EXHIBIT 4.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of May 2, 2003 is entered into by and among AIRGAS, INC., a Delaware corporation
("Airgas" and also a "Borrower"), AIRGAS CANADA INC., a Canada corporation, and
RED-D-ARC LIMITED, an Ontario corporation, (each a "Canadian Borrower" and
together with Airgas, the "Borrowers"), the Guarantors signatory hereto, the
Lenders signatory hereto, BANK OF AMERICA, N. A., as administrative agent for
the Lenders (in such capacity, the "U.S. Agent"), CANADIAN IMPERIAL BANK OF
COMMERCE, as Canadian administrative agent for the Lenders (in such capacity,
the "Canadian Agent"), FLEET NATIONAL BANK, as Syndication Agent, and THE BANK
OF NEW YORK, as Documentation Agent.
RECITALS
A. The Borrowers, the Guarantors, the Lenders and the Agents are party
to that certain Tenth Amended and Restated Credit Agreement dated as of July 30,
2001, as previously amended pursuant to that certain First Amendment to Credit
Agreement dated as of December 31, 2001 and that certain Waiver and Second
Amendment to Credit Agreement dated as of August 20, 2002 (as so previously
amended, the "Existing Credit Agreement").
B. The Credit Parties have requested that the Required Lenders
amend the Existing Credit Agreement as provided herein.
C. The Required Lenders have agreed to amend the Existing Credit
Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto 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,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement
as amended hereby.
"Third Amendment 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, including its
preamble and recitals, have the meanings provided in the Existing Credit
Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II.
SUBPART 2.1 Amendments to Section 1.1. Section 1.1 of the
Existing Credit Agreement is hereby amended in the following respects:
(a) The following definitions appearing in Section 1.1 of
the Existing Credit Agreement are hereby amended in their entireties to
read as follows:
"Acquisition", by any Consolidated Party, means the
acquisition (whether or not involving a merger or
consolidation) by such Consolidated Party, of (i) to the
extent not constituting a Consolidated Capital Expenditure,
all or a majority of the Capital Stock or all or substantially
all of the Property or a line of business or division of
another Person or (ii) all of the remaining Capital Stock of
National Welders not then owned by Airgas and/or its
Restricted Subsidiaries.
"Additional Commitment" means, with respect to any
Person which executes a New Commitment Agreement in accordance
with Section 4.4(d), the commitment of such Lender in an
aggregate principal amount up to the amount specified in such
New Commitment Agreement (i) to (A) make Revolving U.S. Loans
in accordance with the provisions of Section 2.1(a), (B)
purchase participation interests in U.S. Letters of Credit in
accordance with the provisions of Section 2.3(c), and (C)
purchase participation interests in the U.S. Swingline Loans
in accordance with the provisions of Section 2.4(b)(iii), (ii)
to (A) make Revolving Canadian Loans in accordance with the
provisions of Section 3.1(a), (B) purchase participation
interests in Canadian Letters of Credit in accordance with the
provisions of Section 3.3(c) and (C) accept Bankers'
Acceptances in accordance with the provisions of Section 3.4,
and/or (iii) to make U.S. Term Loans in accordance with the
provisions of Section 2.5(a).
"Consolidated Capital Expenditures" means, for any
period, all capital expenditures of the Consolidated Parties
on a consolidated basis during such period, as determined in
accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include (i) capital
expenditures constituting Eligible Reinvestments made with the
proceeds of any Asset Disposition or (ii) Acquisitions.
"Consolidated Parties" means a collective reference
to each of Airgas and its Restricted Subsidiaries.
"Medium Term Notes" means (i) any one of the notes
issued by Airgas in favor of the Medium Term Noteholders
pursuant to the Medium Term Note Indenture, as such Medium
Term Notes may be amended, modified, restated or supplemented
and in effect from time to time in accordance with the terms
hereof and (ii) any instrument evidencing Indebtedness
incurred pursuant to Section 8.1(l).
"Medium Term Note Indenture" means a collective
reference to (i) that certain Indenture dated as of August 1,
1996, among Airgas and The Bank of New York as Trustee, as
such Medium Term Note Indenture may be amended, modified,
restated or supplemented and in effect from time to time in
accordance with the terms hereof and (ii) any document or
instrument governing Indebtedness incurred pursuant to Section
8.1(l).
"Restricted Subsidiary" means (i) any wholly-owned
Subsidiary of Airgas (other than the Receivables Subsidiary)
and (ii) any other Subsidiary of Airgas that, at the option of
Airgas, executes a Joinder Agreement in accordance with
Section 7.12.
"Subsidiary" means, as to any Person, (a) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the
time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint
venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than 50% equity
interest at any time. For purposes of clarification only, the
parties hereto hereby acknowledge and agree that,
notwithstanding the fact that National Welders may be
required, in accordance with GAAP, to be consolidated (on the
consolidation basis) with Airgas, the term "Subsidiary" as
used in this Agreement shall not include National Welders
unless and until such time as National Welders would
constitute a "Subsidiary" within the meaning of the
immediately preceding sentence.
"U.S. Term Loan Commitment" means, with respect to
each U.S. Term Lender, the commitment of such U.S. Term Lender
to make U.S. Term Loans in accordance with Section 2.5(a) in
an aggregate principal amount equal to the amount specified in
the U.S. Term Loan Commitment Agreement or New Commitment
Agreement executed by such U.S. Term Lender.
"U.S. Term Loan Committed Amount" means the sum of
(i) the aggregate principal amount of commitments (not to
exceed $100,000,000) received and consented to by the U.S.
