EXHIBIT 4.1
ELEVENTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of January 14, 2005
among
AIRGAS, INC.,
AIRGAS CANADA INC. and RED-D-ARC LIMITED,
as Borrowers
CERTAIN SUBSIDIARIES OF AIRGAS, INC.
FROM TIME TO TIME PARTY HERETO,
as Guarantors
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
as U.S. Agent
and
THE BANK OF NOVA SCOTIA,
as Canadian Agent
JPMORGAN CHASE BANK, N.A.
and
THE BANK OF NEW YORK,
as Co-Syndication Agents,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
and
PNC BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
BANC OF AMERICA SECURITIES LLC
and
J.P. MORGAN SECURITIES INC.,
as Joint Lead Arrangers and Co-Book Managers,
and
THE BANK OF NEW YORK,
as Joint Lead Arranger
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................................ 1
1.1 Definitions................................................................. 1
1.2 Computation of Time Periods................................................. 27
1.3 Accounting Terms............................................................ 27
ARTICLE II U.S. DOLLAR CREDIT FACILITIES..................................................... 27
2.1 U.S. Revolving Loans........................................................ 27
2.2 Competitive U.S. Loan Subfacility........................................... 29
2.3 U.S. Letter of Credit Subfacility........................................... 31
2.4 U.S. Swingline Loan Subfacility............................................. 35
2.5 U.S. Term Loan.............................................................. 37
ARTICLE III CANADIAN DOLLAR CREDIT FACILITIES................................................ 39
3.1 Canadian Revolving Loans.................................................... 39
3.2 Canadian Swingline Loan Subfacility......................................... 40
3.3 Canadian Letter of Credit Subfacility....................................... 41
3.4 Bankers' Acceptances........................................................ 45
3.5 Removal of a Canadian Borrower.............................................. 47
3.6 Reset Mechanism............................................................. 48
3.7 Certain Waivers............................................................. 48
ARTICLE IV OTHER PROVISIONS RELATING TO CREDIT FACILITIES.................................... 48
4.1 Default Rate................................................................ 48
4.2 Extension and Conversion.................................................... 48
4.3 Prepayments................................................................. 49
4.4 Termination and Reduction of Commitments; Increase of Commitments........... 51
4.5 Fees........................................................................ 53
4.6 Capital Adequacy............................................................ 55
4.7 Inability To Determine Interest Rate........................................ 55
4.8 Illegality.................................................................. 56
4.9 Requirements of Law......................................................... 56
4.10 Taxes....................................................................... 57
4.11 Indemnity................................................................... 58
4.12 Payments Generally; Agents' Clawback........................................ 59
4.13 Sharing of Payments......................................................... 61
4.14 Computations; Allocation of Payments Post-Acceleration...................... 61
ARTICLE V CONDITIONS......................................................................... 63
5.1 Closing Conditions.......................................................... 63
5.2 Conditions to all Extensions of Credit...................................... 64
ARTICLE VI REPRESENTATIONS AND WARRANTIES.................................................... 65
6.1 Financial Condition......................................................... 65
6.2 No Change................................................................... 66
6.3 Organization; Existence; Compliance with Law................................ 66
6.4 Power; Authorization; Enforceable Obligations............................... 66
6.5 No Legal Bar................................................................ 66
6.6 No Material Litigation...................................................... 67
6.7 No Default.................................................................. 67
6.8 Ownership of Property; Liens................................................ 67
6.9 Intellectual Property....................................................... 67
6.10 No Burdensome Restrictions.................................................. 67
6.11 Taxes....................................................................... 67
6.12 ERISA....................................................................... 68
i
6.13 Governmental Regulations, Etc............................................... 68
6.14 Subsidiaries................................................................ 69
6.15 Purpose of Loans and Letters of Credit...................................... 69
6.16 Environmental Matters....................................................... 70
6.17 Solvency.................................................................... 70
6.18 Perfection of Security Interests in the Collateral.......................... 71
6.19 Perfection Information...................................................... 71
ARTICLE VII AFFIRMATIVE COVENANTS............................................................ 71
7.1 Information Covenants....................................................... 71
7.2 Preservation of Existence and Franchises.................................... 73
7.3 Books and Records........................................................... 73
7.4 Compliance with Law......................................................... 73
7.5 Payment of Taxes and Other Indebtedness..................................... 73
7.6 Insurance................................................................... 74
7.7 Maintenance of Property..................................................... 74
7.8 Use of Proceeds............................................................. 74
7.9 Audits/Inspections.......................................................... 74
7.10 Financial Covenants......................................................... 74
7.11 Maintenance of Designation Rights - National Welders Board of Directors..... 74
7.12 Additional Guarantors....................................................... 74
7.13 Pledged Assets.............................................................. 75
7.14 Receivables Financing Further Assurances.................................... 76
ARTICLE VIII NEGATIVE COVENANTS.............................................................. 76
8.1 Indebtedness................................................................ 76
8.2 Liens....................................................................... 77
8.3 Nature of Business.......................................................... 77
8.4 Consolidation, Merger, Amalgamation or Sale................................. 77
8.5 Investments................................................................. 78
8.6 Restricted Payments......................................................... 79
8.7 Payments of Indebtedness, Etc............................................... 80
8.8 Fiscal Year; Organizational Documents....................................... 80
8.9 Limitation on Restricted Actions............................................ 81
8.10 Issuance and Sale of Subsidiary Stock....................................... 81
8.11 No Further Negative Pledges................................................. 81
8.12 Transactions with Affiliates................................................ 81
ARTICLE IX EVENTS OF DEFAULT................................................................. 82
9.1 Events of Default........................................................... 82
9.2 Acceleration; Remedies...................................................... 84
ARTICLE X AGENCY PROVISIONS.................................................................. 85
10.1 Appointment and Authority................................................... 85
10.2 Rights as a Lender.......................................................... 86
10.3 Exculpatory Provisions...................................................... 86
10.4 Reliance by the Agents...................................................... 87
10.5 Delegation of Duties........................................................ 87
10.6 Resignation of Agents....................................................... 87
10.7 Non-Reliance on Agents and Other Lenders.................................... 88
10.8 No Other Duties; Etc........................................................ 88
10.9 U.S. Agent May File Proofs of Claim......................................... 89
10.10 Collateral and Guaranty Matters............................................. 89
ARTICLE XI MISCELLANEOUS..................................................................... 90
11.1 Notices and Other Communications; Facsimile Copies.......................... 90
ii
11.2 Right of Set-Off............................................................ 91
11.3 Benefit of Agreement........................................................ 91
11.4 No Waiver; Remedies Cumulative.............................................. 94
11.5 Payment of Expenses, Etc.................................................... 94
11.6 Amendments, Waivers and Consents............................................ 96
11.7 Counterparts................................................................ 97
11.8 Headings.................................................................... 97
11.9 Survival.................................................................... 97
11.10 Governing Law; Submission to Jurisdiction; Venue............................ 97
11.11 Severability................................................................ 99
11.12 Entirety.................................................................... 99
11.13 Binding Effect; Termination................................................. 99
11.14 Confidentiality............................................................. 100
11.15 Conflict.................................................................... 100
11.16 USA PATRIOT Act Notice...................................................... 100
11.17 Replacement of Lenders...................................................... 101
11.18 Designation as Senior Debt.................................................. 101
ARTICLE XII GUARANTY......................................................................... 101
12.1 The Guaranty................................................................ 101
12.2 Obligations Unconditional................................................... 102
12.3 Reinstatement............................................................... 103
12.4 Certain Additional Waivers.................................................. 104
12.5 Remedies.................................................................... 104
12.6 Rights of Contribution...................................................... 104
12.7 Guarantee of Payment; Continuing Guarantee.................................. 104
12.8 Collateral and Guarantor Release Date....................................... 104
iii
SCHEDULES AND EXHIBITS
Schedules
- ------------------
Schedule 1.1A Excluded Asset Dispositions
Schedule 1.1B Existing Canadian Letters of Credit
Schedule 1.1C Existing U.S. Letters of Credit
Schedule 1.1D National Welder Liens
Schedule 1.1E Liens
Schedule 2.1(a) Lenders and Commitments
Schedule 5.1(d) Legal Opinions
Schedule 6.14 Subsidiaries
Schedule 6.19 Perfection Information
Schedule 8.1 Indebtedness
Schedule 8.5 Investments
Schedule 11.1 Certain Notices
Exhibits
- ------------------
Exhibit 2.1(b)(i) Form of Notice of U.S. Borrowing
Exhibit 3.1(b)(i) Form of Notice of Canadian Borrowing
Exhibit 4.2 Form of Notice of Extension/Conversion
Exhibit 4.4 Form of New Commitment Agreement
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment and Assumption
iv
ELEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS ELEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January
14, 2005 (the "Credit Agreement"), is 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 from time
to time party hereto, the several lenders identified on the signature pages
hereto as Lenders and such other lenders as may from time to time become a party
hereto as Lenders (the "Lenders"), BANK OF AMERICA, N.A., as administrative
agent for the Lenders (in such capacity, the "U.S. Agent") and THE BANK OF NOVA
SCOTIA, as Canadian administrative agent for the Lenders (in such capacity, the
"Canadian Agent").
W I T N E S S E T H
WHEREAS, Airgas, the Canadian Borrowers and the Guarantors are parties to
a Tenth Amended and Restated Credit Agreement dated as of July 30, 2001 (as
amended, supplemented or otherwise modified from time to time until (but not
including) the date of this Credit Agreement, the "Existing Credit Agreement")
with the banks, financial institutions and other institutional lenders party
thereto, Bank of America, N.A., as United States administrative agent for such
lenders, and Canadian Imperial Bank of Commerce, as Canadian administrative
agent for such lenders.
WHEREAS, the parties to this Credit Agreement desire to amend the Existing
Credit Agreement as set forth herein and to restate the Existing Credit
Agreement in its entirety to read as follows.
WHEREAS, the Credit Parties have requested that the (i) U.S. Revolving
Lenders agree to extend credit to Airgas in an aggregate principal amount of up
to $308,000,000, (ii) U.S. Term Lenders agree to extend credit to Airgas in an
aggregate principal amount of up to $100,000,000 and (iii) Canadian Lenders
agree to extend credit to the Canadian Borrowers in an aggregate principal
amount of up to C$50,000,000, each for the purposes set forth in this Credit
Agreement. The Lenders have indicated their willingness to agree to extend
credit to Airgas and the Canadian Borrowers from time to time in such amount on
the terms and conditions of this Credit Agreement
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acceptance Fee" means an amount equal to the product of (a) the
Applicable Percentage for Bankers' Acceptances as of the date of acceptance; (b)
the aggregate Face Amount of Bankers' Acceptances accepted by a Canadian Lender
on the date of acceptance of the requested Bankers' Acceptances; and (c) a
1
fraction (i) the numerator of which is the term to maturity in days of such
Bankers' Acceptances, and (ii) the denominator of which is 365 days.
"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(b), the commitment of
such Lender in an aggregate principal amount up to the amount specified in such
New Commitment Agreement (i) to (A) make U.S. Revolving 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), and/or (ii) to make U.S. Term Loans in
accordance with the provisions of Section 2.5(a).
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the U.S. Agent or the Canadian Agent, as applicable.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person or (ii) directly or indirectly owning or holding
ten percent (10%) or more of the equity interest in such Person. For purposes of
this definition, "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agents" means the U.S. Agent and the Canadian Agent.
"Airgas" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
2
"Applicable Percentage" means, for purposes of calculating the applicable
rate for any day for any U.S. Base Rate Loan, any Eurodollar Loan or any
Canadian Base Rate Loan, the Acceptance Fee, the U.S. Unused Fee, the Canadian
Unused Fee, the issuance fee for standby U.S. Letters of Credit, the drawing fee
for trade U.S. Letters of Credit, the issuance fee for standby Canadian Letters
of Credit, the drawing fee for trade Canadian Letters of Credit, the appropriate
applicable percentage, corresponding to the higher of the long term credit
ratings of Airgas by S&P and Moody's in effect as of such date:
Applicable Percentages
- ----------------------------------------------------------------------------------------------------------------------------------
U.S. Revolving Loans
and U.S. Term Loans
--------------------- Issuance Fees for
standby U.S. Drawing Fees for
U.S. Letters of Credit trade U.S. Letters U.S. Unused
Long term Base Canadian and standby of Credit and Fee and
Pricing credit Eurodollar Rate Base Rate Bankers' Canadian Letters trade Canadian Canadian
Level rating Loans Loans Loans Acceptances of Credit Letters of Credit Unused Fee
- -------- --------- ---------- -------- --------- ---------- ------------------ ------------------ -----------
I BBB/Baa2 0.700% 0.00% 0.00% 0.700% 0.700% 0.350% 0.150%
or higher
BBB-
II /Baa3 0.825% 0.00% 0.00% 0.825% 0.825% 0.4125% 0.175%
III BB+/Ba1 0.950% 0.00% 0.00% 0.950% 0.950% 0.475% 0.200%
IV BB/Ba2 1.350% 0.350% 0.350% 1.350% 1.350% 0.675% 0.275%
V BB-/Ba3 1.750% 0.750% 0.750% 1.750% 1.750% 0.8750% 0.375%
or lower
In the event that the long term credit ratings of Airgas by S&P and
Moody's for any day differ by more than one Pricing Level, the Applicable
Percentage for such day shall be the appropriate applicable percentage
corresponding to the Pricing Level which is one Pricing Level higher (with
Pricing Level I begin the highest and Pricing Level V being the lowest) than the
Pricing Level corresponding to the lower of the long term credit ratings of
Airgas by S&P and Moody's in effect as of such date.
"Application Period" means, in respect of any Asset Disposition, the
period of 360 days (or such shorter period as provided for reinvestment of the
proceeds thereof under any Junior Financing Documentation) following the
consummation of such Asset Disposition.
"Approved Fund" means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Asset Disposition" means any disposition (including pursuant to an Asset
Exchange or a Sale and Leaseback Transaction and including any Involuntary
Disposition) of any or all of the Property (including without limitation the
Capital Stock of a Subsidiary) of any Consolidated Party whether by sale, lease,
licensing, transfer or otherwise; provided, however, that (i) the term "Asset
Disposition" shall be deemed to include any "Asset Sale" (or any comparable
term) under, and as defined in, any Junior Financing Documentation, and (ii) an
issuance of Capital Stock shall not constitute an Asset Disposition.
"Asset Disposition Prepayment Event" means, without duplication, (i) with
respect to any Asset Disposition (other than an Excluded Asset Disposition)
occurring on any date, if any, on which the Applicable Percentage is based on
"Pricing Level IV" or "Pricing Level V", the failure of the Credit Parties to
apply (or cause to be applied) the Net Cash Proceeds of such Asset Disposition
to Eligible Reinvestments during the Application Period for such Asset
Disposition and (ii) as long as the U.S. Term Loan is outstanding, the date five
(5) Business Days prior to the date on which a failure of the Credit
3
Parties to have applied the Net Cash Proceeds from any "Asset Sale" (or any
comparable term) under, and as defined in, any Junior Financing Documentation in
such a manner as to not create an obligation of Airgas to offer to purchase any
Subordinated Debt with any such Net Cash Proceeds.
"Asset Exchange" means, in connection with any Asset Disposition by a
Consolidated Party, any substantially contemporaneous exchange of Property of
such Consolidated Party for Property (that would otherwise constitute an
Eligible Reinvestment) of the other party to such Asset Disposition.
"Attributed Principal Amount" means, on any day, with respect to any
Securitization Transaction, the aggregate amount (with respect to such
transaction, the "Invested Amount") paid to, or borrowed by, such Person as of
such date under the Securitization Transaction, minus the aggregate amount
received by the applicable purchaser of the related Securitization Assets
(including, with respect to the Permitted Receivables Financing, the Receivables
Financier) and applied to the reduction of the Invested Amount under such
Securitization Transaction.
"BA Outstandings" means, at any time, the sum of the Face Amount of all
Bankers' Acceptances outstanding at such time.
"Bankers' Acceptance" means a draft (a) drawn by a Canadian Borrower under
the Canadian Revolving Commitment for acceptance by a Canadian Lender, (b)
denominated in Canadian Dollars and (c) issued and payable only in Canada.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code or the Bankruptcy and Insolvency Act of Canada, in any case, as
amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following with respect to such Person: (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
ordering the winding up or liquidation of its affairs; or (ii) a court or
governmental agency having jurisdiction in the premises shall enter a decree or
order appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property and such decree or order shall remain undismissed for a period of
sixty (60) consecutive days; or (iii) there shall be commenced against such
Person an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other action
for the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60) consecutive
days; or (iv) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or make any general
assignment for the benefit of creditors; or (v) such Person shall be unable to,
or shall admit in writing its inability to, pay its debts generally as they
become due.
"BNS" means The Bank of Nova Scotia and its successors.
"Borrowers" means a collective reference to each of Airgas and the
Canadian Borrowers.
4
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in Charlotte, North Carolina are authorized or required
by law to close, except that, (a) when used in connection with a Eurodollar
Loan, such day shall also be a day on which dealings between banks are carried
on in U.S. Dollar deposits in London, England, Charlotte, North Carolina and New
York, New York and (b) when used in connection with a Loan made by any of the
Canadian Lenders, the term Business Day shall not include any day on which
banking institutions in Toronto, Ontario are authorized by law or other
governmental actions to close.
"Canadian Agent" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Canadian Agent's Fee Letter" means that certain letter agreement, dated
as of the Closing Date, between the Canadian Agent and Airgas, as amended,
modified, restated or supplemented from time to time.
"Canadian Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to
the higher of (i) the fluctuating rate of interest per annum equal to the rate
of interest established and publicly announced by BNS, from time to time, as its
prime rate for Canadian Dollar commercial loans made in Canada (with each change
in such prime rate being effective on the date such change is publicly announced
as effective (it being understood and agreed that the such prime rate is a
reference rate used by BNS in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged on any extension of
credit by BNS to any debtor)) and (ii) CDOR for such day plus the Applicable
Percentage for Bankers' Acceptances.
"Canadian Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Canadian Base Rate.
"Canadian Borrowers" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Canadian Commitment Percentage" means, for any Canadian Lender, the
percentage identified as its Canadian Commitment Percentage on Schedule 2.1(a),
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3; provided, however, at any time
that any Canadian Swingline Loan is outstanding (except to the extent that the
Canadian Swingline Lender has demanded repayment of a particular Canadian
Swingline Loan by way of a Canadian Revolving Loan as provided in Section
3.2(b)), (i) the Canadian Commitment Percentage of the Canadian Swingline Lender
shall be reduced by an amount equal to the percentage amount of the Canadian
Revolving Committed Amount then comprised of outstanding Canadian Swingline
Loans and (ii) the Canadian Commitment Percentage of each other Canadian Lender
shall be increased by an amount equal to the product of (A) the amount
determined pursuant to clause (i) above multiplied by (B) the fraction
determined from the ratio that the Canadian Commitment Percentage of such
Canadian Lender bears to the total Canadian Commitment Percentages of all the
Canadian Lenders other than the Canadian Swingline Lender.
"Canadian Credit Parties" means a collective reference to the Canadian
Borrowers and the Canadian Subsidiary Guarantors, and "Canadian Credit Party"
means any one of them.
"Canadian Dollars" means and "C$" means dollars in lawful currency of
Canada.
"Canadian Guarantors" means collectively, Airgas, the U.S. Subsidiary
Guarantors and the Canadian Subsidiary Guarantors, and "Canadian Guarantor"
means any one of them.
5
"Canadian Issuing Lender" means BNS.
"Canadian Lenders" means those Lenders that have Canadian Revolving
Commitments and are identified as Lenders on the signature pages attached
hereto, together with their successors and assigns.
"Canadian Letter of Credit" means (i) any standby or trade letter of
credit issued by the Canadian Issuing Lender for the account of a Canadian
Borrower in accordance with the terms of Section 3.3 and (ii) any Existing
Canadian Letter of Credit.
