARC LIMITED and AIRGAS ONTARIO INC.
(each a "Canadian Borrower", and collectively with Airgas, the
"Borrowers"), the U.S. Lenders and the Canadian Lenders (collectively, the
"Lenders"), NATIONSBANK, N.A. (the "U.S. Agent") and CANADIAN IMPERIAL BANK
OF COMMERCE (the "Canadian Agent", collectively with the U.S. Agent, the
"Agents").
RECITALS
WHEREAS, the Borrowers, the Lenders and the Agents are party to that
certain Credit Agreement dated as of December 5, 1997 (the "Existing Credit
Agreement");
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following terms used in this
Amendment No. 1, including its preamble and recitals, have the following
meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 1 Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 1,
including its preamble and recitals, have the meanings provided in the
Amended Credit Agreement.
EX-2
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 1
Effective Date, the Existing Credit Agreement is hereby amended in
accordance with this Part II. Except as so amended, the Existing Credit
Agreement and all other Credit Documents shall continue in full force and
effect.
SUBPART 2.1. Amendment to Section 1.1. The following definitions
appearing in Section 1.1 of the Existing Credit Agreement are amended in
their entireties to read as follows:
"Consolidated Net Income" means, for any period, the sum of (i)
the sum, without duplication, of net income (excluding extraordinary
items) after taxes for such period of the Consolidated Parties, plus
(ii) on and after such time, if ever, as National Welders is required
to be consolidated with Airgas in accordance with GAAP and to the
extent not included in the amount determined pursuant to clause (i)
above, net income (excluding extraordinary items) after taxes for such
period of National Welders, plus (iii) to the extent not included in
the amount determined pursuant to clause (i) above, net income
(excluding extraordinary items) after taxes for such period of any
Person which became a direct or indirect Subsidiary of Airgas as the
result of a Material Acquisition during such period, all as determined
in accordance with GAAP, but excluding (a) the effect of (1) the non-
recurring pre-tax charge of approximately $26 million to be taken by
Airgas in the fourth fiscal quarter of 1997 in connection with the
alleged fraudulent breach of contract by a third-party supplier to
Airgas and (2) any recoveries by Airgas or any of its Subsidiaries
relating to the breach of contract referred in clause (1) above, (b)
the effect of the non-recurring pre-tax, non-cash charge of
approximately $5 million to be taken by Airgas in the fourth fiscal
quarter of 1997 relating to the writedown by Airgas of certain
machinery and equipment, goodwill and other intangible assets of
Airgas Breathing Air Systems, Inc. and Red-D-Arc Limited and (c) the
effect of charges related to restructuring and repositioning made or
to be made for the fiscal year ending March 31, 1998 not to exceed
$25,000,000.
SUBPART 2.2. Amendment to Section 9.1. Subsection (i)(ii) of
Section 9.1 of the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
**********************
(i) Ownership.
**********************
(ii) Airgas shall fail to own, directly or indirectly,
all of the Voting Stock of each of the Canadian Borrowers
which Airgas owned as of the Closing Date other than with
respect to any Canadian Borrower as of the Closing Date
which ceases to be a Canadian Borrower pursuant to Section
11.16.
EX-3
SUBPART 2.3. New Section 11.16. The following new Section 11.16 is
added to the Existing Credit Agreement immediately following existing
Section 11.15 thereof:
11.16 Removal of a Canadian Borrower.
Airgas may at any time request that any Canadian Borrower
hereunder cease to be a Canadian Borrower by delivering to the
Canadian Agent (which shall promptly deliver counterparts thereof to
each Canadian Lender) a written notice to such effect. Such Canadian
Borrower shall cease to be a Canadian Borrower hereunder on the later
to occur of (i) the date the Canadian Agent receives such request, and
(ii) the date such Canadian Borrower has paid all of the Canadian
Borrowers' Obligations owing by such Canadian Borrower, and such
Canadian Borrower shall not be an applicant under any outstanding
Canadian Letter of Credit.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 1 Effective Date. This Amendment No. 1
shall be and become effective as of the date hereof (the "Amendment No. 1
Effective Date") when all of the conditions set forth in this Subpart 3.1
shall have been satisfied, and thereafter this Amendment No. 1 shall be
known, and may be referred to, as "Amendment No. 1".
SUBPART 3.1.1. Execution of Counterparts of Amendment. The U.S. Agent
shall have received executed counterparts (or other evidence of execution,
including facsimile signatures, satisfactory to the U.S. Agent) of this
Amendment No. 1, which collectively shall have been duly executed on behalf
of each of the Borrowers, the Required Lenders and the Agents.