Agent from one or more lenders acceptable to the U.S. Agent
and Airgas, pursuant to executed U.S. Term Loan Commitment
Agreements and (ii) any increase in the amount determined
pursuant to clause (i) effectuated pursuant to Section 4.4(d).
"U.S. Term Loan Percentage" means, for any U.S. Term
Lender, the percentage obtained by dividing (i) the principal
amount of the U.S. Term Loan Commitment of such U.S. Term
Lender by (ii) the U.S. Term Loan Committed Amount, as such
percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 2.5(g) or as
the result of an increase in the amount of the U.S. Term Loan
Committed Amount pursuant to Section 4.4(d).
(b) Clause (xiii) of the definition of "Permitted Liens"
appearing in Section 1.1 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
"Permitted Liens" means:
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(xiii) during the 180-day period immediately
succeeding the first date as of which National Welders becomes
a Restricted Subsidiary, if ever, the National Welders Liens;
(c) The following new definitions are hereby added to
Section 1.1 of the Existing Credit Agreement in appropriate
alphabetical order:
"Consolidated Free Cash Flow" means, as of any
Calculation Date for the four-quarter period then ended, net
cash provided by operating activities of the Consolidated
Parties (adjusted, without duplication, consistent with the
definitions of Consolidated Net Income and Consolidated EBITDA
and excluding the impact of a Securitization Transaction)
minus Consolidated Capital Expenditures, all as determined in
accordance with GAAP.
"Eligible Consideration" means, in respect of any
Acquisition, consideration paid by any of the Consolidated
Parties for the Capital Stock or Property being acquired,
including cash and non-cash consideration and any assumption
of Indebtedness, but excluding consideration consisting of (i)
any Capital Stock of Airgas issued to the seller of such
Capital Stock or Property or (ii) the proceeds of any Equity
Issuance by Airgas consummated subsequent to the Closing Date.
"Third Amendment" means the Third Amendment to Credit
Agreement dated as of May 2, 2003 by and among the Borrowers,
the Guarantors, the Lenders party thereto and the Agents.
"Third Amendment Effective Date" shall have the
meaning assigned to such term in Subpart 3.1 of Third
Amendment.
SUBPART 2.2 Amendments to Section 2.5. Subsections (a) and (d) of
Section 2.5 of the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
2.5 U.S. TERM LOAN.
(a) U.S. Term Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein each U.S. Term Lender severally agrees to
make available to Airgas on the Willow Acquisition Date (or on the
effective date of any increase in the U.S. Term Loan Committed Amount
pursuant to Section 4.4(d), as applicable) such U.S. Term Lender's U.S.
Term Loan Percentage of a term loan in U.S. Dollars (the "U.S. Term
Loan") in the aggregate principal amount equal to the U.S. Term Loan
Committed Amount. The U.S. Term Loan may consist of U.S. Base Rate
Loans or Eurodollar Loans, or a combination thereof, as Airgas may
request; provided, however, that no more than five (5) Eurodollar Loans
which are U.S. Term Loans shall be outstanding hereunder at any time
(it being understood that, for purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period).
Amounts repaid on the U.S. Term Loan may not be reborrowed.
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(d) Repayment of U.S. Term Loan. Airgas promises to pay
the outstanding principal amount of the U.S. Term Loan in eighteen (18)
consecutive quarterly installments as follows (as such installments may
hereafter be adjusted as a result of prepayments made pursuant to
Section 4.3 or as the result of an increase in the amount of the U.S.
Term Loan Committed Amount pursuant to Section 4.4(d)), unless
accelerated sooner pursuant to Section 9.2:
U.S. TERM
LOAN PRINCIPAL AMORTIZATION
PRINCIPAL PAYMENT DUE ON THE
AMORTIZATION CORRESPONDING PRINCIPAL
PAYMENT DATES AMORTIZATION PAYMENT DATE
- -----------------------------------------------------
June 30, 2002 and
September 30, 2002 2.50%
- -----------------------------------------------------
December 31, 2002,
March 31, 2003,
June 30, 2003 and
September 30, 2003 3.75%
- -----------------------------------------------------
December 31, 2003,
March 31, 2004,
June 30, 2004 and
September 30, 2004 5.00%
- -----------------------------------------------------
December 31, 2004,
March 31, 2005,
June 30, 2005 and
September 30, 2005 6.25%
- -----------------------------------------------------
December 31, 2005,
March 31, 2006,
June 30, 2006 8.75%
- -----------------------------------------------------
Termination Date Unpaid Balance
SUBPART 2.3 Amendments to Section 4.4. Subsections (d) and (e) of
Section 4.4 of the Existing Credit Agreement are hereby amended in their
entireties to read as follows:
4.4 TERMINATION AND REDUCTION OF COMMITMENTS; INCREASE OF
COMMITMENTS.
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(d) Increase in Commitments. Following the Third
Amendment Effective Date, the Borrowers shall have the right, upon at
least fifteen (15) Business Days' prior written notice to the U.S.
Agent, to increase the Revolving U.S. Committed Amount, the Revolving
Canadian Committed Amount and/or the U.S. Term Loan Committed Amount by
the U.S. Dollar Amount (or the Canadian Dollar Equivalent) of up to
U.S.$150,000,000 in the aggregate for all such increases, in one or
more increases, at any time and from time to time, subject, however, in
any such case, to satisfaction of the following conditions precedent:
(i) no Default or Event of Default has occurred
and is continuing on the date on which such increase is to
become effective;
(ii) the representations and warranties set forth
in Section 6 of this Credit Agreement shall be true and
correct in all material respects on and as of the date on
which such increase is to become effective;
(iii) such increase shall be (A) in respect of any
increase in the Revolving U.S. Committed Amount or the U.S.