"Canadian LOC Commitment" means the commitment of the Canadian Issuing
Lender to issue Canadian Letters of Credit in an aggregate face amount at any
time outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the Canadian LOC Committed Amount.
"Canadian LOC Committed Amount" shall have the meaning assigned to such
term in Section 3.3.
"Canadian LOC Documents" means, with respect to any Canadian Letter of
Credit, such Canadian Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Canadian Letter of Credit) governing or providing for
(i) the rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.
"Canadian LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Canadian Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Canadian Letters of Credit plus
(ii) the aggregate amount of all drawings under Canadian Letters of Credit
honored by the Canadian Issuing Lender but not theretofore reimbursed. For all
purposes of this Agreement, if on any date of determination a Canadian Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be "outstanding" in the amount so remaining available to be drawn.
"Canadian Obligations" means without duplication, (i) all of the
obligations of the Canadian Borrowers and the Canadian Guarantors, in their
capacity as such, to the Canadian Lenders, the Agents and the Collateral Agent,
whenever arising, under this Credit Agreement or any of the other Credit
Documents (including, but not limited to, any interest owed with respect to such
obligations which has accrued after the occurrence of a Bankruptcy Event with
respect to any Canadian Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code) and (ii) all liabilities and
obligations, whenever arising, owing from the Canadian Borrowers to any Canadian
Lender, or any affiliate of a Canadian Lender, arising under any Hedging
Agreement.
"Canadian Revolving Commitment" means, with respect to each Canadian
Lender, the commitment of such Canadian Lender in an aggregate principal amount
at any time outstanding of up to such Canadian Lender's Canadian Commitment
Percentage of the Canadian Revolving Committed Amount, (i) to make Canadian
Revolving Loans in accordance with the provisions of Section 3.1(a), (ii) to
purchase participation interests in Canadian Letters of Credit in accordance
with the provisions of Section 3.3(c) and (iii) to accept Bankers' Acceptances
in accordance with the provisions of Section 3.4(a).
"Canadian Revolving Loans" shall have the meaning assigned to such term in
Section 3.1(a).
"Canadian Revolving Committed Amount" shall have the meaning assigned to
such term in Section 3.1(a).
6
"Canadian Subsidiary" means a direct or indirect Subsidiary of Airgas
which is organized and existing under the laws of Canada or any province or
other political subdivision thereof.
"Canadian Subsidiary Guarantors" means each of the Persons identified as a
"Canadian Subsidiary Guarantor" on the signature pages hereto and each Person
which may hereafter guaranty the Canadian Obligations by its execution of a
Joinder Agreement pursuant to Section 7.12, together with their successors and
permitted assigns, and "Canadian Subsidiary Guarantor" means any one of them.
"Canadian Swingline Commitment" means the commitment of the Canadian
Swingline Lender to make Canadian Swingline Loans in an aggregate principal
amount at any time outstanding of up to the Canadian Swingline Committed Amount.
"Canadian Swingline Committed Amount" shall have the meaning assigned to
such term in Section 3.2(a).
"Canadian Swingline Lender" means BNS.
"Canadian Swingline Loan" means a loan made pursuant to and defined in
Section 3.2(a).
"Canadian Unused Fee" shall have the meaning assigned to such term in
Section 4.5(a)(ii).
"Capital Lease" means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is or should be accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States, the government of the Canada or any
agency or instrumentality thereof (to the extent that the full faith and credit
of the United States or Canada is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S. Dollar or
Canadian Dollar denominated time deposits and certificates of deposit of (1) any
Lender, (2) any United States or Canadian commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 (or C$800,000,000, as the
case may be) or (3) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase agreements
entered into by any Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 (or C$800,000,000, as the case may be) for direct obligations
issued by or fully guaranteed by the United States or Canada in which such
Person shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value of
at least 100% of the amount of the
7
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"CDOR" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) quoted by BNS as the
rate for its 30 day Canadian Dollar bankers' acceptances appearing on the
Reuters Screen CDOR page as of 10:00 A.M. (Toronto, Canada time) on such day,
provided that if such rate does not appear on the Reuters Screen CDOR page at
such time on such day, the rate for such day will be the average of all of the
bankers' acceptances discount rates posted on the Reuters Screen CDOR page for
30 day Canadian Dollar bankers' acceptances at such time on such day with
respect to the Schedule I chartered banks of Canada.
"Closing Date" means January 14, 2005.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" means a collective reference to all personal Property with
respect to which Liens in favor of the Collateral Agent are purported to be
granted pursuant to and in accordance with the terms of the Collateral
Documents.
"Collateral Agent" means Bank of America, in its capacity as collateral
agent under the Collateral Documents, together with any successors or assigns.
"Collateral and Guarantor Release Date" means the first date, if any, that
occurs after the Closing Date or after a Collateralization Date (a) on which the
Applicable Percentage is and has been based on "Pricing Level I" or "Pricing
Level II" for two consecutive fiscal quarters and (b) that the Guaranty
Obligations of all of the Guarantors of Airgas' obligations under the Medium
Term Note Indenture (and the Medium Term Notes) and all Junior Financing
Documentation have been released (or will be released contemporaneously upon the
release of the Guarantors hereunder) (it being understood that a Collateral and
Guarantor Release Date may occur more than once during the term of this Credit
Agreement). For purposes of clarification, the occurrence of a Collateral and
Guarantor Release Date shall not result in the release of Airgas from its
obligations under Article XII.
"Collateral Documents" means a collective reference to the Pledge
Agreement and any other pledge or similar agreement executed and delivered in
accordance with Section 7.13.
"Collateralization Date" means the first date, if any, following a
Collateral and Guarantor Release Date, on which either (a) the Applicable
Percentage is based on "Pricing Level III", "Pricing Level IV" or "Pricing Level
V" or (b) any Subsidiary of Airgas guarantees Airgas' obligations under the
Medium Term Note Indenture (or the Medium Term Notes) or any Junior Financing
Documentation (it being understood that a Collateralization Date may occur more
than once during the term of this Credit Agreement).
"Commitment" means (i) with respect to each U.S. Revolving Lender, the
U.S. Revolving Commitment of such Lender, (ii) with respect to each U.S. Term
Lender, the U.S. Term Loan Commitment of such Lender, (iii) with respect to each
Canadian Lender, the Canadian Revolving Commitment of such Lender, (iv) with
respect to the U.S. Swingline Lender, the U.S. Swingline Commitment, (v) with
respect to the Canadian Swingline Lender, the Canadian Swingline Commitment, (v)
with respect to the U.S. Issuing
8
Lenders, the U.S. LOC Commitment and (vi) with respect to the Canadian Issuing
Lender, the Canadian LOC Commitment.
"Competitive U.S. Bid" means an offer by a U.S. Revolving Lender to make a
Competitive U.S. Loan pursuant to the terms of Section 2.2.
"Competitive U.S. Bid Rate" means, as to any Competitive U.S. Bid made by
a U.S. Revolving Lender in accordance with the provisions of Section 2.2, the
fixed rate of interest offered by the U.S. Revolving Lender making the
Competitive U.S. Bid.
"Competitive U.S. Loan" means a loan made by a U.S. Revolving Lender in
its discretion pursuant to the provisions of Section 2.2.
"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 EBITDA" means, for any period, the sum of (i) Consolidated
Net Income for such period, plus (ii) an amount which, in the determination of
Consolidated Net Income for such period, has been deducted for (A) Consolidated
Interest Expense, (B) total federal, state, local and foreign income, value
added and similar taxes, (C) depreciation and amortization expense, (D) one-time
cash expenses incurred in connection with the refinancing of the Existing Credit
Agreement, (E) non-cash, non-recurring charges, (F) any losses realized upon the
disposition of Property other than the disposition of Inventory in the ordinary
course of business, (G) other non-cash expenses (excluding any non-cash expense
to the extent that it represents an accrual of or reserve for cash expenses in
any future period) and (H) one-time charges resulting from the permanent closure
of facilities, the termination of employees and other costs directly associated
with the Acquisition of the packaged gas business of The BOC Group, Inc. and the
financing thereof to the extent such charges were incurred not later than
January 31, 2006 and not exceeding $15,000,000 in the aggregate, minus (iii) an
amount which, in the determination of Consolidated Net Income for such period,
has been included for (A) non-cash gains during such period and (B) any gains
realized upon the disposition of Property other than the disposition of
Inventory in the ordinary course of business, all as determined in accordance
with GAAP. The portion of Consolidated EBITDA attributable to the packaged gas
business of The BOC Group, Inc. for each of the four full fiscal quarters
immediately preceding July 31, 2004 shall be reasonably satisfactory to the U.S.
Agent.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (i) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended on or prior to such date to (ii)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, for any period, the sum of (i)
interest expense (including the amortization of debt discount and premium, the
interest component under Capital Leases and Synthetic Leases) of the
Consolidated Parties on a consolidated basis and (ii) the implied interest
component and all other fees and expenses under the Permitted Receivables
Financing.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (i) Funded Indebtedness of the Consolidated Parties on a consolidated
basis as of such date to (ii) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended on or prior to such date.
"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)
9
to the extent not included in the amount determined pursuant to clause (i) above
and to the extent paid in cash to a Consolidated Party, equity earnings of
unconsolidated Affiliates for such period minus (iii) to the extent included in
the amount determined pursuant to clause (i) above and to the extent not paid in
cash to a Consolidated Party, equity earnings of Affiliates that are not
consolidated (on the consolidation basis) with Airgas for such period, all as
determined in accordance with GAAP.
"Consolidated Parties" means a collective reference to each of Airgas and
its Restricted Subsidiaries.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (i) the sum of (A) total Funded Indebtedness (other
than Funded Indebtedness of the types described in clauses (viii), (ix) and (x)
of the definition thereof) of the Consolidated Parties on a consolidated basis
as of such date less (B) the outstanding principal amount of Subordinated Debt
of the Consolidated Parties on a consolidated basis as of such date to (ii)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended on or prior to such date.
"Credit Documents" means a collective reference to this Credit Agreement,
the Collateral Documents, the Intercreditor Agreement, the U.S. LOC Documents,
the Canadian LOC Documents, Bankers' Acceptances, each Joinder Agreement, the
U.S. Agent's Fee Letter and the Canadian Agent's Fee Letter.
"Credit Parties" means a collective reference to each of Airgas, the
Canadian Borrowers and the Guarantors.
"Credit Party Obligations" means without duplication, (i) all of the
obligations of the Borrowers and the Guarantors to the Lenders, the Agents and
the Collateral Agent, whenever arising, under this Credit Agreement or any of
the other Credit Documents (including, but not limited to, any interest accruing
after the occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code) and (ii) all liabilities and obligations, whenever arising, owing from the
Borrowers to any Lender, or any affiliate of a Lender, arising under any Hedging
Agreement.
"Default" means any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in LOC Obligations or participations in
U.S. Swingline Loans or Canadian Swingline Loans required to be funded by it
hereunder or create Bankers' Acceptances as required by it hereunder, in each
case, within one Business Day of the date required hereunder, (b) has otherwise
failed to pay over to the applicable Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless such payment is the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Discount Rate" means (i) in respect of any Bankers' Acceptances to be
acquired pursuant to Section 3.4 by a Canadian Lender which is a Schedule I
chartered bank, the discount rate quoted by the principal office of such
Canadian Lender at approximately 10:00 A.M. (Toronto time) (or such other time
as may be practicable for the determination of the Discount Rate) as the
discount rate at which such Canadian Lender would purchase bankers' acceptances
accepted by such Canadian Lender and with a term to maturity the same as the
Bankers' Acceptances to be acquired by such Canadian Lender on the date of
acceptance of such Bankers' Acceptances, and (ii) in respect of any Bankers'
Acceptances to be acquired pursuant to Section 3.4 by a Canadian Lender which is
not a Schedule I chartered bank, the
10
lesser of (a) the discount rate quoted by the principal office of such Canadian
Lender at approximately 10:00 a.m (Toronto time) (or such other time as may be
practicable for the determination of the Discount Rate) as the discount rate at
which such Canadian Lender would purchase bankers' acceptances accepted by such
Canadian Lender and with a term to maturity the same as the Bankers' Acceptances
to be acquired by such Canadian Lender on the date of acceptance of such
Bankers' Acceptances and (b) the discount rate calculated pursuant to clause (i)
plus 7.5 basis points.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the Termination Date. Notwithstanding the preceding sentence,
(i) any Capital Stock that would constitute Disqualified Stock solely because
the holders of the Capital Stock have the right to require Airgas to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
will not constitute Disqualified Stock if the terms of such Capital Stock
provide that Airgas may not repurchase or redeem any such Capital Stock pursuant
to such provisions unless such repurchase or redemption complies with Section
8.6 of this Credit Agreement and (ii) the preferred stock issued under the
National Welders Joint Venture shall be deemed not to be "Disqualified Stock".
"Domestic Subsidiary" means any direct or indirect Subsidiary of Airgas
(other than a direct or indirect Subsidiary of a Foreign Subsidiary) which is
incorporated or organized under the laws of any State of the United States or
the District of Columbia.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the U.S. Agent (and in the case of any assignment by a Canadian
Lender, the Canadian Agent), (ii) in the case of any assignment of a U.S.
Revolving Commitment, each U.S. Issuing Lender and the U.S. Swingline Lender,
(iii) in the case of any assignment of a Canadian Revolving Commitment, the
Canadian Issuing Lender and the Canadian Swingline Lender, and (iv) unless an
Event of Default has occurred and is continuing, Airgas (each such approval in
clauses (i) through (iv) not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, "Eligible Assignee" shall not include Airgas
or any of Airgas' Affiliates or Subsidiaries.
"Eligible Reinvestment" means (i) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in the
same or a similar or ancillary line of business as Airgas and its Restricted
Subsidiaries were engaged in on the Closing Date (or any reasonable extensions
or expansions thereof) and (ii) any Permitted Acquisition. The term "Eligible
Reinvestment" shall not include any item which is not a permitted application of
proceeds of an "Asset Sale" (or any comparable term) under, and as defined in,
any Junior Financing Documentation.
"Environmental Laws" means any and all lawful and applicable Federal,
state, local, Canadian and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
11
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with
Airgas or any Subsidiary of Airgas within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes Airgas or any Subsidiary of
Airgas and which is treated as a single employer under Sections 414(b), (c),
(m), or (o) of the Code.
"Eurodollar Base Rate" means, for any Interest Period with respect to a
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the U.S.
Agent from time to time) at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period, for U.S. Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period. If such rate is not available at such time for any
reason, then the "Eurodollar Rate" for such Interest Period shall be the rate
per annum determined by the U.S. Agent to be the rate at which deposits in U.S.
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
"Eurodollar Loan" means any Loan bearing interest at a rate determined by
reference to the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the U.S. Agent to be equal
to the quotient obtained by dividing (a) the Eurodollar Base Rate for such
Eurodollar Loan for such Interest Period by (b) one minus the Eurodollar Reserve
Percentage for such Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System of the United States for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Eurodollar Rate for each outstanding Eurodollar
Loan shall be adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning assigned to such term in Section
9.1.
"Excluded Asset Disposition" means, with respect to any Consolidated
Party, any Asset Disposition consisting of (i) the sale, lease, license,
transfer or other disposition of inventory in the ordinary course of such
Consolidated Party's business, (ii) the sale, lease, license, transfer or other
disposition of obsolete machinery and equipment or machinery and equipment no
longer used or useful in the conduct of such Consolidated Party's business,
(iii) any sale, lease, license, transfer or other disposition of Property by
such Consolidated Party to any U.S. Credit Party, (iv) any sale, lease, license,
transfer or other disposition of Property by a Canadian Subsidiary to any
Canadian Credit Party, (v) any portion of an Asset Disposition by such
Consolidated Party constituting a Permitted Investment, (vi) if
12
such Consolidated Party is not a Credit Party, any sale, lease, license,
transfer or other disposition of Property by such Consolidated Party to any
Consolidated Party that is not a Credit Party, (viii) the sale or disposition of
Cash Equivalents for fair market value, (ix) the disposition of cash in
connection with a transaction permitted under the Credit Agreement, (x) any sale
of Securitization Assets by such Consolidated Party to the Receivables
Subsidiary in connection with the Permitted Receivables Financing, (xi) to the
extent constituting an Asset Disposition, the creation of any Permitted Lien,
and (xii) the sale of the assets identified on Schedule 1.1A; provided, however,
that the term "Excluded Asset Disposition" shall not include (A) any Asset
Disposition to the extent that any portion of the proceeds of such Asset
Disposition would be required under any Junior Financing Documentation to be
applied to permanently retire Indebtedness of the Consolidated Parties and (B)
any transfer of assets to any Person identified on Schedule 1.1A by a
Consolidated Party not identified on Schedule 1.1A to the extent such transfer
of assets was made in contemplation of an Asset Disposition permitted by clause
(xii) above.
"Executive Officer" means, in respect of any Person, the chief executive
officer, chief operating officer, treasurer or chief financial officer of such
Person.
"Existing Canadian Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount, name of
beneficiary and date of expiry on Schedule 1.1B hereto.
"Existing Credit Agreement" shall have the meaning assigned to such term
in the recitals hereof.
"Existing U.S. Letters of Credit" means the letters of credit described by
date of issuance, letter of credit number, undrawn amount, name of beneficiary
and date of expiry on Schedule 1.1C hereto.
"Face Amount" means, in respect of a Bankers' Acceptance, the amount
payable to the holder thereof on maturity.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the U.S. Agent.
"Foreign Subsidiary" means any direct or indirect Subsidiary of Airgas
which is not is incorporated or organized under the laws of any State of the
United States or the District of Columbia.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than trade debt incurred in
the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(iv) the implied principal component of all obligations of such Person under
Capital Leases, (v) all Guaranty Obligations of
13
such Person with respect to Funded Indebtedness of another Person, (vi) all net
obligations of such Person in respect of Hedging Agreements, (vii) the maximum
available amount of, and all unreimbursed drawings under, all standby letters of
credit or acceptances issued or created for the account of such Person
(provided, however, in connection with any calculation hereunder of Funded
Indebtedness of the Consolidated Parties on a consolidated basis, there shall be
excluded any standby letter of credit or acceptance (together with any
unreimbursed drawings under such letter of credit or acceptance) which supports
any Funded Indebtedness of any Consolidated Party that would otherwise be
included in such calculation), (viii) the principal portion of all obligations
of such Person under Synthetic Leases, (ix) all Disqualified Stock of such
Person, and (x) the outstanding Attributed Principal Amount under any
Securitization Transaction, and (xi) all Funded Indebtedness of others secured
by (or for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed. The Funded
Indebtedness of any Person (a) shall include the Funded Indebtedness of any
partnership or joint venture in which such Person is a general partner or joint
venturer to the extent that such Person is legally liable for such Funded
Indebtedness and (b) shall not include any Indebtedness of a Consolidated Party
owing to another Consolidated Party.
"GAAP" means generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3 hereof.
"Governmental Authority" means any Federal, state, provincial, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantors" means collectively, the U.S. Subsidiary Guarantors and the
Canadian Guarantors, and "Guarantor" means any one of them.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any Property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements to the extent
such agreements or arrangements constitute a legally binding monetary
obligation) for the benefit of any holder of Indebtedness of such other Person,
(iii) to lease or purchase Property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness, or (iv) to otherwise assure
or hold harmless the holder of such Indebtedness against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection agreement,
commodities purchase agreement or foreign currency exchange agreement.
"Immaterial Foreign Subsidiary" means, at any time, any Foreign Subsidiary
that does not (a) have total revenues for the most recently ended fiscal year in
excess of $5,000,000 and (b) together with the other Foreign Subsidiaries for
which the Credit Parties have not (i) delivered pledge or similar agreements
that are governed by the laws of the jurisdictions of organization of such
Foreign Subsidiaries and (ii) provided legal opinions of foreign counsel with
respect to such Foreign Subsidiaries in connection with the execution of Joinder
Agreements by such Foreign Subsidiaries and the pledge of the Capital Stock of
14
such Foreign Subsidiaries pursuant to the Collateral Documents, have aggregate
total revenues for the most recently ended fiscal year in excess of $15,000,000.