SUBPART 3.1.2. Other Documents. The U.S. Agent shall have received
such other documents as the U.S. Agent, any Lender or counsel to the U.S.
Agent may reasonably request.
PART V
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment No. 1
to any Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment No. 1.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement. This
Amendment No. 1 is a Credit Document executed pursuant to the Existing
Credit Agreement and shall (unless otherwise expressly indicated therein)
be construed, administered and applied in accordance with the terms and
provisions of the Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such time as
this Amendment No. 1 shall become effective pursuant to the terms of
Subpart 3.1, all references in the Credit Documents to the "Credit
Agreement" shall be deemed to refer to the Amended Credit Agreement.
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SUBPART 4.4. Representations and Warranties. Each Credit Party
hereby represents and warrants that (i) each Credit Party that is party to
this Amendment No. 1: (a) has the requisite corporate power and authority
to execute, deliver and perform this Amendment No. 1, as applicable and (b)
is duly authorized to, and has been authorized by all necessary corporate
action, to execute, deliver and perform this Amendment No. 1, (ii) the
representations and warranties contained in Section 6 of the Existing
Credit Agreement are, subject to the limitations set forth therein, true
and correct in all material respects on and as of the date hereof as though
made on and as of such date (except for those which expressly relate to an
earlier date) and (iii) after giving effect to this Amendment No. 1, no
Default or Event of Default exists under the Existing Credit Agreement on
and as of the date hereof.
SUBPART 4.5. No Other Changes. Except as expressly modified and
amended in this Amendment No. 1, all the terms, provisions and conditions
of the Credit Documents shall remain unchanged.
SUBPART 4.6. Counterparts. This Amendment No. 1 may be executed by
the parties hereto in several counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but one and
the same agreement.
SUBPART 4.7. Entirety. This Amendment No. 1, the Amended Credit
Agreement and the other Credit Documents embody the entire agreement
between the parties and supersede all prior agreements and understandings,
if any, relating to the subject matter hereof. These Credit Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties.
SUBPART 4.8. Governing Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
SUBPART 4.9. Successors and Assigns. This Amendment No. 1 shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[Remainder of page intentionally left blank.]
EX-5
This Amendment No. 1 is executed as of the day and year first written
above.
CREDIT PARTIES:
AIRGAS, INC.
By____________________________
Thomas C. Deas, Jr.
Vice President/Finance
AIRGAS CANADA INC.,
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
RED-D-ARC LIMITED
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
AIRGAS ONTARIO INC.
By____________________________
Jeffrey P. Cornwell
Vice President/Finance
[Signatures Continued]
EX-6
U.S. LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as U.S. Agent
By_____________________________
Title____________________________
THE BANK OF NEW YORK
By_____________________________
Title____________________________
FIRST UNION NATIONAL BANK
By_____________________________
Title____________________________
CORESTATES BANK, N.A.
By_____________________________
Title____________________________
BANK OF AMERICA NT&SA
By_____________________________
Title____________________________
[Signatures Continued]
EX-7
THE FIRST NATIONAL BANK OF CHICAGO
By_____________________________
Title____________________________
CIBC INC.
By_____________________________
Title____________________________
PNC BANK, NATIONAL ASSOCIATION
By_____________________________
Title____________________________
FLEET BANK N.A.
By_____________________________
Title____________________________
THE SANWA BANK, LIMITED
NEW YORK BRANCH
By_____________________________
Title____________________________
[Signatures Continued]
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SOCIETE GENERALE
By_____________________________
Title____________________________
THE BANK OF NOVA SCOTIA
By_____________________________
Title____________________________
BANK AUSTRIA AKTIENGESELLSCHAFT
By_____________________________
Title____________________________
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By_____________________________
Title____________________________
THE FUJI BANK, LIMITED
By_____________________________
Title____________________________
MELLON BANK, N.A.
By_____________________________
Title____________________________
[Signatures Continued]
EX-9
SUNTRUST BANK, ATLANTA
By_____________________________
Title____________________________
By_____________________________
Title____________________________
THE SUMITOMO BANK, LIMITED
By_____________________________
Title____________________________
WACHOVIA BANK, N.A.
By_____________________________
Title____________________________
[Signatures Continued]
EX-10
CANADIAN LENDERS:
CANADIAN IMPERIAL BANK OF COMMERCE,
individually in its capacity as a Lender and in its
capacity
as Canadian Agent
By_____________________________
Title____________________________
BANK OF AMERICA CANADA
By_____________________________
Title____________________________
FIRST CHICAGO NBD BANK, CANADA
By_____________________________
Title____________________________
THE BANK OF NOVA SCOTIA
By_____________________________
Title____________________________
MELLON BANK CANADA
By_____________________________
Title____________________________