Term Loan Committed Amount, an integral multiple of
U.S.$1,000,000 and shall in no event be less than
U.S.$5,000,000 and (B) in respect of any increase in the
Revolving Canadian Committed Amount, an integral multiple of
the Canadian Dollar Equivalent of U.S.$1,000,000 and shall in
no event be less than the Canadian Dollar Equivalent of
U.S.$5,000,000;
(iv) such requested increase shall be effective
on such date only to the extent that, on or before such date,
(A) the U.S. Agent shall have received and accepted a
corresponding amount of Additional Commitment(s) pursuant to a
commitment letter(s) acceptable to the U.S. Agent from one or
more lenders acceptable to the U.S. Agent and, with respect to
any lender that is not at such time a Lender hereunder, Airgas
and (B) each such lender shall have executed an agreement in
the form of Schedule 4.4 hereto (each such agreement a "New
Commitment Agreement"), accepted in writing therein by the
U.S. Agent and, with respect to any lender that is not at such
time a Lender hereunder, Airgas, with respect to the
Additional Commitment of such lender; and
(v) the U.S. Agent shall have received all
documents (including resolutions of the board of directors of
Airgas and opinions of counsel to the applicable Borrower(s))
it may reasonably request relating to the corporate or other
necessary authority for and the validity of such increase in
the Revolving U.S. Committed Amount, the Revolving Canadian
Committed Amount and/or the U.S. Term Loan Committed Amount,
and any other matters relevant thereto, all in form and
substance reasonably satisfactory to the U.S. Agent; and
(vi) if the reallocation, if any, of outstanding
Loans among the Lenders in connection with such increase
results in the prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect
thereto, Airgas shall have paid to each affected Lender such
amounts, if any, as may be required pursuant to Section 4.11.
(e) Upon the effectiveness of the increase in the
Revolving U.S. Committed Amount, the Revolving Canadian Committed
Amount and/or the U.S. Term Loan Committed Amount, as applicable,
pursuant to subsection (d), (i) the U.S. Commitment Percentage or the
Canadian Commitment Percentage, as applicable, of each Lender shall be
automatically adjusted to give effect to such increase, provided that
the amount of each Lender's Revolving U.S. Commitment and Revolving
Canadian Commitment (other than a
Lender whose Revolving U.S. Commitment or Revolving Canadian Commitment
shall have been increased in connection with such increase) shall
remain unchanged, (ii) the Borrowers, the Agents and the Lenders will
use all commercially reasonable efforts to assign and assume
outstanding Loans of the affected category to conform the respective
amounts thereof held by each Lender to the respective U.S. Commitment
Percentage or the Canadian Commitment Percentage, as applicable, as so
adjusted, it being understood that the parties hereto shall use
commercially reasonable efforts to avoid prepayment or assignment of
any affected Loan that is a Eurodollar Loan on a day other than the
last day of the Interest Period applicable thereto and (iii) in the
case of an increase in the U.S. Term Loan Committed Amount, beginning
with the Principal Amortization Payment Date next succeeding the date
of such increase, the amount of each Principal Amortization Payment on
the U.S. Term Loans shall be increased by the minimum amount that, when
allocated ratably (based on outstandings) among all of the Lenders
holding U.S. Term Loans immediately after giving effect to such
increase in the U.S. Term Loan Committed Amount, would provide
(assuming all other things to be equal) for each of the Lenders holding
U.S. Term Loans immediately prior to giving effect to such increase in
the U.S. Term Loan Committed Amount to receive in connection with such
Principal Amortization Payment an amount at least equal to the amount
that such Lender would have received had such increase in the U.S. Term
Loan Committed Amount (and the corresponding adjustment to such
Principal Amortization Payment pursuant to this Section 4.4(e)) not
taken place.
SUBPART 2.4 Amendments to Section 7.1. Subsection (c) of Section
7.1 of the Existing Credit Agreement is hereby amended in its entirety to read
as follows:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to
each of the Agents and each of the Lenders:
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(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Executive Officer of Airgas substantially in the
form of Schedule 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.10 by calculation thereof as
of the end of each such fiscal period, (ii) including a description of
adjustments to Consolidated EBITDA (of the type described in clause (H)
of the definition thereof) attributable to the Willow Acquisition,
(iii) stating that no Default or Event of Default exists, or if any
Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Credit Party proposes to take with
respect thereto and (iv) if the Consolidated Total Leverage Ratio as of
the end of the applicable fiscal period exceeds 3.0 to 1.0, including
calculations of (A) Consolidated Free Cash Flow for the four fiscal
quarter period then ended and (B) all Restricted Payments declared or
made by the Consolidated Parties during the four fiscal quarter period
then ended.
SUBPART 2.5 Amendments to Section 8.1. Section 8.1 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.1 INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to
contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness of Airgas and its Subsidiaries
set forth in Schedule 8.1 (and renewals, refinancings and
extensions thereof on terms and conditions no less favorable
to such Person than such existing Indebtedness);
(c) purchase money Indebtedness and obligations
under Capital Leases or Synthetic Leases hereafter incurred by
any of the Consolidated Parties or assumed or acquired by any
of the Consolidated Parties in connection with a Permitted
Investment; provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not
exceed an aggregate principal amount of $25,000,000 at any one
time outstanding; (ii) such Indebtedness when incurred shall
not exceed the purchase price of the asset(s) financed; and
(iii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon
at the time of such refinancing;
(d) Acquisition Indebtedness; provided that (i)
the total of all such Indebtedness for all such Persons taken
together plus the aggregate outstanding principal amount of
all Indebtedness incurred pursuant to subsection (c) above,
shall not exceed an aggregate principal amount of $50,000,000
at any one time outstanding; (ii) such Indebtedness was not
created in anticipation of the related Permitted Acquisition;
and (iii) unless otherwise permitted by this Section 8.1, no
such Indebtedness shall be refinanced;
(e) obligations of the Borrowers in respect of
Hedging Agreements entered into in order to manage existing or
anticipated interest rate or exchange rate risks and not for
speculative purposes;
(f) intercompany Indebtedness and Guaranty
Obligations permitted under Section 8.5;
(g) Subordinated Debt;
(h) the Permitted Receivables Financing;
(i) (1) Permitted Unsecured Indebtedness to the
extent such Indebtedness is backed or guaranteed by a U.S.