"Indebtedness" of any Person means, without duplication, (i) all Funded
Indebtedness of such Person, (ii) all Guaranty Obligations of such Person, (iii)
all obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business) and (iv) all obligations of such Person
under take-or-pay or similar arrangements or under commodities agreements. The
Indebtedness of any Person (a) shall include the Indebtedness of any partnership
or joint venture in which such Person is a general partner or joint venturer to
the extent that such Person is legally liable for such Indebtedness and (b)
shall not include any Indebtedness of a Consolidated Party owing to another
Consolidated Party.
"Intercreditor Agreement" means that certain Intercreditor Agreement dated
as of the Closing Date among the Agents and the Lenders.
"Interest Payment Date" means (i) as to any U.S. Base Rate Loan, the last
day of each March, June, September and December, the date of repayment of
principal of such Loan and the Termination Date, (ii) as to any Canadian
Revolving Loan, the first Business Day of each calendar month, the date of
repayment of principal of such Loan and the Termination Date and (iii) as to any
Eurodollar Loan, any Competitive U.S. Loan, any U.S. Swingline Loan or any
Canadian Swingline Loan, the last day of each Interest Period for such Loan, the
date of repayment of principal of such Loan and the Termination Date, and in
addition where the applicable Interest Period is more than 3 months, then also
on the date 3 months from the beginning of the Interest Period, and each 3
months thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day.
"Interest Period" means (i) as to any Eurodollar Loan, a period of one,
two, three, six or twelve month's duration, as Airgas may elect, commencing in
each case, on the date of the borrowing (including conversions, extensions and
renewals), (ii) as to any Competitive U.S. Loan, a period commencing in each
case on the date of the borrowing and ending on the date specified in the
applicable Competitive U.S. Bid whereby the offer to make such Competitive U.S.
Loan was extended (such ending date in any event to be not more than 180 days
from the date of the borrowing), (iii) as to any U.S. Swingline Loan, a period
commencing in each case on the date of the borrowing and ending on the date
agreed to by Airgas and the U.S. Swingline Lender in accordance with the
provisions of Section 2.4(b)(i) (such ending date in any event to be not more
than thirty (30) days from the date of borrowing) and (iv) as to any Canadian
Swingline Loan, a period commencing in each case on the date of the borrowing
and ending on the date agreed to by the applicable Canadian Borrower and the
Canadian Swingline Lender; provided, however, (A) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day (except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day), (B) no Interest Period shall
extend beyond the Termination Date, and (C) in the case of Eurodollar Loans,
where an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to end,
such Interest Period shall end on the last day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets (other than equipment, inventory and supplies in the ordinary course of
business and other than any acquisition of assets constituting a Consolidated
Capital Expenditure), Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities of such other
Person, (b) any deposit with, or advance, loan or other extension of
15
credit to, such Person (other than deposits made in connection with the purchase
of equipment, inventory and supplies in the ordinary course of business) or (c)
any other capital contribution to or investment in such Person, including,
without limitation, any Guaranty Obligations (including any support for a letter
of credit issued on behalf of such Person) incurred for the benefit of such
Person and any portion of an Asset Disposition (other than an Excluded Asset
Disposition) to such Person for consideration less than the fair market value of
the Property disposed in such transaction, but excluding any Restricted Payment
to such Person. Investments which are capital contributions or purchases of
Capital Stock which have a right to participate in the profits of the issuer
thereof shall be valued at the amount actually contributed or paid to purchase
such Capital Stock as of the date of such contribution or payment. Investments
which are loans, advances, extensions of credit or Guaranty Obligations shall be
valued at the principal amount of such loan, advance or extension of credit
outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guaranty Obligation.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of any
Consolidated Party.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Joinder Agreement" means a Joinder Agreement substantially in the form of
Exhibit 7.12 hereto, executed and delivered by a Person required to become a
Guarantor in accordance with the provisions of Section 7.12.
"Junior Financing Documentation" means (i) the Subordinated Note
Indentures, (ii) the Subordinated Notes and (iii) any other documentation
governing any Subordinated Debt.
"Lenders" means each Canadian Lender, each U.S. Revolving Lender and each
U.S. Term Lender and, as the context requires, the U.S. Issuing Lenders, the
Canadian Issuing Lender, the U.S. Swingline Lender and the Canadian Swingline
Lender, together with their successors and permitted assigns.
"Letter of Credit" means any U.S. Letter of Credit or any Canadian Letter
of Credit.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform Commercial Code
as adopted and in effect in the relevant jurisdiction, the Personal Property
Security Act (Ontario) or other similar recording or notice statute, and any
lease in the nature thereof).
"Loan" or "Loans" means the U.S. Revolving Loans and the U.S. Term Loans,
the Competitive U.S. Loans, the Canadian Revolving Loans, the BA Outstandings,
the U.S. Swingline Loans and/or the Canadian Swingline Loans, individually or
collectively, as appropriate.
"LOC Obligations" means the U.S. LOC Obligations and the Canadian LOC
Obligations.
"Material Adverse Effect" means a material adverse effect on (i) the
condition (financial or otherwise), operations, business, assets or liabilities
of the Consolidated Parties taken as a whole, (ii) the ability of the Credit
Parties taken as a whole to perform any material obligation under the Credit
Documents or (iii) the material rights and remedies of the Lenders under the
Credit Documents.
16
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Laws, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Medium Term Notes" means 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.
"Medium Term Note Indenture" means a collective reference to 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.
"Medium Term Noteholder" means any one of the holders from time to time of
the Medium Term Notes.
"Moody's" means Moody's Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as defined
in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which a Consolidated Party or any
ERISA Affiliate and at least one employer other than a Consolidated Party or any
ERISA Affiliate are contributing sponsors.
"National Welders" means National Welders Supply Company, Inc., a North
Carolina corporation.
"National Welders Joint Venture Agreement" means that certain joint
venture agreement dated June 28, 1996 by and among Airgas, National Welders,
J.A. Turner, Jr., Judith Carpenter, J.A. Turner, III and Linerieux B. Turner.
"National Welders Liens" means the liens and security interests on the
assets of National Welders as described on Schedule 1.1D hereto.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by any Consolidated Party in respect of any Asset Disposition, net of
(a) direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions), (b) taxes paid or payable as a
result thereof or in connection therewith or attributable thereto and (c) the
amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking
senior to any Lien of the U.S. Agent) on the related Property; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
or Cash Equivalents received upon the sale or other disposition of any non-cash
consideration received by any such Consolidated Party in any Asset Disposition.
In addition, the "Net Cash Proceeds" of any Asset Disposition shall include any
other amounts which constitute "Net Proceeds" (or any comparable term) of such
transaction under, and as defined in, any Junior Financing Documentation.
"New Commitment Agreement" shall have the meaning assigned to such term in
Section 4.4(b).
"Non-Excluded Taxes" shall have the meaning assigned to such term in
Section 4.10.
17
"Notice of Borrowing" means (a) in the case of U.S. Revolving Loans or the
U.S. Term Loan, a written notice of borrowing in substantially the form of
Exhibit 2.1(b)(i), as required by Section 2.1(b)(i) or Section 2.5(b), as
applicable, or (b) in the case of Canadian Revolving Loans, a written notice of
borrowing in substantially the form of Exhibit 3.1(b)(i).
"Notice of Extension/Conversion" means the written notice of extension or
conversion in substantially the form of Exhibit 4.2, as required by Section 4.2.
"Operating Accounts" shall have the meaning assigned to such term in
Section 3.2(a).
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"Participant" shall have the meaning assigned to such term in Section
11.3(d).
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means an Acquisition by Airgas or any Subsidiary
of Airgas permitted pursuant to the terms of Section 8.5(i).
"Permitted Investments" means, at any time, Investments by the
Consolidated Parties permitted to exist at such time pursuant to the terms of
Section 8.5.
"Permitted Liens" means:
(i) Liens arising under the Collateral Documents;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or Liens
for taxes being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed
by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens
secure only amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the same or are
being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet subject
to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by the Consolidated Parties in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
18
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall have been discharged within 30
days after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of
the encumbered Property for its intended purposes;
(vii) Liens existing as of the Closing Date and set forth on
Schedule 1.1E;
(viii) Liens on Property of any Person securing purchase money
Indebtedness, Capital Leases and Synthetic Leases of such Person, provided
that (a) any such Lien attaches to such Property (and only such Property)
concurrently with or within 90 days after the incurrence of the
Indebtedness secured thereby; (b) the Indebtedness secured thereby shall
not exceed the purchase price of the asset(s) financed and (c) the
aggregate principal amount of all Indebtedness secured thereby does not
exceed $25,000,000;
(ix) Liens on Property of any Person securing Indebtedness (other
than purchase money Indebtedness and obligations under Capital Leases or
Synthetic Leases) assumed or acquired by the Consolidated Parties in
connection with a Permitted Acquisition, provided that (a) no such Lien
shall at any time be extended to or cover any Property other than the
Property subject thereto on the date the related Permitted Acquisition is
consummated, (b) the Indebtedness secured by such Lien was not created in
anticipation of the related Permitted Acquisition and (c) the aggregate
principal amount of all Indebtedness secured thereby does not exceed
$50,000,000;
(x) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(xi) any interest of title of a lessor under, and Liens arising from
Uniform Commercial Code financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to, leases
permitted by this Credit Agreement;
(xii) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(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;
(xiv) Liens in favor of the Receivables Subsidiary or Receivables
Financier created or deemed to exist in connection with the Permitted
Receivables Financing (including any related filings of any financing
statements), but only to the extent that any such Lien relates to the
Securitization Assets actually sold, contributed, financed or otherwise
conveyed or pledged pursuant to such transaction; and
(xv) other Liens not described above, provided that such Liens do
not secure obligations in excess of $25,000,000 at any one time
outstanding.
"Permitted Receivables Financing" means that certain Securitization
Transaction pursuant to the Receivables Purchase Agreement dated as of December
19, 2002 among the Receivables Subsidiary, Airgas, the Amended and Restated
Receivables Financiers party thereto and PNC Bank, National
19
Association, as administrator, as such agreement has been amended, modified,
extended, replaced, restated or substituted from time to time prior to the
Closing Date or as such agreement may hereafter be amended, modified, extended,
replaced, restated or substituted in accordance with the terms of this Credit
Agreement; provided that (i) the aggregate Attributed Principal Amount for such
Securitization Transaction shall not at any time exceed $300,000,000, (ii) such
Securitization Transaction shall not involve any recourse to any Consolidated
Party for any reason other than (A) repurchases of non-eligible receivables and
(B) indemnifications for losses other than credit losses related to the
receivables sold in such financing and (iii) the documentation for such
Securitization Transaction shall not be amended or modified, in any way that is
adverse to Airgas or the Lenders in any material respect, without the prior
approval of the U.S. Agent.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which Airgas, any
Subsidiary of Airgas or any ERISA Affiliate is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the Amended and Restated Pledge Agreement dated
as of the Closing Date among the Collateral Agent and the U.S. Credit Parties,
as amended, modified, restated or supplemented from time to time.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
principles set forth in the second paragraph of Section 1.3) compliance with
each of the financial covenants set forth in Section 7.10 in respect of a
proposed transaction, that such transaction shall be deemed to have occurred as
of the first day of the four fiscal-quarter period ending as of the most recent
fiscal quarter end preceding the date of such transaction with respect to which
the U.S. Agent has received the Required Financial Information. As used herein,
"transaction" shall mean (i) any incurrence or assumption of Indebtedness as
referred to in Section 8.1(a)(iv), (ii) any Asset Disposition as referred to in
Section 8.4(b), (iii) any Acquisition as referred to in Section 8.5(i) and (iv)
any Restricted Payment as referred to in Section 8.6(iii). In connection with
any calculation of the financial covenants set forth in Section 7.10 upon giving
effect to a transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any
incurrence or assumption of Indebtedness as referred to in Section
8.1(a)(iv), any Indebtedness which is retired in connection with such
incurrence or assumption shall be excluded and deemed to have been retired
as of the first day of the applicable period;
(B) for purposes of any such calculation in respect of any Asset
Disposition as referred to in Section 8.4(b), (1) income statement items
(whether positive or negative) attributable to the Property disposed of
shall be excluded and (2) any Indebtedness which is retired in connection
with such transaction shall be excluded and deemed to have been retired as
of the first day of the applicable period;
(C) for purposes of any such calculation in respect of any
Acquisition as referred to in Section 8.5(i), (1) any Indebtedness
incurred by any Consolidated Party in connection with such transaction (x)
shall be deemed to have been incurred as of the first day of the
applicable period and (y) if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at the relevant
date of
20
determination, (2) income statement items (whether positive or negative)
attributable to the Person or Property acquired shall be included
beginning as of the first day of the applicable period and (3) pro forma
adjustments may be included to the extent that such adjustments meet the
requirements of Regulation S-X under the Securities Act of 1933, as
amended, and all other accounting rules and regulations of the SEC
promulgated thereunder; and
(D) for purposes of any such calculation in respect of any
Restricted Payment as referred to in Section 8.6(iii), (1) any
Indebtedness incurred by any Consolidated Party in connection with such
transaction (x) shall be deemed to have been incurred as of the first day
of the applicable period and (y) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the applicable
period for purposes of this definition determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination.
"Pro Forma Compliance Certificate" means a certificate of an Executive
Officer of Airgas delivered to the U.S. Agent in connection with (i) any
incurrence, assumption or retirement of Indebtedness as referred to in Section
8.1(a)(iv), (ii) any Asset Disposition as referred to in Section 8.4(b), (iii)
any Acquisition as referred to in Section 8.5(i) or (iv) any Restricted Payment
as referred to in Section 8.6(iii), as applicable, and containing reasonably
detailed calculations, upon giving effect to the applicable transaction on a Pro
Forma Basis, of the Consolidated Leverage Ratio and the Consolidated Interest
Coverage Ratio as of the most recent fiscal quarter end preceding the date of
the applicable transaction with respect to which the U.S. Agent shall have
received the Required Financial Information.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate U.S. Swingline Loan,
the fixed percentage rate per annum offered by the U.S. Swingline Lender and
accepted by Airgas with respect to such U.S. Swingline Loan as provided in
accordance with the provisions of Section 2.4.
"Quoted Rate U.S. Swingline Loan" means a U.S. Swingline Loan bearing
interest at a Quoted Rate.
"Receivables Financier" means any of the "Conduit Purchasers" or "Related
Committed Purchasers" as such terms are defined in the documents governing the
Permitted Receivables Financing.
"Receivables Subsidiary" means (i) Radnor Funding Corp., a Delaware
corporation, and (ii) any other Subsidiary or Affiliate of Airgas to which any
Consolidated Party sells, contributes or otherwise conveys any Securitization
Assets in connection with the Permitted Receivables Financing.
"Redemption Obligation" means the contingent liability of any Consolidated
Party with respect to cash redemption obligations relating to any Capital Stock
issued by a Consolidated Party to any officer, director, shareholder or other
principal of any Subsidiary created or acquired after the Closing Date.
"Regulation D, U, or X" means Regulation D, U or X, respectively, of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
21
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Materials of Environmental Concern).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the post-event notice requirement is
waived under subsections .13, .14, .18, .19, or .20 of PBGC Reg. Section 2615.
"Required Canadian Lenders" means, at any time, Lenders holding in the
aggregate more than 50% of (a) the unfunded Commitments denominated in Canadian
Dollars and the outstanding Loans denominated in Canadian Dollars, Canadian LOC
Obligations and participations therein or (b) if the Commitments denominated in
Canadian Dollars have been terminated, the outstanding Loans denominated in
Canadian Dollars, Canadian LOC Obligations and participations therein. The
unfunded Commitments of, and the outstanding Canadian Obligations held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Canadian Lenders.
"Required Financial Information" means, with respect to the last day of
any fiscal quarter of Airgas, (i) the financial statements of the Consolidated
Parties required to be delivered pursuant to Section 7.1(a) or (b) for the
fiscal period or quarter ending as of such date, and (ii) the certificate of an
Executive Officer of Airgas required by Section 7.1(c) to be delivered with the
financial statements described in clause (i) above.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than 50% of (a) the unfunded Commitments and the outstanding Loans (other
than Competitive U.S. Loans at any time prior to the termination of the U.S.
Revolving Commitments), LOC Obligations and participations therein or (b) if the
Commitments have been terminated, the outstanding Loans, LOC Obligations and
participations therein. The unfunded Commitments of, and the outstanding Credit
Party Obligations held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Required U.S. Lenders" means, at any time, Lenders holding in the
aggregate more than 50% of (a) the unfunded Commitments denominated in U.S.
Dollars and the outstanding Loans denominated in U.S. Dollars (other than
Competitive U.S. Loans at any time prior to the termination of the U.S.
Revolving Commitments), U.S. LOC Obligations and participations therein or (b)
if the Commitments denominated in U.S. Dollars have been terminated, the
outstanding Loans denominated in U.S. Dollars, U.S. LOC Obligations and
participations therein. The unfunded Commitments of, and the outstanding Credit
Party Obligations held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required U.S. Lenders.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property is subject.
"Restricted Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Airgas or any of
its Subsidiaries, now or hereafter outstanding, (ii) any redemption (including,
without limitation, in connection with any Redemption Obligation), retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Airgas or any of its
Subsidiaries, now or hereafter outstanding or (iii) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or other rights
to acquire
22
shares of any class of stock of Airgas or any of its Subsidiaries, now or
hereafter outstanding. With respect to any Restricted Payment that is permitted
by this Credit Agreement to be made (i) after demonstrating compliance with the
financial covenants set forth in Section 7.10 on a Pro Forma Basis and (ii) so
long as no Default or Event of Default exists at the time of such Restricted
Payment or would result upon giving effect thereto, then solely for purposes of
Section 8.6(iii), the amount of such Restricted Payment shall be deemed reduced
(to an amount not less than zero) by an amount equal to the net cash proceeds
received by Airgas from any issuances of Capital Stock occurring after the
Closing Date.
"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.
"S&P" means Standard & Poor's Ratings Services Group, a division of The
McGraw-Hill Companies, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (a) which such Consolidated Party has sold
or transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease.
"Securitization Assets" means any accounts or trade receivable, notes
receivable, rights to future lease payments or residuals or capital, or any
other asset or a portion or interest therein that is or could be securitized,
together with certain related property relating thereto and the right to
collections thereon, which are subject to a Securitization Transaction.
"Securitization Transaction" means any transaction or series of
transactions pursuant to which a Person may sell, convey or otherwise transfer
to (i) a Subsidiary or Affiliate, or (ii) any other Person, or may grant a
security interest in, any Securitization Assets (or any portion or interest
therein) of such Person, including, without limitation, any sale, lease, whole
loan sale, secured loan or other transfer.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subordinated Debt" means (i) any Indebtedness evidenced and governed by
the Subordinated Note Indentures and the Subordinated Notes, including any
guarantees thereof by any Credit Party, and (ii) any other Indebtedness of
Airgas, including any guarantees thereof by any Credit Party that is
contractually subordinated to the Credit Party Obligations.
"Subordinated Note" means any one of (i) the 9.125% notes due 2011 or (ii)
the 6.25% notes due 2014, issued by Airgas in favor of the Subordinated
Noteholders pursuant to the respective Subordinated Note Indenture, as such
Subordinated Notes may be amended, modified, exchanged as contemplated by the
Subordinated Note Indentures, restated or supplemented and in effect from time
to time in accordance with the terms hereof.
"Subordinated Note Indentures" means (i) the Indenture, dated as of July
30, 2001, and (ii) the Indenture, dated as of March 8, 2004, by and among
Airgas, the guarantors named therein and The Bank of
23
New York, as trustee, as each Subordinated Note Indenture may be amended,
modified, restated or supplemented and in effect from time to time in accordance
with the terms hereof.
"Subordinated Noteholder" means any one of the holders from time to time
of the Subordinated Notes.
"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.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease under GAAP.
"Termination Date" means January 14, 2010.
"Termination Event" means (i) with respect to any Plan, the occurrence of
a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by Airgas, any
Subsidiary of Airgas or any ERISA Affiliate from a Multiple Employer Plan during
a plan year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the
institution of proceedings to terminate or the actual termination of a Plan by
the PBGC under Section 4042 of ERISA; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; or (vi) the complete or
partial withdrawal of any Consolidated Party or any ERISA Affiliate from a
Multiemployer Plan.
"U.S. Agent" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
"U.S. Agent's Fee Letter" means that certain letter agreement, dated as of
December 14, 2004, between the U.S. Agent and Airgas, as amended, modified,
supplemented or replaced from time to time.
"U.S. Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
24
"U.S. Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the U.S. Base Rate.
"U.S. Credit Parties" shall mean a collective reference to Airgas and the
U.S. Subsidiary Guarantors, and "U.S. Credit Party" shall mean any one of them.
"U.S. Dollars" and "$" means dollars in lawful currency of the United
States.
"U.S. Issuing Lender" means, with respect to a particular U.S. Letter of
Credit, (i) The Bank of New York, in its capacity as issuer of such U.S. Letter
of Credit or (ii) such other U.S. Revolving Lender selected by Airgas (upon
notice to the U.S. Agent) from time to time to issue such U.S. Letter of Credit.
"U.S. Letter of Credit" means (i) any standby or trade letter of credit
issued by the U.S. Issuing Lender for the account of Airgas in accordance with
the terms of Section 2.3 and (ii) any Existing U.S. Letter of Credit.
"U.S. LOC Commitment" means the commitment of the U.S. Issuing Lender to
issue U.S. Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to the
U.S. LOC Committed Amount.
"U.S. LOC Committed Amount" shall have the meaning assigned to such term
in Section 2.3.
"U.S. LOC Documents" means, with respect to any U.S. Letter of Credit,
such U.S. Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such U.S. Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral security
for such obligations.
"U.S. LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under U.S. Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such U.S. Letters of Credit plus (ii)
the aggregate amount of all drawings under U.S. Letters of Credit honored by the
U.S. Issuing Lender but not theretofore reimbursed. For all purposes of this
Credit Agreement, if on any date of determination a U.S. Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to
be "outstanding" in the amount so remaining available to be drawn
"U.S. Revolving Commitment" means, with respect to each U.S. Revolving
Lender, the commitment of such U.S. Revolving Lender in an aggregate principal
amount at any time outstanding of up to such U.S. Revolving Lender's U.S.
Revolving Commitment Percentage of the U.S. Revolving Committed Amount, (i) to
make U.S. Revolving Loans in accordance with the provisions of Section 2.1(a),
(ii) to purchase participation interests in U.S. Letters of Credit in accordance
with the provisions of Section 2.3(c), (iii) to purchase participation interests
in the U.S. Swingline Loans in accordance with the provisions of Section
2.4(b)(iii).
"U.S. Revolving Commitment Percentage" means, for any U.S. Revolving
Lender, the percentage identified as its U.S. Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any
increase in the U.S. Revolving Committed Amount pursuant to Section 4.4(b) or
any assignment made in accordance with the provisions of Section 11.3.
25
"U.S. Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.1(a).
"U.S. Revolving Lenders" means (i) those Lenders that have U.S. Revolving
Commitments and are identified as Lenders on the signature pages attached hereto
and (ii) any Person which becomes a U.S. Revolving Lender by executing a New
Commitment Agreement pursuant to Section 4.4(b), together with their successors
and assigns.
"U.S. Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
"U.S. Subsidiary Guarantors" means each of the Persons identified as a
"U.S. Subsidiary Guarantor" on the signature pages hereto and each Person which
may hereafter guaranty the Credit Party Obligations by its execution of a
Joinder Agreement pursuant to Section 7.12, together with their successors and
permitted assigns, and "U.S. Subsidiary Guarantor" means any one of them.
"U.S. Swingline Commitment" means the commitment of the U.S. Swingline
Lender to make U.S. Swingline Loans in an aggregate principal amount at any time
outstanding of up to the U.S. Swingline Committed Amount.
"U.S. Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.4(a).
"U.S. Swingline Lender" means Bank of America.
"U.S. Swingline Loan" means a loan made pursuant to and defined in Section
2.4(a).
"U.S. Term Lenders" means (i) those Lenders that have U.S. Term Loan
Commitments and are identified as Lenders on the signature pages attached hereto
and (ii) any Person which becomes a U.S. Term Lender by executing a New
Commitment Agreement pursuant to Section 4.4(b), together with their successors
and assigns.
"U.S. Term Loan" shall have the meaning assigned to such term in Section
2.5(a).
"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 on Schedule 2.1(a) or in the New Commitment Agreement executed by such
U.S. Term Lender.
"U.S. Term Loan Committed Amount" shall have the meaning assigned to such
term in Section 2.5(a).
"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 11.3 or as the result of an increase
in the amount of the U.S. Term Loan Committed Amount pursuant to Section 4.4(b).
"U.S. Unused Fee" shall have the meaning assigned to such term in Section
4.5(a)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or
26
persons performing similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a contingency.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis; provided, however, that calculations of the implied principal component
of all obligations under any Synthetic Lease or the implied interest component
of any rent paid under any Synthetic Lease shall be made by Airgas in accordance
with accepted financial practice and consistent with the terms of such Synthetic
Lease. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 7.1 hereof, consistent with the financial statements as at March 31,
2004); provided, however, if (a) Airgas shall object to determining such
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Agents or the Required Lenders shall so object in writing within 30 days
after delivery of such financial statements, then such calculations shall be
made on a basis consistent with the most recent financial statements delivered
by Airgas to the Lenders as to which no such objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made under the financial covenants set forth in
Section 7.10 (including without limitation for purposes of the definition of
"Pro Forma Basis" set forth in Section 1.1), (i) after consummation of any Asset
Disposition (A) income statement items (whether positive or negative) and
capital expenditures attributable to the Property disposed of shall be excluded
to the extent relating to any period occurring prior to the date of such
transaction and (B) Indebtedness which is retired shall be excluded and deemed
to have been retired as of the first day of the applicable period and (ii) after
consummation of any Acquisition (A) income statement items (whether positive or
negative) and capital expenditures attributable to the Person or Property
acquired shall, to the extent not otherwise included in such income statement
items for the Consolidated Parties in accordance with GAAP or in accordance with
any defined terms set forth in Section 1.1, be included to the extent relating
to any period applicable in such calculations, (B) to the extent not retired in
connection with such Acquisition, Indebtedness of the Person or Property
acquired shall be deemed to have been incurred as of the first day of the
applicable period and (C) pro forma adjustments may be included to the extent
that such adjustments meet the requirements of Regulation S-X under the
Securities Act of 1933, as amended, and all other accounting rules and
regulations of the SEC promulgated thereunder.
ARTICLE II
U.S. DOLLAR CREDIT FACILITIES
2.1 U.S. REVOLVING LOANS.
27
(a) U.S. Revolving Commitment. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein, each
U.S. Revolving Lender severally agrees to make available to Airgas such U.S.
Revolving Lender's U.S. Revolving Commitment Percentage of revolving credit
loans requested by Airgas in U.S. Dollars ("U.S. Revolving Loans") from time to
time from the Closing Date until the Termination Date, or such earlier date as
the U.S. Revolving Commitments shall have been terminated as provided herein for
the purposes hereinafter set forth; provided, however, that the aggregate
principal amount of outstanding U.S. Revolving Loans shall not exceed THREE
HUNDRED EIGHT MILLION U.S. DOLLARS ($308,000,000) (as such aggregate maximum
amount may be increased or reduced from time to time as provided in Section 4.4,
the "U.S. Revolving Committed Amount"); provided, further, (i) with regard to
each U.S. Revolving Lender individually, such U.S. Revolving Lender's
outstanding U.S. Revolving Loans shall not exceed such U.S. Revolving Lender's
U.S. Revolving Commitment Percentage of the U.S. Revolving Committed Amount and
(ii) with regard to the U.S. Revolving Lenders collectively, the aggregate
principal amount of outstanding U.S. Revolving Loans plus the aggregate
principal amount of outstanding Competitive U.S. Loans plus the aggregate
principal amount of outstanding U.S. Swingline Loans plus U.S. LOC Obligations
outstanding shall not exceed the U.S. Revolving Committed Amount. U.S. Revolving
Loans may consist of U.S. Base Rate Loans or Eurodollar Loans, or a combination
thereof, as Airgas may request, and may be repaid and reborrowed in accordance
with the provisions hereof; provided, however, that no more than 11 Eurodollar
Loans shall be outstanding hereunder at any time. 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. U.S. Revolving Loans hereunder may be repaid
and reborrowed in accordance with the provisions hereof.
(b) U.S. Revolving Loan Borrowings.
(i) Notice of Borrowing. Airgas (by its duly authorized officers or
representatives) shall request a U.S. Revolving Loan borrowing by written
notice (or telephone notice promptly confirmed in writing) to the U.S.
Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing in the case of U.S. Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a U.S. Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of U.S. Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If Airgas shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period
in the case of a Eurodollar Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (II) the type of U.S.
Revolving Loan requested, then such notice shall be deemed to be a request
for a U.S. Base Rate Loan hereunder. The U.S. Agent shall give notice to
each U.S. Revolving Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.1(b)(i), specifying the contents
thereof and each such U.S. Revolving Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or U.S. Base Rate Loan
that is a U.S. Revolving Loan shall be in a minimum aggregate principal
amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof (or the remaining amount of the U.S. Revolving Committed Amount,
if less).
(iii) Advances. Each U.S. Revolving Lender will make its U.S.
Revolving Commitment Percentage of each U.S. Revolving Loan borrowing
available to the U.S. Agent for the account of Airgas by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the
28
applicable Notice of Borrowing in U.S. Dollars and in funds immediately
available to the U.S. Agent. Such borrowing will then be made available to
Airgas by the U.S. Agent in like funds as received by the U.S. Agent by
(A) crediting the account of Airgas on the books of the U.S. Agent with
the amount of such funds or (B) wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to)
the U.S. Agent by Airgas.
(c) Repayment. Airgas promises to pay the principal amount of all U.S.
Revolving Loans in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 4.1,
(i) U.S. Base Rate Loans. During such periods as U.S. Revolving
Loans shall be comprised in whole or in part of U.S. Base Rate Loans, such
U.S. Base Rate Loans shall bear interest at a per annum rate equal to the
U.S. Base Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as U.S. Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus the Applicable Percentage.
Airgas promises to pay interest on U.S. Revolving Loans in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein).
2.2 COMPETITIVE U.S. LOAN SUBFACILITY.
(a) Competitive U.S. Loans. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, Airgas may,
from time to time from the Closing Date until the Termination Date, request and
each U.S. Revolving Lender may, in its sole discretion, agree to make,
Competitive U.S. Loans in U.S. Dollars to Airgas; provided, however, that (i)
the aggregate principal amount of outstanding Competitive U.S. Loans shall not
at any time exceed FIFTY MILLION U.S. DOLLARS ($50,000,000) and (ii) the sum of
the aggregate principal amount of outstanding U.S. Revolving Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding shall not at any time exceed the U.S. Revolving
Committed Amount. Each Competitive U.S. Loan shall be not less than $1,000,000
in the aggregate and integral multiples of $500,000 in excess thereof (or the
remaining portion of the U.S. Revolving Committed Amount, if less).
(b) Competitive U.S. Bid Requests. Airgas (by its duly authorized officers
or representatives) may solicit by making a written, telefax or telephonic
request to all of the U.S. Revolving Lenders for a Competitive U.S. Loan. To be
effective, such request must be received by each of the U.S. Revolving Lenders
by such time as determined by each such U.S. Revolving Lender in accordance with
such U.S. Revolving Lender's customary practices (in any event not to be later
than 12:00 NOON (Charlotte, North Carolina time)) on the date of the requested
borrowing and must specify (i) that a Competitive U.S. Loan is requested, (ii)
the amount of such Competitive U.S. Loan and (iii) the Interest Period for such
Competitive U.S. Loan.
(c) Competitive U.S. Bids. Upon receipt of a request by Airgas for a
Competitive U.S. Loan, each U.S. Revolving Lender may, in its sole discretion,
submit a Competitive U.S. Bid containing an offer to make a Competitive U.S.
Loan in an amount up to the amount specified in the related request for
Competitive U.S. Loans. Such Competitive U.S. Bid shall be submitted to Airgas
by telephone notice by such time as determined by such U.S. Revolving Lender in
accordance with such U.S. Revolving Lender's customary practices (in any event
not to be later than 1:00 P.M. (Charlotte, North Carolina time)) on the
29
date of the requested Competitive U.S. Loan. Competitive U.S. Bids so made shall
be irrevocable. Each Competitive U.S. Bid shall specify (i) the date of the
proposed Competitive U.S. Loan, (ii) the maximum and minimum principal amounts
of the Competitive U.S. Loan for which such offer is being made (which may be
for all or a part of (but not more than) the amount requested by Airgas), (iii)
the applicable Competitive U.S. Bid Rate, and (iv) the applicable Interest
Period.
(d) Acceptance of Competitive U.S. Bids. Airgas (by its duly authorized
officers or representatives) may, before such time as determined by the
applicable U.S. Revolving Lender in accordance with such U.S. Revolving Lender's
customary practices (in any event until 2:00 P.M. (Charlotte, North Carolina
time)) on the date of the requested Competitive U.S. Loan, accept any
Competitive U.S. Bid by giving the applicable U.S. Revolving Lender and the U.S.
Agent telephone notice (immediately confirmed in writing) of (i) the U.S.
Revolving Lender or U.S. Revolving Lenders whose Competitive U.S. Bid(s) is/are
accepted, (ii) the principal amount of the Competitive U.S. Bid(s) so accepted
and (iii) the Interest Period of the Competitive U.S. Bid(s) so accepted. Airgas
may accept any Competitive U.S. Bid in whole or in part; provided, however, that
(a) the principal amount of each Competitive U.S. Loan may not exceed the
maximum amount offered in the Competitive U.S. Bid and may not be less than the
minimum amount offered in the Competitive U.S. Bid, (b) the principal amount of
each Competitive U.S. Loan may not exceed the total amount requested pursuant to
subsection (a) above, (c) Airgas shall not accept a Competitive U.S. Bid made at
a particular Competitive U.S. Bid Rate if it has decided to reject a Competitive
U.S. Bid made at a lower Competitive U.S. Bid Rate and (d) if Airgas shall
accept a Competitive U.S. Bid or Bids made at a particular Competitive U.S. Bid
Rate but the amount of such Competitive U.S. Bid or Bids shall cause the total
amount of Competitive U.S. Bids to be accepted by Airgas to exceed the total
amount requested pursuant to subsection (a) above, then Airgas shall accept a
portion of such Competitive U.S. Bid or Bids in an amount equal to the total
amount requested pursuant to subsection (a) above less the amount of other
Competitive U.S. Bids accepted with respect to such request, which acceptance,
in the case of multiple Competitive U.S. Bids at the same Competitive U.S. Bid
Rate, shall be made pro rata in accordance with each such Competitive U.S. Bid
at such Competitive U.S. Bid Rate. Competitive U.S. Bids so accepted by Airgas
shall be irrevocable.
(e) Funding of Competitive U.S. Loans. Upon acceptance by Airgas pursuant
to subsection (d) above of all or a portion of any U.S. Revolving Lender's
Competitive U.S. Bid, such U.S. Revolving Lender shall, before such time as
determined by such U.S. Revolving Lender in accordance with such U.S. Revolving
Lender's customary practices, on the date of the requested Competitive U.S.
Loan, make such Competitive U.S. Loan available to the U.S. Agent in Federal or
other immediately available funds. Upon receipt of such funds, the U.S. Agent
will promptly make such funds available to Airgas at Account No. 3750353729
maintained at the offices of Bank of America; provided, however, that if on the
date of such Competitive U.S. Loan Airgas is to repay all or any part of an
outstanding U.S. Revolving Loan, then the U.S. Agent shall apply such
Competitive U.S. Loan first to such repayment, and only an amount equal to the
excess (if any) of the amount borrowed over the amount being repaid shall be
made available to Airgas.
(f) Repayment of Competitive U.S. Loans. Airgas promises to repay to each
U.S. Revolving Lender which has made a Competitive U.S. Loan on the last day of
the Interest Period for such Competitive U.S. Loan the then unpaid principal
amount of such Competitive U.S. Loan. Airgas may not prepay any Competitive U.S.
Loan unless such prepayment is accompanied by payment of amounts specified in
Section 4.11.
(g) Interest. Airgas promises to pay interest to each U.S. Revolving
Lender on the unpaid principal amount of each Competitive U.S. Loan of such U.S.
Revolving Lender from and including the date of such Competitive U.S. Loan to
but excluding the stated maturity date thereof, at the applicable Competitive
U.S. Bid Rate for such Competitive U.S. Loan (computed on the basis of the
actual number of
30
days elapsed over a year of 360 days). Interest on Competitive U.S. Loans shall
be payable in arrears on each applicable Interest Payment Day (or at such other
times as may be specified herein).
(h) Limitation on Number of Competitive U.S. Loans. Airgas shall not
request a Competitive U.S. Loan if, assuming the maximum amount of Competitive
U.S. Loans so requested is borrowed as of the date of such request, (i) the sum
of the aggregate principal amount of outstanding U.S. Revolving Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding would exceed the aggregate U.S. Revolving Committed
Amount and (ii) the sum of the aggregate principal amount of outstanding
Competitive U.S. Loans would exceed $50,000,000.
(i) Change in Procedures for Requesting Competitive U.S. Loans. Airgas and
the U.S. Revolving Lenders hereby agree that, notwithstanding any other
provision to the contrary contained in this Credit Agreement, upon mutual
agreement of the U.S. Agent and Airgas and written notice by the U.S. Agent to
the U.S. Revolving Lenders, all further requests by Airgas for Competitive U.S.
Loans shall be made by Airgas to the U.S. Revolving Lenders through the U.S.
Agent in accordance with such procedures as shall be prescribed by the U.S.
Agent and acceptable to Airgas and each U.S. Revolving Lender.
2.3 U.S. LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and of the U.S.
LOC Documents, if any, and any other terms and conditions which the U.S. Issuing
Lender may reasonably require, and in reliance upon the agreements of the Credit
Parties and U.S. Revolving Lenders set forth herein, the U.S. Revolving Lenders
will participate in the issuance by the U.S. Issuing Lender from time to time of
such U.S. Letters of Credit in U.S. Dollars from the Closing Date until the
Termination Date as Airgas may request, in a form acceptable to the U.S. Issuing
Lender; provided, however, that (i) the U.S. LOC Obligations outstanding shall
not at any time exceed SIXTY-FIVE MILLION U.S. DOLLARS ($65,000,000) (the "U.S.
LOC Committed Amount") and (ii) the sum of the aggregate principal amount of
outstanding U.S. Revolving Loans plus the aggregate principal amount of
outstanding Competitive U.S. Loans plus the aggregate principal amount of
outstanding U.S. Swingline Loans plus U.S. LOC Obligations outstanding shall not
at any time exceed the aggregate U.S. Revolving Committed Amount. No U.S. Letter
of Credit shall (x) except in the case where the U.S. Issuing Lender in respect
of a U.S. Letter of Credit has been replaced by a successor U.S. Issuing Lender,
have an original expiry date more than one year from the date of issuance
(provided that such U.S. Letter of Credit may contain customary "evergreen"
provisions pursuant to which the expiry date is automatically extended by a
specific time period unless the U.S. Issuing Lender gives notice of non-renewal
to the beneficiary of such U.S. Letter of Credit at least a specified time
period prior to the expiry date then in effect), or (y) as originally issued or
as extended, have an expiry date extending beyond the Termination Date. The U.S.