Letter
of Credit or a Canadian Letter of Credit and (2) other
Permitted Unsecured Indebtedness in an aggregate principal
amount not to exceed $25,000,000;
(j) Indebtedness in respect of performance, bid
and surety bonds and completion guarantees provided by Airgas
or any of its Subsidiaries in the ordinary course of business;
(k) during the 180-day period immediately
succeeding the first date as of which National Welders becomes
a Restricted Subsidiary, if ever, Indebtedness of National
Welders outstanding as of such date; and
(l) other unsecured Indebtedness of Airgas
issued on terms substantially the same as the terms contained
in the Medium Term Indenture, as in effect on the Closing
Date, provided that the aggregate outstanding principal amount
of all such Indebtedness shall not to exceed $200,000,000.
SUBPART 2.6 Amendments to Section 8.4. Subsection (b) of Section
8.4 of the Existing Credit Agreement is hereby amended in its entirety to read
as follows:
8.4 CONSOLIDATION, MERGER, AMALGAMATION OR SALE.
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(b) The Credit Parties will not permit any Consolidated
Party to make any Asset Disposition other than an Excluded Asset
Disposition unless (i) except with respect to an Involuntary
Disposition, the consideration paid in connection therewith (A) shall,
except to the extent constituting an Asset Exchange, be at least 75%
cash or Cash Equivalents and (B) shall be in an amount not less than
the fair market value of the Property disposed of, (ii) the aggregate
net book value of the Property disposed of by all Consolidated Parties
shall not exceed (A) $50,000,000 for all such transactions other than
Involuntary Dispositions during any fiscal year, and (B) $100,000,000
for all such transactions other than Involuntary Dispositions after the
Closing Date, (iii) the consideration received for any Property
disposed of in any such transaction other than an Involuntary
Disposition shall not be less than the fair market value of such
Property, (iv) each such transaction other than an Involuntary
Disposition involving Property having a net book value of
U.S.$5,000,000 or more shall be on an arms-length basis with a wholly
independent third party, (v) if the net book value of the Property
subject to such Asset Disposition exceeds $15,000,000, no later than
five (5) Business Days prior to such Asset Disposition, Airgas shall
have delivered to the U.S. Agent (A) a Pro Forma Compliance Certificate
demonstrating that, upon giving effect on a Pro Forma Basis to such
transaction, Airgas would be in compliance with the financial covenants
set forth in Sections 7.10(a) - (c) and (B) a certificate of an
Executive Officer of Airgas specifying the anticipated date of such
Asset Disposition, briefly describing the assets to be sold or
otherwise disposed of and setting forth the net book value of such
assets, the aggregate consideration and the Net Cash Proceeds to be
received for such assets in connection with such Asset Disposition, and
(vi) to the extent required by Section 4.3(b)(iii), Airgas shall,
within the Application Period, apply (or cause to be applied)
an amount equal to the Net Cash Proceeds of such Asset Disposition to
(A) make Eligible Reinvestments or (B) prepay the Loans (and cash
collateralize U.S. LOC Obligations and Canadian LOC Obligations) in
accordance with the terms of Section 4.3(b)(iii). Notwithstanding
anything to the contrary contained in this Credit Agreement, no Credit
Party shall permit any Consolidated Party to engage in or be a party to
any Securitization Transaction other than the Permitted Receivables
Financing.
SUBPART 2.7 Amendments to Section 8.5. Section 8.5 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.5 INVESTMENTS.
The Credit Parties will not permit any Consolidated Party to
make any Investments, except for:
(a) Investments consisting of cash and Cash
Equivalents;
(b) Investments consisting of accounts
receivable created, acquired or made by any Consolidated Party
in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(c) Investments consisting of Capital Stock,
obligations, securities or other property received by any
Consolidated Party in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt
obligors;
(d) Investments existing as of the Closing Date
and set forth in Schedule 8.5;
(e) Investments consisting of advances or loans
to directors, officers, employees, agents, customers or
suppliers that do not exceed $5,000,000 in the aggregate at
any one time outstanding;
(f) Investments in any U.S. Credit Party;
(g) Investments by any Canadian Subsidiary in
any Canadian Credit Party;
(h) any Eligible Reinvestment of the proceeds of
any Asset Disposition as contemplated by Section 8.4(b)(v),
provided that prior to a Full Collateralization Date, this
subsection (h) shall not apply to limit Investments made with
the proceeds of an Asset Disposition;
(i) (i) the Willow Acquisition and (ii) after
the first to occur of (x) the date, if any, that the Willow
Purchase Agreement is terminated in accordance with Section 15
thereof and (y) April 1, 2002, other Investments consisting of
an Acquisition by Airgas or any Subsidiary of Airgas, provided
that (A) the Property
acquired (or the Property of the Person acquired) in such
Acquisition is used or useful in the same or a similar or
ancillary line of business as Airgas and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions
or expansions thereof), (B) to the extent applicable, the U.S.