Issuing Lender shall be under no obligation to issue any U.S. Letter of Credit
if the issuance of such U.S. Letter of Credit would violate any applicable
Requirement of Law or any policy of the U.S. Issuing Lender. Each U.S. Letter of
Credit shall comply with the related U.S. LOC Documents. The issuance date of
each U.S. Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a U.S. Letter of
Credit shall be submitted by Airgas (by its duly authorized officers or
representatives) to the U.S. Issuing Lender with a copy to the U.S. Agent at
least three (3) Business Days prior to the requested date of issuance. The U.S.
Issuing Lender will, at least quarterly and more frequently upon request,
disseminate to each of the U.S. Revolving Lenders a detailed report specifying
the U.S. Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of the
prior report, and including therein, among other things, the beneficiary, the
face amount, expiry date as well as any payment or expirations which may have
occurred.
31
(c) Participation. Each U.S. Revolving Lender, upon issuance of a U.S.
Letter of Credit (or, in the case of each Existing U.S. Letter of Credit, on the
Closing Date), shall be deemed to have purchased without recourse a risk
participation from the U.S. Issuing Lender in such U.S. Letter of Credit and the
obligations arising thereunder, in each case in an amount equal to its pro rata
share of the obligations under such U.S. Letter of Credit (based on the
respective U.S. Revolving Commitment Percentages of the U.S. Revolving Lenders)
and shall absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and be obligated to pay to the U.S. Issuing Lender therefor
and discharge when due, its pro rata share of the obligations arising under such
U.S. Letter of Credit. Without limiting the scope and nature of each U.S.
Revolving Lender's participation in any U.S. Letter of Credit, to the extent
that the U.S. Issuing Lender has not been reimbursed as required hereunder or
under any such U.S. Letter of Credit, each such U.S. Revolving Lender shall pay
to the U.S. Issuing Lender its pro rata share of such unreimbursed drawing in
same day funds on the day of notification by the U.S. Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each U.S. Revolving Lender to so reimburse the U.S. Issuing Lender
shall be absolute and unconditional and shall not be affected by the occurrence
of a Default, an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of Airgas to
reimburse the U.S. Issuing Lender under any U.S. Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any U.S. Letter of
Credit, the U.S. Issuing Lender will promptly notify Airgas and the U.S. Agent.
Unless Airgas shall immediately notify the U.S. Issuing Lender that Airgas
intends to otherwise reimburse the U.S. Issuing Lender for such drawing, Airgas
shall be deemed to have requested that the U.S. Revolving Lenders make a U.S.
Revolving Loan in the amount of the drawing as provided in subsection (e) hereof
on the related U.S. Letter of Credit, the proceeds of which will be used to
satisfy the related reimbursement obligations. Airgas promises to reimburse the
U.S. Issuing Lender on the day of drawing under any U.S. Letter of Credit
(either with the proceeds of a U.S. Revolving Loan obtained hereunder or
otherwise) in same day funds. If Airgas shall fail to reimburse the U.S. Issuing
Lender as provided hereinabove, the unreimbursed amount of such drawing shall
bear interest at a per annum rate equal to the U.S. Base Rate plus the sum of
(i) the Applicable Percentage and (ii) two percent (2%). Airgas' reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment Airgas may claim or have against the U.S. Issuing Lender, the U.S.
Agent, the U.S. Revolving Lenders, the beneficiary of the U.S. Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of Airgas to receive consideration or the legality, validity,
regularity or unenforceability of the U.S. Letter of Credit. The U.S. Agent will
promptly notify the other U.S. Revolving Lenders of the amount of any
unreimbursed drawing under any U.S. Letter of Credit and each U.S. Revolving
Lender shall promptly pay to the U.S. Agent for the account of the U.S. Issuing
Lender in U.S. Dollars and in immediately available funds, the amount of such
U.S. Revolving Lender's pro rata share of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such U.S. Revolving
Lender from the U.S. Issuing Lender if such notice is received at or before 2:00
P.M. (Charlotte, North Carolina time) otherwise such payment shall be made at or
before 12:00 NOON (Charlotte, North Carolina time) on the Business Day next
succeeding the day such notice is received. If such U.S. Revolving Lender does
not pay such amount to the U.S. Issuing Lender in full upon such request, such
U.S. Revolving Lender shall, on demand, pay to the U.S. Agent for the account of
the U.S. Issuing Lender interest on the unpaid amount during the period from the
date of such drawing until such U.S. Revolving Lender pays such amount to the
U.S. Issuing Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such U.S. Revolving Lender is required to make
payments of such amount pursuant to the preceding sentence, the Federal Funds
Rate and thereafter at a rate equal to the U.S. Base Rate. Each U.S. Revolving
Lender's obligation to make such payment to the U.S. Issuing Lender, and the
right of the U.S. Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the Commitments hereunder,
the existence of a Default or Event of Default or the acceleration of the
32
obligations of Airgas hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of each such
payment by a U.S. Revolving Lender to the U.S. Issuing Lender, such U.S.
Revolving Lender shall, automatically and without any further action on the part
of the U.S. Issuing Lender or such U.S. Revolving Lender, acquire a
participation in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the U.S. Issuing Lender) in the related
unreimbursed drawing portion of the U.S. LOC Obligation and in the interest
thereon and in the related U.S. LOC Documents, and shall have a claim against
Airgas with respect thereto.
(e) Repayment with U.S. Revolving Loans. On any day on which Airgas shall
have requested, or shall be deemed to have requested, a U.S. Revolving Loan
advance to reimburse a drawing under a U.S. Letter of Credit, the U.S. Agent
shall give notice to the U.S. Revolving Lenders that a U.S. Revolving Loan has
been requested or deemed requested by Airgas to be made in connection with a
drawing under a U.S. Letter of Credit, in which case a U.S. Revolving Loan
advance comprised of U.S. Base Rate Loans (or Eurodollar Loans to the extent
Airgas has complied with the procedures of Section 2.1(b)(i) with respect
thereto) shall be immediately made to Airgas by all U.S. Revolving Lenders
(notwithstanding any termination of the Commitments pursuant to Section 9.2) pro
rata based on the respective U.S. Revolving Commitment Percentages of the U.S.
Revolving Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2) and the proceeds thereof shall be paid
directly to the U.S. Issuing Lender for application to the respective U.S. LOC
Obligations. Each U.S. Revolving Lender hereby irrevocably agrees to make its
pro rata share of each such U.S. Revolving Loan immediately upon any such
request or deemed request in the amount, in the manner and on the date specified
in the preceding sentence notwithstanding (i) the amount of such borrowing may
not comply with the minimum amount for advances of U.S. Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in Section
5.2 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for U.S. Revolving
Loan to be made by the time otherwise required hereunder, (v) whether the date
of such borrowing is a date on which U.S. Revolving Loans are otherwise
permitted to be made hereunder or (vi) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such borrowing.
In the event that any U.S. Revolving Loan cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to Airgas),
then each U.S. Revolving Lender hereby agrees that it shall forthwith purchase
(as of the date such borrowing would otherwise have occurred, but adjusted for
any payments received from Airgas on or after such date and prior to such
purchase) from the U.S. Issuing Lender such participation in the outstanding
U.S. LOC Obligations as shall be necessary to cause each U.S. Revolving Lender
to share in such U.S. LOC Obligations ratably (based upon the respective U.S.
Revolving Commitment Percentages of the U.S. Revolving Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2)), provided that at the time any purchase of participation pursuant to this
sentence is actually made, the purchasing U.S. Revolving Lender shall be
required to pay to the U.S. Issuing Lender, to the extent not paid to the Issuer
by Airgas in accordance with the terms of subsection (d) hereof, interest on the
principal amount of participation purchased for each day from and including the
day upon which such borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the rate equal to, if paid within two
(2) Business Days of the date of the U.S. Revolving Loan advance, the Federal
Funds Rate, and thereafter at a rate equal to the U.S. Base Rate.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including without
limitation Section 2.3(a) hereof, a U.S. Letter of Credit issued hereunder may
contain a statement to the effect that such U.S. Letter of Credit is issued for
the account of a Subsidiary of Airgas, provided that notwithstanding such
statement, Airgas shall be the actual account party for all purposes of this
Credit Agreement for such U.S. Letter of Credit and such statement shall not
affect Airgas' reimbursement obligations hereunder with respect to such U.S.
Letter of Credit.
33
(g) Renewal, Extension. The renewal or extension of any U.S. Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new U.S. Letter of Credit hereunder.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
U.S. Issuing Lender and Airgas when a U.S. Letter of Credit is issued (including
any such agreement applicable to an Existing U.S. Letter of Credit), (i) the
rules of the ISP shall apply to each standby U.S. Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each trade U.S. Letter of Credit.
(i) Indemnification; Nature of U.S. Issuing Lender's Duties.
(i) Airgas agrees to indemnify and hold harmless the U.S. Issuing
Lender, each other U.S. Revolving Lender, the U.S. Agent and each of their
respective officers, directors, affiliates, employees or agents (the
"Indemnitees") from and against any and all claims and damages, losses,
liabilities, costs and expenses which the Indemnitees may incur (or which
may be claimed against any Indemnitee) by any Person by reason of or in
connection with the issuance or transfer of or payment or failure to pay
under any U.S. Letter of Credit; provided that Airgas shall not be
required to indemnify the Indemnitees for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, (A)
caused by the willful misconduct or gross negligence of any Indemnitee in
determining whether a request presented under any U.S. Letter of Credit
complied with the terms of such U.S. Letter of Credit or (B) caused by the
U.S. Issuing Lender's failure to pay under any U.S. Letter of Credit after
the presentation to it of a request strictly complying with the terms and
conditions of such U.S. Letter of Credit (unless such payment is
prohibited by any law, regulation, court order or decree).
(ii) Airgas agrees, as between Airgas and the U.S. Issuing Lender,
Airgas shall assume all risks of the acts, omissions or misuse of any U.S.
Letter of Credit by the beneficiary thereof.
(iii) The U.S. Issuing Lender shall not, in any way, be liable for
any failure by the U.S. Issuing Lender or anyone else to pay any drawing
under any U.S. Letter of Credit as a result of any Government Acts or any
other cause beyond the control of the U.S. Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of Airgas contained in subsection (d) above. The
obligations of Airgas under this subsection (i) shall survive the
termination of this Credit Agreement. No act or omissions of any current
or prior beneficiary of a U.S. Letter of Credit shall in any way affect or
impair the rights of the U.S. Issuing Lender to enforce any right, power
or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), Airgas shall have no obligation to indemnify the U.S.
Issuing Lender in respect of any liability incurred by the U.S. Issuing
Lender (A) arising out of the gross negligence or willful misconduct of
the U.S. Issuing Lender, or (B) caused by the U.S. Issuing Lender's
failure to pay under any U.S. Letter of Credit after presentation to it of
a request strictly complying with the terms and conditions of such U.S.
Letter of Credit, as determined by a court of competent jurisdiction,
unless such payment is prohibited by any law, regulation, court order or
decree.
34
(j) Responsibility of U.S. Issuing Lender. It is expressly understood and
agreed that the obligations of the U.S. Issuing Lender hereunder to the U.S.
Revolving Lenders are only those expressly set forth in this Credit Agreement
and that the U.S. Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 2.3 shall
be deemed to prejudice the right of any U.S. Revolving Lender to recover from
the U.S. Issuing Lender any amounts made available by such U.S. Revolving Lender
to the U.S. Issuing Lender pursuant to this Section 2.3 in the event that it is
determined by a court of competent jurisdiction that the payment with respect to
a U.S. Letter of Credit constituted gross negligence or willful misconduct on
the part of the U.S. Issuing Lender.
(k) Conflict with U.S. LOC Documents. In the event of any conflict between
this Credit Agreement and any U.S. LOC Document (including any letter of credit
application), this Credit Agreement shall control.
(l) Role of U.S. Agent. Airgas and each U.S. Issuing Lender agree to
provide the U.S. Agent with a copy of any notice or report otherwise required to
be furnished by such Person to any other Person pursuant to Sections 2.3(a),
2.3(b) or 2.3(d). Furthermore, all payments required to be made by any U.S.
Revolving Lender to a U.S. Issuing Lender pursuant to Section 2.3 shall be made
to the U.S. Agent, for the account of such U.S. Issuing Lender, and the U.S.
Agent shall distribute such payments to such U.S. Issuing Lender.
2.4 U.S. SWINGLINE LOAN SUBFACILITY.
(a) U.S. Swingline Commitment. Subject to the terms and conditions set
forth herein, the U.S. Swingline Lender agrees, in reliance upon the agreements
of the other U.S. Revolving Lenders set forth in this Section 2.4, the U.S.
Swingline Lender, in its individual capacity, agrees to make certain revolving
credit loans requested by Airgas in U.S. Dollars to Airgas (each a "U.S.
Swingline Loan" and, collectively, the "U.S. Swingline Loans") from time to time
from the Closing Date until the Termination Date for the purposes hereinafter
set forth; provided, however, (i) the aggregate principal amount of U.S.
Swingline Loans outstanding at any time shall not exceed THIRTY MILLION U.S.
DOLLARS ($30,000,000) (the "U.S. Swingline Committed Amount"), and (ii) the
aggregate principal amount of outstanding U.S. Revolving Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding shall not exceed the U.S. Revolving Committed Amount.
U.S. Swingline Loans hereunder shall be made as U.S. Base Rate Loans or Quoted
Rate U.S. Swingline Loans as Airgas may request in accordance with the
provisions of this Section 2.4, and may be repaid and reborrowed in accordance
with the provisions hereof.
(b) U.S. Swingline Loan Advances.
(i) Notices; Disbursement. Whenever Airgas desires a U.S. Swingline
Loan advance hereunder its duly authorized officer or representative shall
give written notice (or telephone notice promptly confirmed in writing) to
the U.S. Swingline Lender not later than 2:00 P.M. (Charlotte, North
Carolina time) on the Business Day of the requested U.S. Swingline Loan
advance. Each such notice shall be irrevocable and shall specify (A) that
a U.S. Swingline Loan advance is requested, (B) the date of the requested
U.S. Swingline Loan advance (which shall be a Business Day) and (C) the
principal amount of the U.S. Swingline Loan advance requested. Each U.S.
Swingline Loan shall be made as a U.S. Base Rate Loan or a Quoted Rate
U.S. Swingline Loan and shall have such maturity date as the U.S.
Swingline Lender and Airgas shall agree upon receipt by the U.S. Swingline
Lender of any such notice from Airgas. The U.S. Swingline Lender shall
credit
35
the funds requested to an Airgas account maintained with the Swingline
Lender by 3:00 P.M. (Charlotte, North Carolina time) on the Business Day
of the requested borrowing.
(ii) Minimum Amounts. Each U.S. Swingline Loan advance shall be in a
minimum principal amount of $100,000 and in integral multiples thereof (or
the remaining amount of the U.S. Swingline Committed Amount, if less).
(iii) Repayment of U.S. Swingline Loans. Airgas promises to pay the
principal amount of all U.S. Swingline Loans on the earlier of (A) the
maturity date agreed to by the U.S. Swingline Lender and Airgas with
respect to such U.S. Swingline Loan (which maturity date shall not be a
date more than thirty (30) days from the date of advance thereof) or (B)
the Termination Date. The U.S. Swingline Lender may, at any time, in its
sole discretion, by written notice to Airgas and the U.S. Revolving
Lenders, demand repayment of its U.S. Swingline Loans by way of a U.S.
Revolving Loan advance, in which case Airgas shall be deemed to have
requested a U.S. Revolving Loan advance comprised solely of U.S. Base Rate
Loans in the amount of such U.S. Swingline Loans; provided, however, that
any such demand shall be deemed to have been given one Business Day prior
to the Termination Date and on the date of the occurrence of any Event of
Default described in Section 9.1 (or if such date is not a Business Day,
the first Business Day succeeding such date) and upon acceleration of the
indebtedness hereunder and the exercise of remedies in accordance with the
provisions of Section 9.2. Each U.S. Revolving Lender hereby irrevocably
agrees to make its pro rata share of each such U.S. Revolving Loan in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (I) the amount of such borrowing may not comply with the
minimum amount for advances of U.S. Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section 5.2 are then
satisfied, (III) whether a Default or an Event of Default then exists,
(IV) failure of any such request or deemed request for U.S. Revolving Loan
to be made by the time otherwise required hereunder, (V) whether the date
of such borrowing is a date on which U.S. Revolving Loans are otherwise
permitted to be made hereunder or (VI) any termination of the Commitments
relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any U.S. Revolving Loan cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to Airgas), then each U.S. Revolving Lender
hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments
received from Airgas on or after such date and prior to such purchase)
from the U.S. Swingline Lender such participations in the outstanding U.S.
Swingline Loans as shall be necessary to cause each U.S. Revolving Lender
to share in such U.S. Swingline Loans ratably based upon its U.S.
Revolving Commitment Percentage of the U.S. Revolving Committed Amount
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2), provided that (A) all interest payable on the
U.S. Swingline Loans shall be for the account of the U.S. Swingline Lender
until the date as of which the respective participation is purchased and
(B) at the time any purchase of participations pursuant to this sentence
is actually made, the purchasing U.S. Revolving Lender shall be required
to pay to the U.S. Swingline Lender, to the extent not paid to the U.S.
Swingline Lender by Airgas in accordance with the terms of subsection
(c)(ii) hereof, interest on the principal amount of participation
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to the Federal Funds
Rate.
(c) Interest on U.S. Swingline Loans. (i) Subject to the provisions of
Section 4.1, each U.S. Swingline Loan shall bear interest as follows:
36
(A) U.S. Base Rate Loans. If such U.S. Swingline Loan is a U.S. Base
Rate Loan, at a per annum rate (computed on the basis of the actual number
of days elapsed over a year of 365 days) equal to the U.S. Base Rate plus
the Applicable Percentage; and
(B) Quoted Rate U.S. Swingline Loans. If such U.S. Swingline Loan is
a Quoted Rate U.S. Swingline Loan, at a per annum rate (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal
to the Quoted Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in this
Credit Agreement, in the event that the principal amount of any Quoted
Rate U.S. Swingline Loan is not repaid on the last day of the Interest
Period for such Loan, then such Loan shall be automatically converted into
a U.S. Base Rate Loan at the end of such Interest Period.
(C) Payment of Interest. Airgas promises to pay interest on U.S.
Swingline Loans in arrears on each applicable Interest Payment Date (or at
such other times as may be specified herein).
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
Closing Date (or on the effective date of any increase in the U.S. Term
Loan Committed Amount pursuant to Section 4.4(b), 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 ONE
HUNDRED MILLION U.S. DOLLARS ($100,000,000) (as such aggregate maximum
amount may be increased from time to time as provided in Section 4.4, 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.
(b) Borrowing Procedures. Airgas shall submit an appropriate Notice
of Borrowing to the U.S. Agent not later than 11:00 A.M. (Charlotte, North
Carolina time) on the Closing Date (or on the effective date of any
increase in the U.S. Term Loan Committed Amount pursuant to Section
4.4(b), as applicable), with respect to the portion of the U.S. Term Loan
initially consisting of a U.S. Base Rate Loan, or on the third Business
Day prior to the Closing Date (or on the effective date of any increase in
the U.S. Term Loan Committed Amount pursuant to Section 4.4(b), as
applicable), with respect to the portion of the U.S. Term Loan initially
consisting of one or more Eurodollar Loans. Such Notice of Borrowing shall
be irrevocable and shall specify (i) that the funding of a U.S. Term Loan
is requested and (ii) whether the funding of the U.S. Term Loan shall be
comprised of U.S. Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Period(s)
therefor. If Airgas shall fail to deliver such Notice of Borrowing to the
U.S. Agent by 11:00 A.M. (Charlotte, North Carolina time) on the third
Business Day prior to the Closing Date (or the effective date of any
increase in the U.S. Term Loan Committed Amount pursuant to Section
4.4(b), as applicable), then the full amount of the U.S. Term Loan shall
be disbursed on the Closing Date (or on the
37
effective date of any increase in the U.S. Term Loan Committed Amount
pursuant to Section 4.4(b), as applicable) as a U.S. Base Rate Loan. Each
U.S. Term Lender shall make its U.S. Term Loan Percentage of the U.S. Term
Loan available to the U.S. Agent for the account of Airgas by 1:00 P.M.