Agent shall have received all items in respect of the Capital
Stock or Property acquired in such Acquisition required to be
delivered by the terms of Section 7.12 and/or Section 7.13,
(C) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved
such Acquisition, (D) Airgas shall have delivered to the U.S.
Agent (1) a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to such Acquisition on a Pro Forma
Basis, Airgas would be in compliance with the financial
covenants set forth in Sections 7.10(a) - (c) and (2) if the
EBITDA for the four fiscal quarter period ending prior to the
date of such Acquisition attributable to the Person or
Property acquired in such Acquisition exceeds $10,000,000, a
consolidated balance sheet and income statement of such Person
or Property, together with related consolidated statements of
operations and retained earnings and of cash flows for such
four fiscal quarter period with respect to such Person or
Property which have been prepared in accordance with GAAP and
reviewed by an independent certified public accountant of
recognized national standing reasonably acceptable to the U.S.
Agent, (E) the representations and warranties made by the
Credit Parties in any Credit Document shall be true and
correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto) except
to the extent such representations and warranties expressly
relate to an earlier date and (F) the Eligible Consideration
paid by the Consolidated Parties for such Acquisition, taken
together with the Eligible Consideration paid by the
Consolidated Parties for all Acquisitions previously
consummated during the then current fiscal year and the amount
of all Investments (excluding any Investments made with
Capital Stock of Airgas or the proceeds of any Equity Issuance
by Airgas consummated subsequent to the Closing Date) made by
the Consolidated Parties pursuant to Section 8.5(l) during the
then current fiscal year, shall not exceed, after giving
effect to such Acquisition, (1) if the Consolidated Total
Leverage Ratio as of the most recent fiscal quarter end
preceding the date of such Acquisition with respect to which
the U.S. Agent has received the Required Financial Information
is 4.0 to 1.0 or greater, $12,500,000, or (2) if the
Consolidated Total Leverage Ratio as of the most recent fiscal
quarter end preceding the date of such Acquisition with
respect to which the U.S. Agent has received the Required
Financial Information is less than 4.0 to 1.0, (A)
$150,000,000, if the Applicable Percentage is based on
"Pricing Level I", "Pricing Level II", "Pricing Level III" or
"Pricing Level IV" at the time of such Acquisition or (B)
$50,000,000, if the Applicable Percentage is based on "Pricing
Level V" or "Pricing Level VI" at the time of such
Acquisition.
(j) Investments (other than Acquisitions)
consisting of non-cash consideration received by a
Consolidated Party in connection with any Asset Disposition
permitted by Section 8.4(b);
(k) Investments by any Credit Party in the
Receivables Subsidiary made as part of the Permitted
Receivables Financing;
(l) to the extent not constituting an
Acquisition, additional Investments in the Capital Stock of
National Welders; or
(m) other Investments not constituting
Restricted Payments and not listed above in an aggregate
amount not to exceed $10,000,000.
SUBPART 2.8 Amendments to Section 8.6. Section 8.6 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.6 RESTRICTED PAYMENTS.
The Credit Parties will not permit any Consolidated Party to
directly or indirectly declare, order, make or set apart any sum for or
pay any Restricted Payment, except (i) to make dividends payable solely
in the same class of Capital Stock of such Person, (ii) to make
dividends or other distributions payable to a Credit Party (directly or
indirectly through Subsidiaries of a Credit Party), (iii) as permitted
by Section 8.7 and (iv) other Restricted Payments so long as (a) no
Default or Event of Default shall have occurred and be continuing at
the time of any such Restricted Payment or shall result upon giving
effect thereto and (b) either (1) at the time of any such Restricted
Payment, the Consolidated Total Leverage Ratio for each of the two
fiscal quarters most recently ended for which Airgas has delivered the
Required Financial Information does not exceed 3.0 to 1.0 or (2) the
aggregate amount of such Restricted Payments does not exceed during any
period of four consecutive fiscal quarters of the Consolidated Parties
the lesser of (x) $17.5 million and (y) 20% of Consolidated Free Cash
Flow for such period. For purposes of the foregoing, (i) on any
calculation date for purposes of this Section 8.6 occurring on or
before June 30, 2003, the amount of Restricted Payments made after the
Third Amendment Effective Date and on or before such calculation date
shall be deemed to be the actual amount of such Restricted Payment
multiplied by 4, (ii) on any calculation date for purposes of this
Section 8.6 occurring after June 30, 2003 and on or before September
30, 2003, the amount of Restricted Payments made after the Third
Amendment Effective Date and on or before such calculation date shall
be deemed to be the actual amount of such Restricted Payment multiplied
by 2 and (iii) on any calculation date for purposes of this Section 8.6
occurring after September 30, 2003 and on or before December 31, 2003,
the amount of Restricted Payments made after the Third Amendment
Effective Date and on or before such calculation date shall be deemed
to be the actual amount of such Restricted Payment multiplied by 1.333.
SUBPART 2.9 Amendments to Section 8.9. Section 8.9 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.9 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit any Consolidated Party to
directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
such Person to (a) make Restricted Payments, (b) pay any Indebtedness
or other obligation owed to any Credit Party, (c) make loans or
advances to any Credit Party, (d) sell, lease or transfer any of its
Property to any Credit Party, or (e) act as a Credit Party and pledge
its assets (other than Excluded Property) pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to
in clauses (a)-(d) above and, solely with respect to the Medium Term
Notes and the Medium Term Indenture, clause (e) above) for such
encumbrances or restrictions existing under or by reason of (i) this
Credit Agreement and the other Credit Documents, (ii) any Junior
Financing Documentation, provided that the encumbrances and
restrictions relating to any Consolidated Party in such document or
instrument are no more restrictive than the corresponding encumbrances
and restrictions contained in the Subordinated Note Indenture and the
Subordinated Notes, in each case as in effect as of the Closing Date,
(iii) applicable law, (iv) any document or instrument governing
Indebtedness incurred pursuant to Section 8.1(c), provided that any
such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (v) the Medium Term
Indenture, as in effect as of the Closing Date, and any document or
instrument governing Indebtedness incurred pursuant to Section 8.1(l),
(vi) any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein
relates only to the asset or assets subject to such Permitted Lien,
(vii) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.4(b)
pending the consummation of such sale or (viii) customary restrictions
and conditions contained in leases and other contracts restricting the
assignment thereof.
SUBPART 2.10 Amendments to Section 8.11. Section 8.11 of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
8.11 NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not permit any Consolidated Party to
enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the existence of any Lien upon any of its
Property in favor of the U.S. Agent or the Collateral Agent (in each
case, for the benefit of the Lenders) for the purpose of securing the
Credit Party Obligations, whether now owned or hereafter acquired, or
requiring the grant of any security for any obligation if such Property
is given as security for the Credit Party Obligations, except (a) in
connection with any document or instrument governing Indebtedness
incurred pursuant to Section 8.1(c), provided that any such restriction
contained therein relates only to the asset or assets constructed or
acquired in connection therewith, (b) in connection with any Permitted
Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to
the asset or assets subject to such Permitted Lien and (c) pursuant to
customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.4(b),
pending the consummation of such sale, (d) the Medium Term Indenture,
as in effect as
of the Closing Date, and any document or instrument governing
Indebtedness incurred pursuant to Section 8.1(l), and (e) customary
restrictions and conditions contained in leases and other contracts
restricting the assignment thereof.
SUBPART 2.11 Deletion of Section 8.13. Section 8.13 of the
Existing Credit Agreement is hereby deleted in its entirety.
SUBPART 2.12 Replacement of Schedule 4.4. Schedule 4.4 to the
Existing Credit Agreement is hereby deleted in its entirety and a new Schedule
4.4 in the form of Schedule 4.4 attached hereto is substituted therefor.
SUBPART 2.13 Replacement of Schedule 7.1(c). Schedule 7.1(c) to
the Existing Credit Agreement is hereby deleted in its entirety and a new
Schedule 7.1(c) in the form of Schedule 7.1(c) attached hereto is substituted
therefor.
PART III
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective as of the date hereof (the
"Third Amendment Effective Date") provided that all of the conditions set forth
in this Part III shall have been satisfied on or prior to such date.
SUBPART 3.1 Execution of Counterparts of Amendment. The U.S Agent
shall have received counterparts of this Amendment on or before May 2, 2003,
which collectively shall have been duly executed on behalf of each of the
Borrowers, the Guarantors and the Required Lenders.
SUBPART 3.2 Corporate Documents. The U.S Agent shall have
received the following:
(i) Resolutions. Copies of resolutions of the Board of
Directors of each Credit Party approving and adopting this Amendment,
the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and effect as of
the Third Amendment Effective Date.
(ii) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to Airgas certified
as of a recent date by the appropriate Governmental Authorities of the
state of incorporation and the state of the chief executive office and
principal place of business.
(iii) Incumbency. An incumbency certificate of each Credit
Party certified by a secretary or assistant secretary to be true and
correct as of the Third Amendment Effective Date.
SUBPART 3.3 Opinion of Counsel. The U.S. Agent shall have
received a legal opinion of Cravath, Swaine & Moore LLP dated as of the Third
Amendment Effective Date and in form and substance reasonably satisfactory to
the U.S. Agent.
SUBPART 3.4 Amendment Fee. For the account of each Lender
approving this Amendment on before 5:00 p.m., Charlotte, North Carolina time, on
May 1, 2003, the U.S. Agent shall have received an amendment fee equal to 10
basis points on the amount equal to the sum of (i) such Lender's Commitments
plus (ii) the outstanding U.S. Term Loans held by such Lender.
SUBPART 3.5 Representations and Warranties. The representations
and warranties made by the Credit Parties pursuant to Subpart 4.2 shall be true
and correct as of the Third Amendment Effective Date.
PART IV
MISCELLANEOUS
SUBPART 4.1 Construction. This Amendment 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 Amended Credit Agreement.
SUBPART 4.2 Representations and Warranties. Each Credit Party
hereby represents and warrants that (i) each Credit Party that is party to this
Amendment: (a) has the requisite corporate power and authority to execute,
deliver and perform this Amendment, as applicable and (b) is duly authorized to,
and has been authorized by all necessary corporate action, to execute, deliver
and perform this Amendment, (ii) the representations and warranties contained in
Section 6 of the Amended Credit Agreement are true and correct in all material
respects on and as of the date hereof upon giving effect to this Amendment as
though made on and as of such date (except for those which expressly relate to
an earlier date) and (iii) no Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof upon giving effect to
this Amendment.
SUBPART 4.3 Acknowledgment. The Guarantors acknowledge and
consent to all of the terms and conditions of this Amendment and agree that this
Amendment does not operate to reduce or discharge the Guarantors' obligations
under the Amended Credit Agreement or the other Credit Documents. The Guarantors
further acknowledge and agree that the Guarantors have no claims, counterclaims,
offsets, or defenses to the Credit Documents and the performance of the
Guarantors' obligations thereunder or if the Guarantors did have any such
claims, counterclaims, offsets or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Lenders' execution and
delivery of this Amendment.
SUBPART 4.4 Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SUBPART 4.5 Binding Effect. This Amendment, 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. Except as
expressly modified and amended in this Amendment, all the terms, provisions and
conditions of the Credit Documents shall remain unchanged and shall continue in
full force and effect.