(Charlotte, North Carolina time) on the Closing Date (or on the effective
date of any increase in the U.S. Term Loan Committed Amount pursuant to
Section 4.4(b), as applicable) in U.S. Dollars and in funds immediately
available to the U.S. Agent.
(c) Minimum Amounts. Each Eurodollar Loan or U.S. Base Rate Loan
that is part of the U.S. Term Loan shall be in an aggregate principal
amount that is not less than $5,000,000 and integral multiples of
$1,000,000 (or the then remaining principal balance of the U.S. Term Loan,
if less).
(d) Repayment of U.S. Term Loan. Airgas promises to pay the
outstanding principal amount of the U.S. Term Loan in twenty (20)
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(b)), unless accelerated sooner
pursuant to Section 9.2:
PRINCIPAL AMORTIZATION
PAYMENT DUE ON THE
PAYMENT DATES CORRESPONDING PAYMENT DATE
- ------------------------ ----------------------------
March 31, 2005, June 30,
2005, September 30, 3.75%
2005 and December 31,
2005
March 31, 2006, June 30,
2006, September 30,
2006 and December 31, 3.75%
2006
March 31, 2007, June 30,
2007, September 30,
2007 and December 31, 3.75%
2007
March 31, 2008, June 30,
2008, September 30,
2008, and December 31, 3.75%
2008
March 31, 2009, June 30, 10.00%
2009 and September 30,
2009
December 31, 2009 Unpaid Balance
(e) Interest. Subject to the provisions of Section 4.1,
(i) U.S. Base Rate Loans. During such periods as the U.S. Term
Loan shall be comprised in whole or in part of U.S. Base Rate Loans,
such U.S. Base Rate Loans
38
shall bear interest at a per annum rate equal to the U.S. Base Rate
plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as the U.S. Term
Loan shall be comprised in whole or in part of Eurodollar Loans,
such Eurodollar Loans shall bear interest at a per annum rate equal
to the Eurodollar Rate plus the Applicable Percentage.
Airgas promises to pay interest on the U.S. Term Loan in arrears on
each applicable Interest Payment Date (or at such other times as may be
specified herein).
ARTICLE III
CANADIAN DOLLAR CREDIT FACILITIES
3.1 CANADIAN REVOLVING LOANS.
(a) Canadian Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth herein,
each Canadian Lender severally and not jointly agrees to make available to each
Canadian Borrower, for its own account, such Canadian Lender's Canadian
Commitment Percentage of revolving credit loans requested by the Canadian
Borrowers in Canadian Dollars ("Canadian Revolving Loans") from time to time
from the Closing Date until the Termination Date, or such earlier date as the
Canadian Revolving Commitments shall have been terminated as provided herein for
the purposes hereinafter set forth; provided, however, that the sum of the
aggregate principal amount of outstanding Canadian Revolving Loans shall not
exceed FIFTY MILLION CANADIAN DOLLARS (C$50,000,000) (as such aggregate maximum
amount may be reduced from time to time as provided in Section 4.4, the
"Canadian Revolving Committed Amount"); provided, further, (i) with regard to
each Canadian Lender individually, outstanding Canadian Revolving Loans of such
Canadian Lender plus the participation interests in Canadian LOC Obligations of
such Canadian Lender plus the BA Outstandings of such Canadian Lender shall not
exceed such Canadian Lender's Canadian Commitment Percentage of the Canadian
Revolving Committed Amount and (ii) with regard to the Canadian Lenders
collectively, the aggregate principal amount of outstanding Canadian Revolving
Loans plus the aggregate principal amount of outstanding Canadian Swingline
Loans plus Canadian LOC Obligations outstanding plus the BA Outstandings shall
not exceed the Canadian Revolving Committed Amount. Canadian Revolving Loans
hereunder may be repaid and reborrowed in accordance with the provisions hereof.
(b) Canadian Revolving Loan Borrowings.
(i) Notice of Borrowing. Each Canadian Borrower (by its duly
authorized officers or representatives) shall request a Canadian Revolving
Loan borrowing by Notice of Borrowing (or telephone notice promptly
confirmed by delivery of a Notice of Borrowing) to the Canadian Agent not
later than 11:00 A.M. (Toronto, Ontario time) on the Business Day prior to
the date of the requested borrowing. Each such request for borrowing shall
be irrevocable and shall specify (A) that a Canadian Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day) and (C) the aggregate principal amount to be borrowed. The
Canadian Agent shall give notice to each affected Canadian Lender promptly
upon receipt of each Notice of Borrowing pursuant to this Section
3.1(b)(i), specifying the contents thereof and each such Canadian Lender's
share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Canadian Revolving Loan shall be in a
minimum aggregate principal amount of C$1,500,000 and integral multiples
of C$100,000 in excess thereof (or the remaining amount of the Canadian
Revolving Committed Amount, if less).
39
(iii) Advances. Each Canadian Lender will make its Canadian
Commitment Percentage of each Canadian Revolving Loan borrowing available
to the Canadian Agent for the account of the particular Canadian Borrower
by 1:00 P.M. (Toronto, Ontario time) on the date specified in the
applicable Notice of Borrowing in Canadian Dollars and in funds
immediately available to the Canadian Agent. Such borrowing will then be
made available to the particular Canadian Borrower by the Canadian Agent
in like funds as received by the Canadian Agent by (A) crediting the
account of such Canadian Borrower on the books of the Canadian Agent with
the amount of such funds or (B) wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to)
the Canadian Agent by such Canadian Borrower
(c) Repayment. Each Canadian Borrower promises to pay the principal amount
of all Canadian Revolving Loans made to such Canadian Borrower in full on the
Termination Date.
(d) Interest. Subject to the provisions of Section 4.1, Canadian Revolving
Loans shall bear interest at a per annum rate equal to the Canadian Base Rate
plus the Applicable Percentage. Each Canadian Borrower promises to pay interest
on Canadian Revolving Loans made to such Canadian Borrower monthly in arrears on
each applicable Interest Payment Date (or at such other times as may be
specified herein).
3.2 CANADIAN SWINGLINE LOAN SUBFACILITY.
(a) Canadian Swingline Commitment. Subject to the terms and conditions set
forth herein, the Canadian Swingline Lender agrees, in reliance upon the
agreements of the other Canadian Lenders set forth in this Section 3.2, each
Canadian Borrower may, in its individual capacity, obtain revolving credit loans
in Canadian Dollars from the Canadian Swingline Lender, in its individual
capacity (each a "Canadian Swingline Loan" and, collectively, the "Canadian
Swingline Loans"), from time to time from the Closing Date until the Termination
Date (i) by written notice (or telephone notice promptly confirmed in writing)
from such Canadian Borrower (by its duly authorized officers or representatives)
to the Canadian Swingline Lender not later than 2:00 P.M. (Toronto, Canada time)
on the Business Day of the requested Canadian Swingline Loan advance (in which
case the Canadian Swingline Lender shall credit the funds requested to the
applicable Operating Account by 3:00 P.M. (Toronto, Canada time) on the Business
Day of the requested borrowing) or (ii) by way of overdraft in the Canadian
Dollar operating accounts maintained by such Canadian Borrower with the Canadian
Swingline Lender (collectively, the "Operating Accounts"), for the purposes
hereinafter set forth; provided, however, (A) the aggregate principal amount of
Canadian Swingline Loans outstanding at any time shall not exceed FIVE MILLION
CANADIAN DOLLARS (C$5,000,000) (the "Canadian Swingline Committed Amount"), and
(B) the aggregate principal amount of outstanding Canadian Revolving Loans plus
the aggregate principal amount of outstanding Canadian Swingline Loans plus
Canadian LOC Obligations outstanding plus the BA Outstandings shall not exceed
the Canadian Revolving Committed Amount. Unless the Canadian Borrowers have made
prior arrangements with the Canadian Swingline Lender (including without
limitation by requesting a Canadian Revolving Loan), the Canadian Swingline
Lender may return any debit from an Operating Account that, if paid, would
result in the aggregate principal amount of outstanding Canadian Swingline Loans
exceeding the Canadian Swingline Committed Amount if (1) any Default or Event of
Default then exists or (2) if the applicable Canadian Borrower does not, on or
before the first Business Day after receipt by such Canadian Borrower of notice
of such excess from the Canadian Swingline Lender, deposit money or request a
Canadian Revolving Loan sufficient to cover such debit. Canadian Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions hereof.
(b) Repayment of Canadian Swingline Loans. Each Canadian Borrower hereby
promises to repay the principal amount of each Canadian Swingline Loan taken by
such Canadian Borrower on the
40
earlier of (A) the maturity date agreed to by the Canadian Swingline Lender and
such Canadian Borrower with respect to such Canadian Swingline Loan or (B) the
Termination Date. The Canadian Swingline Lender may, at any time, in its sole
discretion, by written notice to the Canadian Borrower and the Canadian Lenders,
demand repayment of its Canadian Swingline Loans by way of a Canadian Revolving
Loan advance, in which case the Canadian Borrower shall be deemed to have
requested a Canadian Revolving Loan advance in the amount of such Canadian
Swingline Loans; provided, however, that such a demand shall be deemed to have
been given one Business Day prior to the Termination Date and on the date of the
occurrence of any Event of Default described in Section 9.1 (or if such date is
not a Business Day, the first Business Day succeeding such date) and upon
acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Canadian Lender hereby
irrevocably agrees to make its pro rata share of each such Canadian Revolving
Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (I) the amount of such borrowing may not comply with
the minimum amount for advances of Canadian Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section 5.2 are then
satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for a Canadian Revolving Loan to
be made by the time otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Canadian Revolving Loans are otherwise permitted to
be made hereunder or (VI) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing.
(c) Interest on Canadian Swingline Loans.
(i) Interest Rate. Subject to the provisions of Section 4.1, each
Canadian Swingline Loan shall bear interest at a per annum rate (computed
on the basis of the actual number of days elapsed over a year of 365 days)
equal to the Canadian Base Rate plus the Applicable Percentage; and
(ii) Payment of Interest. With respect to each Canadian Swingline
Loan taken by a Canadian Borrower, such Canadian Borrower hereby promises
to pay all interest on the outstanding principal amount of such Canadian
Swingline Loan in arrears on each applicable Interest Payment Date (or at
such other times as may be specified herein).
3.3 CANADIAN LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and of the
Canadian LOC Documents, if any, and any other terms and conditions which the
Canadian Issuing Lender may reasonably require, and in reliance upon the
agreements of the Credit Parties and Canadian Lenders set forth herein, the
Canadian Lenders will participate in the issuance by the Canadian Issuing Lender
from time to time of such Canadian Letters of Credit in Canadian Dollars from
the Closing Date until the Termination Date as a Canadian Borrower may request,
in a form acceptable to the Canadian Issuing Lender; provided, however, that (i)
the Canadian LOC Obligations outstanding shall not at any time exceed FIFTY
MILLION CANADIAN DOLLARS (C$50,000,000) (the "Canadian LOC Committed Amount")
and (ii) the sum of the aggregate principal amount of outstanding Canadian
Revolving Loans plus the aggregate principal amount of outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus BA Outstandings
shall not at any time exceed the aggregate Canadian Revolving Committed Amount.
No Canadian Letter of Credit shall (x) have an original expiry date more than
one year from the date of issuance (provided that such Canadian Letter of Credit
may contain customary "evergreen" provisions pursuant to which the expiry date
is automatically extended by a specific time period unless the Canadian Issuing
Lender gives notice of non-renewal to the beneficiary of such Canadian Letter of
Credit at least a specified time period prior to the expiry date then in
effect), or (y) as originally issued or as extended, have an expiry date
extending beyond the Termination Date. The Canadian Issuing Lender shall be
under no obligation to issue any Canadian
41
Letter of Credit if the issuance of such Canadian Letter of Credit would violate
any applicable Requirement of Law or any policy of the Canadian Issuing Lender.
Each Canadian Letter of Credit shall comply with the related Canadian LOC
Documents. The issuance date of each Canadian Letter of Credit shall be a
Business Day.
(b) Notice and Reports. The request for the issuance of a Canadian Letter
of Credit shall be submitted by the applicable Canadian Borrower (by its duly
authorized officers or representatives) to the Canadian Issuing Lender with a
copy to the Canadian Agent at least three (3) Business Days prior to the
requested date of issuance. The Canadian Issuing Lender will, at least quarterly
and more frequently upon request, disseminate to each of the Canadian Lenders a
detailed report specifying the Canadian Letters of Credit which are then issued
and outstanding and any activity with respect thereto which may have occurred
since the date of the prior report, and including therein, among other things,
the beneficiary, the face amount and expiry date as well as any payments or
expirations which may have occurred.
(c) Participation. Each Canadian Lender, upon issuance of a Canadian
Letter of Credit (or, in the case of each Existing Canadian Letter of Credit, on
the Closing Date), shall be deemed to have purchased without recourse a risk
participation from the Canadian Issuing Lender in such Canadian Letter of Credit
and the obligations arising thereunder, in each case in an amount equal to its
pro rata share of the obligations under such Canadian Letter of Credit (based on
the respective Canadian Commitment Percentages of the Canadian Lenders) and
shall absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and be obligated to pay to the Canadian Issuing Lender therefor
and discharge when due, its pro rata share of the obligations arising under such
Canadian Letter of Credit. Without limiting the scope and nature of each
Canadian Lender's participation in any Canadian Letter of Credit, to the extent
that the Canadian Issuing Lender has not been reimbursed as required hereunder
or under any such Canadian Letter of Credit, each such Canadian Lender shall pay
to the Canadian Issuing Lender its pro rata share of such unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The obligation of each
Canadian Lender to so reimburse the Canadian Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of each Canadian Borrower to
reimburse the Canadian Issuing Lender under any Canadian Letter of Credit issued
for the account of such Canadian Borrower, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under any Canadian Letter
of Credit, the Canadian Issuing Lender will promptly notify the applicable
Canadian Borrower and the Canadian Agent. Unless the applicable Canadian
Borrower shall immediately notify the Canadian Issuing Lender that such Canadian
Borrower intends to otherwise reimburse the Canadian Issuing Lender for such
drawing, such Canadian Borrower shall be deemed to have requested that the
Canadian Lenders make a Canadian Revolving Loan in the amount of the drawing as
provided in subsection (e) hereof on the related Canadian Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement obligations.
Each Canadian Borrower promises to reimburse the Canadian Issuing Lender on the
day of drawing under any Canadian Letter of Credit issued for the account of
such Canadian Borrower (either with the proceeds of a Canadian Revolving Loan
obtained hereunder or otherwise) in same day funds. If the applicable Canadian
Borrower shall fail to reimburse the Canadian Issuing Lender (either with the
proceeds of a Canadian Revolving Loan obtained hereunder or otherwise), the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to the Canadian Base Rate plus the Applicable Percentage plus two percent
(2%). The reimbursement obligations of each Canadian Borrower hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment such Canadian Borrower may claim or
have against the Canadian Issuing Lender, the U.S. Agent, the Canadian Agent,
the Canadian Lenders, the beneficiary of the Canadian Letter of Credit drawn
upon or any other Person, including without limitation any defense based on any
failure of such Canadian Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Canadian Letter of
42
Credit. The Canadian Agent will promptly notify the other Canadian Lenders of
the amount of any unreimbursed drawing under any Canadian Letter of Credit and
each Canadian Lender shall promptly pay to the Canadian Agent for the account of
the Canadian Issuing Lender in Canadian Dollars and in immediately available
funds, the amount of such Canadian Lender's pro rata share of such unreimbursed
drawing. Such payment shall be made on the day such notice is received by such
Canadian Lender from the Canadian Issuing Lender if such notice is received at
or before 2:00 P.M. (Toronto, Canada time) otherwise such payment shall be made
at or before 12:00 NOON (Toronto, Canada time) on the Business Day next
succeeding the day such notice is received. If such Canadian Lender does not pay
such amount to the Canadian Issuing Lender in full upon such request, such
Canadian Lender shall, on demand, pay to the Canadian Agent for the account of
the Canadian Issuing Lender interest on the unpaid amount during the period from
the date of such drawing until such Canadian Lender pays such amount to the
Canadian Issuing Lender in full at a rate per annum equal to the Canadian Base
Rate. Each Canadian Lender's obligation to make such payment to the Canadian
Issuing Lender, and the right of the Canadian Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of Airgas hereunder and shall be
made without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Canadian Lender to the
Canadian Issuing Lender, such Canadian Lender shall, automatically and without
any further action on the part of the Canadian Issuing Lender or such Canadian
Lender, acquire a participation in an amount equal to such payment (excluding
the portion of such payment constituting interest owing to the Canadian Issuing
Lender) in the related unreimbursed drawn portion of the Canadian LOC Obligation
and in the interest thereon and in the related Canadian LOC Documents, and shall
have a claim against the Canadian Borrower with respect thereto.
(e) Repayment with Canadian Revolving Loans. On any day on which a
Canadian Borrower shall have requested, or shall be deemed to have requested, a
Canadian Revolving Loan advance to reimburse a drawing under a Canadian Letter
of Credit, the Canadian Agent shall give notice to the Canadian Lenders that a
Canadian Revolving Loan advance has been requested or deemed requested by such
Canadian Borrower to be made in connection with a drawing under a Canadian
Letter of Credit, in which case a Canadian Revolving Loan shall be immediately
made to such Canadian Borrower by all Canadian Lenders (notwithstanding any
termination of the Commitments pursuant to Section 9.2) pro rata based on the
respective Canadian Commitment Percentages of the Canadian Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2) and the proceeds thereof shall be paid directly to the Canadian Issuing
Lender for application to the respective Canadian LOC Obligations. Each such
Canadian Lender hereby irrevocably agrees to make its pro rata share of each
such Canadian Revolving Loan immediately upon any such request or deemed request
in the amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Canadian Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) that any such request
or deemed request for Canadian Revolving Loan is not made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Canadian Revolving Loans are otherwise permitted to be made hereunder or (vi)
any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Canadian Revolving
Loan cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to a Canadian Borrower or Airgas), then
each such Canadian Lender hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but adjusted for any
payments received from any Canadian Borrower on or after such date and prior to
such purchase) from the Canadian Issuing Lender such participation in the
outstanding Canadian LOC Obligations as shall be necessary to cause each such
Canadian Lender to share in such Canadian LOC Obligations ratably (based upon
the respective Canadian Commitment Percentages of the Canadian Lenders
(determined before giving
43
effect to any termination of the Commitments pursuant to Section 9.2)), provided
that at the time any purchase of participation pursuant to this sentence is
actually made, the purchasing Canadian Lender shall be required to pay to the
Canadian Issuing Lender, to the extent not paid to the Issuer by the applicable
Canadian Borrower in accordance with the terms of subsection (d) hereof,
interest on the principal amount of participation purchased for each day from
and including the day upon which such borrowing would otherwise have occurred to
but excluding the date of payment for such participation, at a rate equal to the
Canadian Base Rate.
(f) Renewal, Extension. The renewal or extension of any Canadian Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Canadian Letter of Credit hereunder.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
Canadian Issuing Lender and the applicable Canadian Borrower when a Canadian
Letter of Credit is issued (including any such agreement applicable to an
Existing Canadian Letter of Credit), (i) the rules of the ISP shall apply to
each standby Canadian Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
trade Canadian Letter of Credit.