SUBPART 4.6 GOVERNING LAW. THIS AGREEMENT 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 NEW YORK.
SUBPART 4.7 Severability. If any provision of this Amendment is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
SCHEDULE 4.4
FORM OF
NEW COMMITMENT AGREEMENT
Reference is made to the Tenth Amended and Restated Credit Agreement
dated as of July 30, 2001 (as amended, modified, extended or restated from time
to time, the "Credit Agreement") by and among Airgas, Inc., a Delaware
corporation ("Airgas"), the other Credit Parties party thereto, the Lenders
party thereto, the Guarantors party thereto, Bank of America, N.A., as U.S.
Agent and Canadian Imperial Bank of Commerce, as Canadian Agent. All of the
defined terms in the Credit Agreement are incorporated herein by reference.
1. Effective as of the Effective Date set forth below, the
undersigned Lender hereby confirms its Additional Commitment, in an aggregate
principal amount of up to the amount specified below to [(i) make Revolving U.S.
Loans in accordance with the provisions of Section 2.1(a) of the Credit
Agreement, (ii) purchase participation interests in U.S. Letters of Credit in
accordance with the provisions of Section 2.3(c) of the Credit Agreement and
(iii) to purchase participation interests in the U.S. Swingline Loans in
accordance with the provisions of Section 2.4(b)(iii) of the Credit Agreement]*
[(i) make Revolving Canadian Loans in accordance with the provisions of Section
3.1(a) of the Credit Agreement, (ii) purchase participation interests in
Canadian Letters of Credit in accordance with the provisions of Section 3.3(c)
of the Credit Agreement and (iii) issue Bankers' Acceptances in accordance with
the provisions of Section 3.4 of the Credit Agreement] [make a U.S. Term Loan on
the Effective Date in accordance with the provisions of Section 2.5(a) of the
Credit Agreement]***. If the undersigned Lender is already a Lender under the
Credit Agreement, such Lender acknowledges and agrees that such Additional
Commitment is in addition to any existing Commitment of such Lender under the
Credit Agreement. If the undersigned Lender is not already a Lender under the
Credit Agreement, such Lender hereby acknowledges, agrees and confirms that, by
its execution of this New Commitment Agreement, such Lender will, as of the
Effective Date, be a party to the Credit Agreement and be bound by the
provisions of the Credit Agreement and, to the extent of its Commitment, have
the rights and obligations of a Lender thereunder.
2. This New Commitment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Amount of Additional Commitment ______________________
Effective Date of Additional Commitment ________________, 20__
*To be used if the New Commitment being provided is a Revolving U.S. Commitment
**To be used if the New Commitment being provided is a Revolving Canadian
Commitment
***To be used if the New Commitment being provided is a U.S. Term Loan
Commitment
The terms set forth above
are hereby agreed to:
[Lender]
By:___________________________
Title:
CONSENTED TO (as required by the Credit Agreement):
BANK OF AMERICA, N.A.,
as U.S. Agent [AIRGAS, INC.]
By:____________________________ By:____________________________
Title: Title:
SCHEDULE 7.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 20___.
I, ______________________, [Title] of Airgas, Inc. ("Airgas") hereby
certify that, to the best of my knowledge and belief, with respect to that
certain Tenth Amended and Restated Credit Agreement dated as of July 30, 2001
(as amended, modified, extended or restated from time to time, the "Credit
Agreement"; all of the defined terms in the Credit Agreement are incorporated
herein by reference) among Airgas, the Canadian Borrowers, the Lenders party
thereto, the Guarantors party thereto, Bank of America, N.A., as U.S. Agent and
Canadian Imperial Bank of Commerce, as Canadian Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and
have been prepared in accordance with GAAP (subject to Section
1.3 of the Credit Agreement) applied on a consistent basis,
subject to changes resulting from normal year-end audit
adjustments.
b. Since ___________ (the date of the last similar certification,
or, if none, the Closing Date) no Default or Event of Default
has occurred and is continuing under the Credit Agreement; and
Delivered herewith are detailed calculations demonstrating (i) compliance by the
Consolidated Parties with the financial covenants contained in Section 7.10 of
the Credit Agreement as of the end of the fiscal period referred to above and
(ii) if the Consolidated Total Leverage Ratio as of the end of the fiscal period
referred to above exceeds 3.0 to 1.0, (A) the amount of Consolidated Free Cash
Flow for the four fiscal quarter period ending as of the end of such fiscal
period and (B) the amount of all Restricted Payments declared or made by the
Consolidated Parties during the four fiscal quarter period ending as of the end
of such fiscal period.
This ______ day of ___________, 20__.
AIRGAS, INC.
Name:___________________________
Title:__________________________
Attachment to Officer's Certificate
COMPUTATION OF FINANCIAL COVENANTS
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
BORROWERS: AIRGAS, INC.
By: /s/ Joseph C. Sullivan
----------------------
Name: Joseph C. Sullivan
Title: Vice President
AIRGAS CANADA INC.
By: /s/ Robert M. McLaughlin
------------------------
Name: Robert M. McLaughlin
Title: Vice President
RED-D-ARC LIMITED
By: /s/ Robert M. McLaughlin
------------------------
Name: Robert M. McLaughlin
Title: Vice President
U.S.GUARANTORS: AIRGAS-EAST, INC.
AIRGAS-GREAT LAKES, INC.
AIRGAS-MID AMERICA, INC.
AIRGAS-NORTH CENTRAL, INC.
AIRGAS-SOUTH, INC.
AIRGAS-GULF STATES, INC.
AIRGAS-INTERMOUNTAIN, INC.
AIRGAS-MID SOUTH, INC.
AIRGAS-NORPAC, INC.
AIRGAS-NORTHERN CALIFORNIA &
NEVADA, INC.
AIRGAS-SOUTHWEST, INC.
AIRGAS-WEST, INC.
AIRGAS-SAFETY, INC.
RUTLAND TOOL & SUPPLY CO., INC.
AIRGAS CARBONIC, INC.
AIRGAS SPECIALTY GASES, INC.
NITROUS OXIDE CORP.
PURITAN MEDICAL PRODUCTS, INC.
RED-D-ARC, INC.
AIRGAS DATA, LLC
By: /s/ Robert M. McLaughlin
------------------------
Name: Robert M. McLaughlin
Title: Vice President
ATNL, INC.
By: /s/ Connie S. Linhart
---------------------
Name: Connie S. Linhart
Title: President
CANADIAN SUBSIDIARY
GUARANTORS: AIRGAS INTERNATIONAL, INC.
AIRGAS, S.A. DE C.V.
By: /s/ Joseph C. Sullivan
----------------------
Name: Joseph C. Sullivan
Title: Vice President
U.S. AGENT: BANK OF AMERICA, N.A.,
as US Agent
By: /s/ Donald J. Chin
------------------
Name: Donald J. Chin
Title: Managing Director
U.S. LENDERS: BANK OF AMERICA, N.A.
By: /s/ Donald J. Chin
-------------------
Name: Donald J. Chin
Title: Managing Director
BANCA NAZIONALE DEL LAVARO S.P.A
NEW YORK BRANCH
By: /s/ Frederic W. Hall
--------------------
Name: Frederic W. Hall
Title: Vice President
By: /s/ Leonardo Valentini
----------------------
Name: Leonardo Valentini
Title: First Vice President
THE BANK OF NEW YORK
By: /s/ David S. Csatari
--------------------
Name: David S. Csatari
Title: Vice President
BANK OF TOYKO-MITSUBISHI TRUST COMPANY
By: /s/ P. Shah
-----------
Name: P. Shah
Title: Vice President
CIBC INC.
By: /s/ Lindsay Gordon
------------------
Name: Lindsay Gordon
Title: Executive Director
JP MORGAN CHASE BANK
By: /s/ Lee Brennan
---------------
Name: Lee Brennan
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Barbara Van Meerten
-----------------------
Name: Barbara Van Meerten
Title: Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Frank A. Pugliese
---------------------
Name: Frank A. Pugliese
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Marwan Isbaih
-----------------
Name: Marwan Isbaih
Title: Director
MELLON BANK, N.A.
By: /s/ William M. Feathers
-----------------------
Name: William M. Feathers
Title: Vice President
NATIONAL CITY BANK
By: /s/ Thomas J. McDonnell
-----------------------
Name: Thomas J. McDonnell
Title: Senior Vice President
BANK OF OKLAHOMA, N.A.
By: /s/ Pamela J. Amburgy
---------------------
Name: Pamela J. Amburgy
Title: Vice President
FARMER & MERCHANTS BANK OF CENTRAL
CALIFORNIA
By: /s/ Ken Smith
-------------
Name: Ken Smith
Title: Senior Vice President - Credit Admin
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ Randall R. Meck
-------------------
Name: Randall R. Meck
Title: Vice President
AIB DEBT MANAGEMENT LTD.
By: /s/ John Farrace By: /s/ Rita Terradista
---------------- -------------------
Name: John Farrace Name: Rita Terradista
Title: Senior Vice President Title: Senior Vice President
JISSEKIKUN FUNDING, LTD.
SEQUILS-MAGNUM, LTD.
C/O PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
By:
Name:
Title:
HARCH CLO I LIMITED
C/O HARCH CAPITAL MANAGEMENT
By: /s/ Michael E. Lewitt
---------------------
Name: Michael E. Lewitt
Title: Authorized Signatory
LAGUNA FUNDING, LLC
By: /s/ Ann E. Morris
-----------------
Name: Ann E. Morris
Title: Asst Vice President
MONUMENT CAPITAL LTC., AS ASSIGNEE
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Joel Serebransky
--------------------
Name: Joel Serebransky
Title: Senior Vice President
BANK LEUMI USA
By: /s/ Joung Hee Hong
------------------
Name: Joung Hee Hong
Title: Vice President
OCTAGON INVESTMENT PARTNERS III, LTD.
BY: OCTAGON CREDIT INVESTORS, LLC
AS PORTFOLIO MANAGER
By: /s/Michael B. Nechamkin
-----------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
ADDISON CDO, LIMITED (#1279)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Mohan V. Phansalkar
Executive Vice President
JISSEKIKUN FUNDING, LTD. (#1288)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Mohan V. Phansalkar
Executive Vice President
SEQUILS-MAGNUM, LTD. (1280)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Mohan V. Phansalkar
Executive Vice President
WRIGLEY CDO, LTD. (#1285)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
---------------------------
Mohan V. Phansalkar
Executive Vice President
CANADIAN AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Lindsay Gordon
------------------
Name: Lindsay Gordon
Title: Executive Director
By:
Name:
Title:
CANADIAN LENDERS: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Lindsay Gordon
------------------
Name: Lindsay Gordon
Title: Executive Director
BANK OF AMERICA, N.A.
(CANADA BRANCH)
By: /s/ Medina Sales de Andrade
---------------------------
Name: Medina Sales de Andrade
Title: Assistant Vice-President
MELLON BANK, N.A., CANADA BRANCH
By: /s/ Wendy B. H. Bocti
---------------------
Name: Wendy B. H. Bocti
Title: Principal Officer