(h) Indemnification; Nature of Canadian Issuing Lender's Duties.
(i) Each Canadian Borrower agrees to indemnify and hold harmless the
Canadian Issuing Lender, each other Canadian Lender, the Canadian Agent,
the U.S. Agent and each of their respective officers, directors,
affiliates, employees or agents (the "Indemnitees") from and against any
and all claims and damages, losses, liabilities, costs and expenses which
the Indemnitees may incur (or which may be claimed against any Indemnitee)
by any Person by reason of or in connection with the issuance or transfer
of or payment or failure to pay under any Canadian Letter of Credit issued
for the account of such Canadian Borrower; provided that the Canadian
Borrowers shall not be required to indemnify the Indemnitees for any
claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, (A) caused by the willful misconduct or gross
negligence of any Indemnitee in determining whether a request presented
under any Canadian Letter of Credit complied with the terms of such
Canadian Letter of Credit or (B) caused by the Canadian Issuing Lender's
failure to pay under any Canadian Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of
such Canadian Letter of Credit (unless such payment is prohibited by any
law, regulation, court order or decree).
(ii) Each Canadian Borrower agrees, as between such Canadian
Borrower and the Canadian Issuing Lender, such Canadian Borrower shall
assume all risks of the acts, omissions or misuse by the beneficiary of
any Canadian Letter of Credit issued for the account of such Canadian
Borrower.
(iii) The Canadian Issuing Lender shall not, in any way, be liable
for any failure by the Canadian Issuing Lender or anyone else to pay any
drawing under any Canadian Letter of Credit as a result of any action by
any Governmental Authority or any other cause beyond the control of the
Canadian Issuing Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Canadian Borrowers contained in
subsection (d) above. The obligations of the Canadian Borrowers under this
subsection (h) shall survive the termination of this Credit Agreement. No
acts or omissions of any current or prior beneficiary of a Canadian Letter
of Credit shall in any way
44
affect or impair the rights of the Canadian Issuing Lender to enforce any
right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Canadian Borrowers shall have no obligation to
indemnify the Canadian Issuing Lender in respect of any liability incurred
by the Canadian Issuing Lender (A) arising out of the gross negligence or
willful misconduct of the Canadian Issuing Lender, or (B) caused by the
Canadian Issuing Lender's failure to pay under any Canadian Letter of
Credit after presentation to it of a request strictly complying with the
terms and conditions of such Canadian Letter of Credit, as determined by a
court of competent jurisdiction, unless such payment is prohibited by any
law, regulation, court order or decree.
(i) Responsibility of Canadian Issuing Lender. It is expressly understood
and agreed that the obligations of the Canadian Issuing Lender hereunder to the
Canadian Lenders are only those expressly set forth in this Credit Agreement and
that the Canadian Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 3.3 shall
be deemed to prejudice the right of any Canadian Lender to recover from the
Canadian Issuing Lender any amounts made available by such Canadian Lender to
the Canadian Issuing Lender pursuant to this Section 3.3 in the event that it is
determined by a court of competent jurisdiction that the payment with respect to
a Canadian Letter of Credit constituted gross negligence or willful misconduct
on the part of the Canadian Issuing Lender.
(j) Conflict with Canadian LOC Documents. In the event of any conflict
between this Credit Agreement and any Canadian LOC Document (including any
letter of credit application), this Credit Agreement shall control.
3.4 BANKERS' ACCEPTANCES.
(a) Issuance. Subject to the terms and conditions hereof and any other
terms and conditions which a Canadian Lender may reasonably require (so long as
such terms and conditions do not impose any financial obligation on or require
any Lien (not otherwise contemplated by this Credit Agreement) to be given by
any Consolidated Party or conflict with any obligation of, or detract from any
action which may be taken by, any Canadian Borrower under this Credit
Agreement), each Canadian Lender agrees, severally and not jointly, at any time
and from time to time from the Closing Date to the Termination Date, to create
Bankers' Acceptances by accepting drafts of a Canadian Borrower presented to it
for acceptance in an amount equal to such Canadian Lender's Commitment
Percentage of such Bankers' Acceptances as a Canadian Borrower may request on
such date; provided, however, that the aggregate amount of Canadian Revolving
Loans outstanding plus the aggregate principal amount of outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus the BA
Outstandings may not exceed the Canadian Revolving Committed Amount. Upon the
acceptance of any draft of a Canadian Borrower pursuant hereto, such Canadian
Borrower shall pay to the Canadian Lender accepting the same, in advance, the
Acceptance Fee. Forthwith after each request for drawdown of, continuation of or
conversion into Bankers' Acceptances, the Canadian Agent shall notify each
Canadian Lender of the amount and denomination of the Bankers' Acceptances to be
accepted by such Canadian Lender. Each Canadian Borrower shall as soon as
practical deliver to the Canadian Agent a notice confirming the issuance of
Bankers' Acceptances drawn by it and specifying the net proceeds derived
therefrom. For greater certainty, with respect to each extension of credit by
way of Bankers' Acceptances from the Canadian Lenders, each Bankers' Acceptance
shall have the same term.
(b) General Provisions regarding Bankers' Acceptances.
45
(i) Any draft tendered by a Canadian Borrower for acceptance by a Canadian
Lender shall be payable in Canada, shall be in the standard form of bankers'
acceptance accepted by such Canadian Lender and shall have a term ending on a
Business Day not less than 30 days (or any earlier date, subject to
availability) or more than 180 days from the date of acceptance. Each extension
of credit by way of Bankers' Acceptances from the Canadian Lenders shall be for
the minimum aggregate principal amount of C$1,500,000 and in multiples of
C$100,000. Each Bankers' Acceptance shall be dated the date such Bankers'
Acceptance is issued.
(ii) On presentation of a draft for acceptance the applicable Canadian
Borrower shall pay to the applicable Canadian Lender a stamping fee calculated
on the principal amount and for the term of the draft equal to the Applicable
Percentage.
(iii) All Bankers' Acceptances to be accepted by the Canadian Lenders
shall be obtained through the Canadian Agent. Each Canadian Lender agrees to
purchase at the Discount Rate each Bankers' Acceptance accepted by it and to
provide to the Canadian Agent for the account of the applicable Canadian
Borrower the discount proceeds less the stamping fee. A Canadian Lender may
hold, sell, rediscount or otherwise dispose of any or all Bankers' Acceptances
accepted and purchased by it.
(iv) The applicable Canadian Borrower shall provide for each of the
Bankers' Acceptances at their respective maturities at the Canadian Agent's main
branch in Toronto, Canada (either with the proceeds of a Canadian Revolving Loan
obtained hereunder or otherwise). The Canadian Borrowers will continue to be
required to provide as aforesaid for each of the Bankers' Acceptances at
maturity notwithstanding the fact that the applicable Canadian Lender may be the
holder of a Bankers' Acceptance previously issued by that Canadian Lender. Any
amount owing in respect of any Bankers' Acceptance which is not paid in
accordance with the foregoing shall be subject to the same terms as are
applicable to Canadian Base Rate Loans, but be payable on demand.
(v) In the event that demand is made on the Canadian Borrowers pursuant to
Section 9.2, the Canadian Borrowers who have then outstanding any Bankers'
Acceptance(s) shall forthwith pay to the Canadian Lenders an amount equal to
each such Canadian Lender's maximum potential liability under outstanding
Bankers' Acceptances stamped by it on behalf of the applicable Canadian
Borrower. Such amount shall be held by the Canadian Lenders for set-off against
future indebtedness owing by the applicable Canadian Borrower to the Canadian
Lenders in respect of such Bankers' Acceptance(s).
(vi) To facilitate acceptance of drafts, each Canadian Borrower hereby
appoints each Canadian Lender as its attorney to sign and endorse on its behalf
(in accordance with a request under section 3.4(a) above), in handwriting or by
facsimile or mechanical signature as and when deemed necessary by such Canadian
Lender, blank drafts in the form requested by such Canadian Lender. In this
respect, it is each Canadian Lender's responsibility to maintain an adequate
supply of such blank forms of draft for acceptance under this Credit Agreement.
All such drafts signed and/or endorsed by a Canadian Lender on behalf of a
Canadian Borrower pursuant to such a request shall be deemed to have been
presented by such Canadian Borrower for acceptance and shall bind such Canadian
Borrower as fully and effectually as if signed in the handwriting of and duly
issued by the proper signing officers of such Canadian Borrower. Notwithstanding
that any person whose signature appears on any Bankers' Acceptance may no longer
be an authorized signatory for any Canadian Lender or Canadian Borrower at the
date of issuance of a Bankers' Acceptance, such signature shall nevertheless be
valid and sufficient for all purposes as if such authority had remained in force
at the time of such issuance and any such Bankers' Acceptance so signed shall be
binding on the applicable Canadian Borrower. Each Canadian Lender shall maintain
a record with respect to Bankers' Acceptances (A) accepted and purchased by it
46
hereunder, and (B) cancelled at their respective maturities. On request by or on
behalf of a Canadian Borrower, a Canadian Lender shall cancel all forms of
Bankers' Acceptance which have been pre-signed or pre-endorsed on behalf of such
Canadian Borrower and which are held by such Canadian Lender and are not
required to be issued in accordance with such Canadian Borrower's request(s).
Each Canadian Borrower hereby confirms that each Canadian Lender shall be
entitled to rely upon instructions provided by Airgas regarding the completion
of drafts on behalf of any Canadian Borrower hereunder.
(vii) Each Canadian Borrower shall ensure that no Bankers' Acceptance it
draws has a maturity date beyond the Termination Date.
(c) Transition.
The parties hereto acknowledge that as at the Closing Date, certain
Bankers' Acceptances ("Old BAs") are outstanding which were issued prior to such
date and mature after such date, and agree that the following provisions shall
be applicable to Old BAs:
(i) Any Old BA accepted by a Canadian Lender (as defined in the Existing
Credit Agreement) that is not a party to this Credit Agreement (an "Old Lender")
shall be deemed for purposes of this Credit Agreement to have been issued under
this Credit Agreement; without limiting the generality of the foregoing, the
Face Amount of any such Old BA shall, so long as it remains outstanding, be
included in the BA Outstandings hereunder.
(ii) Any amount paid by a Canadian Lender hereunder to indemnify an Old
Lender as acceptor of any Old BA by reason of the failure of the applicable
Canadian Borrower to comply with Section 3.4(b)(iv) above shall be subject to
the same terms as are applicable to a Canadian Base Rate Loan made by such
Canadian Lender, but be payable on demand, and the obligation of the applicable
Canadian Borrower to pay any such amount shall be a Canadian Obligation.
(iii) If and to the extent that the Applicable Percentage of a Canadian
Lender hereunder differs from the Applicable Percentage of such Canadian Lender
(in its capacity as a Canadian Lender under the Existing Credit Agreement), the
liability and entitlement of such Canadian Lender in respect of any Old BA shall
be determined by its Applicable Percentage hereunder rather than by its
Applicable Percentage under the Existing Credit Agreement, and the Canadian
Lenders shall make such payments to one another as shall be necessary to give
effect to each such change in Applicable Percentage, including without
limitation the calculation of the Acceptance Fee to which such Canadian Lender
is entitled for the period from (but excluding) the Closing Date to (and
including) the maturity of the Old BA in respect of which an Acceptance Fee was
paid upon issuance.
3.5 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 on which (A) such Canadian Borrower has paid all of
the Canadian Obligations owing by such Canadian Borrower, and (B) no Canadian
Letter of Credit issued at the request of such Canadian Borrower remains
outstanding.
47
3.6 RESET MECHANISM.
Each Canadian Lender agrees that it will, at any time or from time to
time, upon the request of the Canadian Agent, purchase portions of the
outstanding Canadian Revolving Loans, Canadian Swingline Loans, Canadian LOC
Obligations and BA Outstandings made available by the other Canadian Lenders
hereunder and make any other adjustments which may be necessary or appropriate,
in order that the amount of such outstanding Canadian Revolving Loans, Canadian
Swingline Loans, Canadian LOC Obligations and BA Outstandings made available by
the respective Canadian Lenders, as adjusted pursuant to this Section 3.6, will
be in the same proportions as the amount which each Canadian Lender's Canadian
Commitment Percentage bears to the total Canadian Commitment Percentages of all
the Canadian Lenders.
3.7 CERTAIN WAIVERS.
Each Canadian Borrower waives presentment for payment and any other
defense to the payment of any amounts due to any Canadian Lender in respect of
any Bankers' Acceptance accepted and purchased by such Canadian Lender pursuant
to this Credit Agreement which might exist solely by reason of the Banker's
Acceptance being held, at the maturity thereof, by such Canadian Lender in its
own right and each Canadian Borrower agrees not to claim any days of grace in
any action brought for payment of the amount payable by such Canadian Borrower
under a Banker's Acceptance.
ARTICLE IV
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
4.1 DEFAULT RATE.
(a) Payment Defaults. Upon the occurrence, and during the continuance, of
an Event of Default of the type described in Section 9.1(a), the principal of
and, to the extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear interest, payable
on demand, at a per annum rate 2% greater than the rate which would otherwise be
applicable (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the U.S. Base Rate plus the Applicable
Percentage).
(b) Non-Payment Defaults. Except as provided in subsection (a) above,
during the continuance of any Event of Default for a period of more than 30 days
from the date Airgas receives notice thereof from the U.S. Agent, the principal
of and, to the extent permitted by law, interest on the Loans and any other
amounts owing hereunder or under the other Credit Documents shall, at the
discretion of the Required Lenders, bear interest, payable on demand, at a per
annum rate 2% greater than the rate which would otherwise be applicable (or if
no rate is applicable, whether in respect of interest, fees or other amounts,
then 2% greater than the U.S. Base Rate plus the Applicable Percentage).
4.2 EXTENSION AND CONVERSION.
(a) Airgas. Airgas shall have the option, on any Business Day, to extend
existing U.S. Revolving Loans or U.S. Term Loans into a subsequent permissible
Interest Period or to convert any such Loans into Loans of another interest rate
type; provided, however, that (i) except as provided in Section 4.8, Eurodollar
Loans may be converted into U.S. Base Rate Loans only on the last day of the
Interest Period applicable thereto, (ii) Loans extended as, or converted into,
Eurodollar Loans shall be subject to the terms of the definition of "Interest
Period" set forth in Section 1.1 and shall be in such minimum amounts as
provided in Section 2.1(b)(ii), (iii) no more than 11 Eurodollar Loans shall be
48
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), (iv) any request for extension
or conversion of a Eurodollar Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month and
(v) Competitive U.S. Loans and U.S. Swingline Loans may not be extended or
converted pursuant to this Section 4.2. Each such extension or conversion shall
be effected by Airgas by giving a Notice of Extension/Conversion (or telephone
notice promptly confirmed in writing) to the U.S. Agent prior to 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a U.S. Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a U.S. Base Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed extension
or conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. In the event Airgas fails to request
extension or conversion of any Eurodollar Loan in accordance with this Section,
or any such conversion or extension is not permitted or required by this
Section, then such Eurodollar Loan shall be automatically converted into a U.S.
Base Rate Loan at the end of the Interest Period applicable thereto. The U.S.
Agent shall give each affected Lender notice as promptly as practicable of any
such proposed extension or conversion affecting any Loan.
(b) Canadian Borrowers. A Canadian Borrower shall have the option, on any
Business Day, to convert a Canadian Base Rate Loan into a Bankers' Acceptance,
to continue a maturing Bankers' Acceptance in accordance with Section 3.4 or to
convert a maturing Bankers' Acceptance into a Canadian Base Rate Loan; provided,
however, (i) each such continuation or conversion must be requested by such
Canadian Borrower pursuant to a written Notice of Extension/Conversion, in the
form of Exhibit 4.2, in compliance with the terms set forth below and (ii) such
Canadian Borrower must comply with all the requirements of Section 3.4 and such
continuation or conversion shall be in such minimum amounts as provided in
Sections 3.1(b)(ii) and 3.4(b)(i), and (iii) failure by such Canadian Borrower
to properly continue a Bankers' Acceptance shall be deemed a conversion to a
Canadian Base Rate Loan. Each continuation or conversion must be requested by
such Canadian Borrower no later than 10:00 a.m., Toronto, Ontario time, on (A)
the date of a requested conversion of a Bankers' Acceptance to a Canadian Base
Rate Loan or (B) the third Business Day prior to the date of a requested
continuation of a Bankers' Acceptance or conversion of a Canadian Base Rate Loan
to a Bankers' Acceptance, in each case pursuant to a written Notice of
Extension/Conversion submitted to the Canadian Agent which shall set forth (x)
whether the Loans to be continued or converted are Canadian Revolving Loans, (y)
whether the Canadian Borrower wishes to continue or convert such Loans and (z)
if the request is to continue a Bankers' Acceptance or convert a Canadian Base
Rate Loan to a Bankers' Acceptance, the maturity date applicable thereto.
4.3 PREPAYMENTS.
(a) Voluntary Prepayments. Loans may be prepaid in whole or in part from
time to time, subject to Section 4.11, but otherwise without premium or penalty;
provided, however, that (i) Eurodollar Loans and Competitive U.S. Loans may only
be prepaid on three Business Days' prior written notice to the U.S. Agent, and
specifying the applicable Loans to be prepaid; (ii) any prepayment of Eurodollar
Loans, Competitive U.S. Loans or Quoted Rate U.S. Swingline Loans will be
subject to Section 4.11; (iii) any portion of the Canadian Revolving Committed
Amount represented by a Bankers' Acceptance may not be prepaid prior to the
maturity of such Bankers' Acceptance; (iv) each such partial prepayment of Loans
shall be (A) in the case of U.S. Revolving Loans and the U.S. Term Loan, in a
minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof, (B) in the case of Canadian Revolving Loans, in a minimum
principal amount of C$1,500,000 and integral multiples of
49
C$100,000 in excess thereof and (C) in the case of U.S. Swingline Loans, in a
minimum principal amount of $100,000 and integral multiples thereof; and (v) any
prepayment of the U.S. Term Loan shall be applied ratably to the remaining
principal amortization payments thereof. Subject to the foregoing terms, amounts
prepaid under this Section 4.3(a) shall be applied as the applicable Borrower
may elect.
(b) Mandatory Prepayments.
(i) U.S. Revolving Committed Amount. If at any time the sum of the
aggregate principal amount of outstanding U.S. Revolving Loans plus the
aggregate principal amount of outstanding Competitive U.S. Loans plus the
aggregate principal amount of outstanding U.S. Swingline Loans plus U.S.
LOC Obligations outstanding shall exceed the U.S. Revolving Committed
Amount, Airgas shall prepay immediately the outstanding principal balance
on the U.S. Revolving Loans, Competitive U.S. Loans and/or U.S. Swingline
Loans (and after all U.S. Revolving Loans, Competitive U.S. Loans and U.S.
Swingline Loans have been repaid, pay to the U.S. Agent additional cash in
respect of U.S. LOC Obligations, to be held by the U.S. Agent, for the
benefit of the U.S. Issuing Lenders and the U.S. Revolving Lenders, in a
cash collateral account) in an amount sufficient to eliminate such excess.
(ii) Canadian Revolving Committed Amount. If at any time the sum of
the aggregate principal amount of outstanding Canadian Revolving Loans
plus the aggregate principal amount of outstanding Canadian Swingline
Loans plus Canadian LOC Obligations plus the BA Outstandings outstanding
shall exceed the Canadian Revolving Committed Amount, the Canadian
Borrowers shall prepay immediately the outstanding principal balance on
the Canadian Revolving Loans or Canadian Swingline Loans (and, after all
Canadian Revolving Loans and Canadian Swingline Loans have been repaid,
pay to the Canadian Agent additional cash in respect of Canadian LOC
Obligations and BA Outstandings, to be held by the Canadian Agent, for the
benefit of the Canadian Issuing Lender and the Canadian Lenders, in a cash
collateral account) in an amount sufficient to eliminate such excess.
(iii) Asset Dispositions. Immediately upon the occurrence of any
Asset Disposition Prepayment Event, Airgas shall prepay (or shall cause
the applicable Canadian Borrower to prepay) the Loans in an aggregate
amount equal to 100% of the Net Cash Proceeds of the related Asset
Disposition not applied (or caused to be applied) by the Credit Parties
during the related Application Period to make Eligible Reinvestments as
contemplated by the terms of Section 8.4(b)(v) (such prepayment to be
applied as set forth in clause (iv) below).
(iv) Application of Certain Mandatory Prepayments. All amounts
required to be paid pursuant to Section 4.3(b)(iii) shall be applied
first to the U.S. Term Loan (ratably to the remaining
principal amortization payments thereof), and
second pro rata to (1) the Credit Party Obligations consisting
of U.S. Swingline Loans, U.S. Revolving Loans, Competitive U.S.
Loans and U.S. LOC Obligations (first, ratably to U.S. Swingline
Loans, U.S. Revolving Loans and Competitive U.S. Loans (and, second,
after all such Loans have been repaid, to the U.S. Agent additional
cash in respect of U.S. LOC Obligations, to be held by the U.S.
Agent, for the benefit of the Lenders, in a cash collateral
account)) and (2) to the Canadian Obligations consisting of Canadian
Swingline Loans, Canadian Revolving Loans, BA Outstandings and
Canadian LOC Obligations (first to the Canadian Swingline Loans,
second to the Canadian Revolving Loans, third to the BA Outstandings
in direct order of maturities (and, fourth,
50
after all Canadian Revolving Loans, Canadian Swingline Loans and BA
Outstandings have been repaid, to the Canadian Agent additional cash
in respect of Canadian LOC Obligations, to be held by the Canadian
Agent, for the benefit of the Lenders, in a cash collateral
account)).
Within the parameters of the applications set forth above,
prepayments of U.S. Revolving Loans and the U.S. Term Loan shall be
applied first to U.S. Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities. All prepayments under this
Section 4.3(b) shall be subject to Section 4.11 and be accompanied by
interest on the principal amount prepaid through the date of prepayment.
(v) Prepayment Account. If Airgas is required to make a mandatory
prepayment of Eurodollar Loans under this Section 4.3(b), Airgas shall
have the right, in lieu of making such prepayment in full, to deposit an
amount equal to such mandatory prepayment with the U.S. Agent in a cash
collateral account maintained (pursuant to documentation reasonably
satisfactory to U.S. Agent) by and in the sole dominion and control of
U.S. Agent. Any amounts so deposited shall be held by the U.S. Agent as
collateral for the prepayment of such Eurodollar Loans and shall be
applied to the prepayment of the applicable Eurodollar Loans at the end of
the current Interest Periods applicable thereto. At the request of Airgas,
amounts so deposited shall be invested by the U.S. Agent in Cash
Equivalents maturing prior to the date or dates on which it is anticipated
that such amounts will be applied to prepay such Eurodollar Loans; any
interest earned on such Cash Equivalents will be for the account of Airgas
and Airgas will deposit with the U.S. Agent the amount of any loss on any
such Cash Equivalents to the extent necessary in order that the amount of
the prepayment to be made with the deposited amounts may not be reduced.
4.4 TERMINATION AND REDUCTION OF COMMITMENTS; INCREASE OF COMMITMENTS.
(a) Voluntary Reductions; Terminations.
(i) Airgas may from time to time permanently reduce or terminate the
U.S. Revolving Committed Amount in whole or in part (in minimum aggregate
amounts of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if less, the full remaining amount of the U.S. Revolving
Committed Amount)) upon five Business Days' prior written notice to the
U.S. Agent. The U.S. Revolving Commitments, the U.S. Swingline Commitment
and the U.S. LOC Commitments shall automatically terminate on the
Termination Date; and
(ii) Airgas or the Canadian Borrowers may from time to time
permanently reduce or terminate the Canadian Revolving Committed Amount in
whole or in part (in minimum aggregate amounts of C$1,500,000 or in
integral multiples of C$100,000 in excess thereof (or, if less, the full
remaining amount of the Canadian Revolving Committed Amount)) upon five
Business Days' prior written notice to the U.S. Agent and the Canadian
Agent. The Canadian Revolving Commitments, the Canadian Swingline
Commitment and the Canadian LOC Commitment shall automatically terminate
on the Termination Date;
provided, however, no such termination or reduction shall be made which would
cause (i) the aggregate principal amount of outstanding U.S. Revolving Loans
plus the aggregate principal amount of outstanding Competitive U.S. Loans plus
the aggregate principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding to exceed the U.S. Revolving Committed Amount or (ii)
the aggregate principal amount of outstanding Canadian Revolving Loans plus the
aggregate principal amount of outstanding Canadian Swingline Loans plus Canadian
LOC Obligations outstanding plus the BA
51
Outstandings to exceed the Canadian Revolving Committed Amount unless,
concurrently with such termination or reduction, the respective Credit Party
Obligations are repaid to the extent necessary to eliminate such excess. Each
Agent shall promptly notify each affected Lender of receipt by such Agent of any
notice pursuant to this Section 4.4(a).
The applicable Borrowers shall pay to the applicable Agent for the account of
the applicable Lenders in accordance with the terms of Section 4.5(a), on the
date of each termination or reduction of the U.S. Revolving Committed Amount or
the Canadian Revolving Committed Amount, the U.S. Unused Fee or the Canadian
Unused Fee, as applicable, accrued through the date of such termination or
reduction on the amount of the U.S. Revolving Committed Amount or the Canadian
Revolving Committed Amount so terminated or reduced.
(b) Increase in Commitments. Following the Closing Date, Airgas shall have
the right, upon at least fifteen (15) Business Days' prior written notice to the
U.S. Agent, to increase the U.S. Revolving Committed Amount and/or the U.S. Term
Loan Committed Amount by up to $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 Article VI 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 an integral multiple of $1,000,000 and
shall in no event be less than $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 Exhibit 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
Airgas) it may reasonably request relating to the corporate or other
necessary authority for and the validity of such increase in the U.S.
Revolving 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.
(c) (i) Upon the effectiveness of the increase in the U.S. Revolving
Committed Amount and/or the U.S. Term Loan Committed Amount, as applicable,
pursuant to subsection (b), (A) the U.S.
52
Revolving Commitment Percentage and/or the U.S. Term Loan Percentage, as
applicable, of each Lender shall be automatically adjusted to give effect to
such increase, provided that the amount of each Lender's U.S. Revolving
Commitment and/or U.S. Term Loan Commitment, as applicable, (other than a Lender
whose U.S. Revolving Commitment and/or U.S. Term Loan Commitment, as applicable,
shall have been increased in connection with such increase) shall remain
unchanged and (B) Airgas, the U.S. Agent 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 U.S. Revolving Commitment Percentage 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 (ii) in
the case of an increase in the U.S. Term Loan Committed Amount, beginning with
the date of the next principal amortization payment occurring after 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(c)) not taken place.
4.5 FEES.
(a) Unused Fees.
(i) U.S. Unused Fee. In consideration of the U.S. Revolving
Commitments of the U.S. Revolving Lenders hereunder, Airgas agrees to pay
to the U.S. Agent for the account of the U.S. Revolving Lenders a fee (the
"U.S. Unused Fee") on the actual daily amount by which (a) the U.S.
Revolving Committed Amount exceeds (b) the sum of (i) the outstanding
aggregate principal amount of all U.S. Revolving Loans plus (ii) the
outstanding aggregate principal amount of all U.S. LOC Obligations plus
(iii) 50% of the outstanding aggregate principal amount of all Competitive
U.S. Loans, computed at a per annum rate for each day during the
applicable period at a rate equal to the Applicable Percentage in effect
from time to time. The U.S. Unused Fee shall commence to accrue on the
Closing Date and shall be due and payable in arrears on the last Business
Day of each March, June, September and December (and any date that the
U.S. Revolving Committed Amount is reduced as provided in Section 4.4 and
the Termination Date) for the immediately preceding quarter (or portion
thereof), beginning with the first of such dates to occur after the
Closing Date.
(ii) Canadian Unused Fee. In consideration of the Canadian Revolving
Commitments of the Canadian Lenders hereunder, the Canadian Borrowers
agree to pay to the Canadian Agent for the account of the Canadian Lenders
a fee (the "Canadian Unused Fee") on the actual daily amount by which (a)
the Canadian Revolving Committed Amount exceeds (b) the sum of (i) the
outstanding aggregate principal amount of all Canadian Revolving Loans
plus (ii) the outstanding aggregate principal amount of all Canadian LOC
Obligations plus (iii) the aggregate BA Outstandings, computed at a per
annum rate for each day during the applicable period at a rate equal to
the Applicable Percentage in effect from time to time. The Canadian Unused
Fee shall commence to accrue on the Closing Date and shall be due and
payable in arrears on the first Business Day of each April, July, October
and January (and any date that the Canadian Revolving Committed Amount is
reduced as provided in Section 4.4 and the Termination Date) for the
immediately preceding quarter (or portion thereof), beginning with the
first of such dates to occur after the Closing Date.
53
(b) U.S. Letter of Credit Fees.
(i) Issuance Fee for Standby U.S. Letters of Credit. In
consideration of the issuance of standby U.S. Letters of Credit hereunder,
Airgas promises to pay to the U.S. Agent for the account of each U.S.
Revolving Lender a fee on such U.S. Revolving Lender's U.S. Revolving
Commitment Percentage of the average daily maximum amount available to be
drawn under each such standby U.S. Letter of Credit computed at a per
annum rate for each day from the date of issuance to the date of
expiration equal to the Applicable Percentage. Such fee will be payable
quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion
thereof).
(ii) Drawing Fee for Trade U.S. Letters of Credit. In consideration
of the issuance of trade U.S. Letters of Credit hereunder, Airgas promises
to pay to the U.S. Agent for the account of each U.S. Revolving Lender a
fee equal to the Applicable Percentage on such U.S. Revolving Lender's
U.S. Revolving Commitment Percentage of the amount of each drawing under
any such trade U.S. Letter of Credit. Such fee will be payable on each
date of drawing under a trade U.S. Letter of Credit.
(iii) U.S. Issuing Lender Fronting Fees. In addition to the fees
payable pursuant to clauses (i) and (ii) above, Airgas promises to pay to
the applicable U.S. Issuing Lender for its own account without sharing by
the other Lenders (A) an issuance fee in an amount agreed between Airgas
and such U.S. Issuing Lender on the face amount of each trade U.S. Letter
of Credit, payable on each date of issuance or extension of a trade U.S.
Letter of Credit, (B) a drawing fee in an amount agreed between Airgas and
such U.S. Issuing Lender on the amount of each drawing on any trade U.S.
Letter of Credit, payable on each date of drawing under a trade U.S.
Letter of Credit, (C) the letter of credit fronting and negotiation fees
agreed to by Airgas and such U.S. Issuing Lender and (D) the customary
charges from time to time of such U.S. Issuing Lender agreed to by Airgas
with respect to the issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under, such U.S. Letters of
Credit.
(c) Canadian Letter of Credit Fees.
(i) Issuance Fee for Standby Canadian Letters of Credit. In
consideration of the issuance of standby Canadian Letters of Credit
hereunder, each Canadian Borrower promises to pay to the Canadian Agent
for the account of each Canadian Lender a fee on such Canadian Lender's
Canadian Commitment Percentage of the average daily maximum amount
available to be drawn under each such standby Canadian Letter of Credit
computed at a per annum rate for each day from the date of issuance to the
date of expiration equal to the Applicable Percentage. Such fee will be
payable quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion
thereof).
(ii) Drawing Fee for Trade Canadian Letters of Credit. In
consideration of the issuance of trade Canadian Letters of Credit
hereunder, each Canadian Borrower promises to pay to the Canadian Agent
for the account of each Canadian Lender a fee equal to the Applicable
Percentage on such Lender's Canadian Commitment Percentage of the amount
of each drawing under any such trade Canadian Letter of Credit. Such fee
will be payable on each date of drawing under a trade Canadian Letter of
Credit.
(iii) Canadian Issuing Lender Fronting Fees. In addition to the fees
payable pursuant to clauses (i) and (ii) above, each Canadian Borrower
promises to pay to the Canadian Issuing Lender
54
for its own account without sharing by the other Lenders (A) an issuance
fee in an amount agreed between Airgas and the Canadian Issuing Lender on
the face amount of each trade Canadian Letter of Credit, payable on each
date of issuance or extension of a trade Canadian Letter of Credit, (B) a
drawing fee in an amount agreed between Airgas and the Canadian Issuing
Lender on the amount of each drawing on any trade Canadian Letter of
Credit, payable on each date of drawing under a trade Canadian Letter of
Credit, (C) the letter of credit fronting and negotiation fees agreed to
by Airgas and the Canadian Issuing Lender and (D) the customary charges
from time to time of the Canadian Issuing Lender agreed to by Airgas with
respect to the issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Canadian Letters of Credit.
(d) Agent Fees.
(i) U.S. Agent Fees. Airgas agrees to pay to the U.S. Agent, for its
own account, the fees referred to in the U.S. Agent's Fee Letter.
(ii) Canadian Agent Fees. The Canadian Borrowers agree to pay to the
Canadian Agent, for its own account, the fees referred to in the Canadian
4.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption of,
or any change in, or any change by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof in
the interpretation or administration of, any applicable law, rule or regulation
regarding capital adequacy, or compliance by such Lender 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 Lender's capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy), then, upon notice from such Lender to the
applicable Borrowers, the Borrowers shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction. Upon making a request for such additional amount hereunder, such
Lender will furnish to the Borrowers a statement certifying the amount of such
reduction and describing the event giving rise to such reduction. Each
determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
4.7 INABILITY TO DETERMINE INTEREST RATE.
(a) If prior to the first day of any Interest Period, the U.S. Agent shall
have determined (which determination shall be conclusive and binding upon
Airgas) that, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, the U.S. Agent shall give telecopy or telephonic notice thereof
to Airgas and the affected Lenders as soon as practicable thereafter. If such
notice is given (a) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as U.S. Base Rate Loans and (b) any Loans
that were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans shall be converted to or continued as U.S. Base
Rate Loans. Until such notice has been withdrawn by the U.S. Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall Airgas have the
right to convert U.S. Base Rate Loans to Eurodollar Loans.
(b) If the Canadian Agent determines in good faith, which determination
shall be final, conclusive and binding upon the Canadian Borrowers absent
manifest error, and notifies the Canadian
55
Borrowers and each of the Canadian Lenders that, by reason of circumstances
affecting the money market (i) there is no market for Bankers' Acceptances; or
(ii) the demand for Bankers' Acceptances is insufficient to allow the sale or
trading of the Bankers' Acceptances created and purchased hereunder, then,
(A) the right of the Canadian Borrowers to request a borrowing by
way of Bankers' Acceptances shall be suspended until the Canadian Agent
determines in good faith that the circumstances causing such suspension no
longer exist and the Canadian Agent so notifies the Canadian Borrowers;
and
(B) any notice of requested Bankers' Acceptances which is
outstanding shall be canceled and the Bankers' Acceptance requested
therein shall not be made.
The Canadian Agent shall promptly notify the Canadian Borrowers of the
suspension of the Canadian Borrowers' right to request a Bankers' Acceptance and
of the termination of any such suspension.
4.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to Airgas and
the U.S. Agent (which notice shall be withdrawn whenever such circumstances no
longer exist), (b) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert a U.S. Base Rate Loan to
Eurodollar Loans shall forthwith be canceled and, until such time as it shall no
longer be unlawful for such Lender to make or maintain Eurodollar Loans, such
Lender shall then have a commitment only to make a U.S. Base Rate Loan when a
Eurodollar Loan is requested and (c) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to U.S. Base Rate
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, Airgas shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 4.11.
4.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurodollar Loans, Competitive U.S.
Loans made by it, any Bankers' Acceptances accepted by it, or its
obligation to make Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for (i) Non-Excluded
Taxes covered by Section 4.10 (including Non-Excluded Taxes imposed solely
by reason of any failure of such Lender to comply with its obligations
under Section 4.10(b)) and (ii) changes in taxes measured by or imposed
upon the overall net income, or franchise tax (imposed in lieu of such net
income tax), of such Lender or its applicable lending office, branch, or
any affiliate thereof)); or
56
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining any Eurodollar Loan, Competitive U.S. Loan or Canadian
Revolving Loan, issuing or participating in any Letter of Credit or of accepting
any Bankers' Acceptance or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrowers from such Lender,
through an Agent, in accordance herewith, the Borrowers shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable,
provided that, in any such case, Airgas may elect to convert the Eurodollar
Loans made by such Lender hereunder to U.S. Base Rate Loans by giving the U.S.
Agent at least one Business Day's notice of such election, in which case Airgas
shall promptly pay to such Lender, upon demand, without duplication, such
amounts, if any, as may be required pursuant to Section 4.11; provided further,
however, that if the result of any the foregoing shall be to decrease the cost
to any Lender of making or maintaining any Eurodollar Loan, Competitive U.S.
Loan or Canadian Revolving Loan, of issuing or participating in any Letter of
Credit or of accepting any Bankers' Acceptance by a material amount, then such
Lender will credit to Airgas an amount equal to such decreased costs. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the Credit Parties,
through the appropriate Agent, certifying (x) that one of the events described
in this paragraph (a) has occurred and describing in reasonable detail the
nature of such event, (y) as to the increased cost or reduced amount resulting
from such event and (z) as to the additional amount demanded by such Lender and
a reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender, through the appropriate Agent, to the Borrowers shall be conclusive
and binding on the parties hereto in the absence of manifest error. Each Lender
agrees that it will promptly refund any amounts received by it pursuant to this
Section 4.9 that were erroneously billed to the Borrowers, together with
interest thereon at the U.S. Base Rate or Canadian Base Rate, as applicable.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.10 TAXES.
(a) Except as provided below in this subsection, all payments made by the
Credit Parties under this Credit Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official, excluding
taxes measured by or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all franchise
taxes, branch taxes, taxes on doing business or taxes on the overall capital or
net worth of any Lender or its applicable lending office, or any branch or
affiliate thereof, in each case imposed in lieu of net income taxes, imposed:
(i) by the jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to an Agent or any Lender hereunder, (A) the amounts so payable to
57
such Agent or such Lender shall be increased to the extent necessary to yield to
such Agent or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement, provided, however, that the Credit Parties
shall be entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States or a state thereof if such Lender
fails to comply with the requirements of paragraph (b) of this subsection
whenever any Non-Excluded Taxes are payable by the Credit Parties, and (B) as
promptly as possible thereafter the Credit Parties shall send to such Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrowers showing
payment thereof. If the Credit Parties fail to pay any Non-Excluded Taxes when
due to the appropriate taxing authority or fails to remit to such Agent the
required receipts or other required documentary evidence, the Credit Parties
shall indemnify such Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by such Agent or any Lender as a result of
any such failure. Each Lender agrees that it will promptly refund any amounts
received by it pursuant to this Section 4.10 that were erroneously billed to the
Credit Parties, together with interest thereon at the U.S. Base Rate or Canadian
Base Rate, as applicable. The agreements in this subsection shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States or a state thereof shall deliver to Airgas and the U.S. Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date
on which such Lender becomes a Lender under this Credit Agreement (and from time
to time thereafter upon the request of Airgas or the U.S. Agent, but only if
such Lender is legally entitled to do so), whichever of the following is
applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which
the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10
percent shareholder" of Airgas within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming
an exemption from withholding tax with respects to payments under
this Credit Agreement duly completed together with such
supplementary documentation as may be prescribed by applicable law.
4.11 INDEMNITY.
Airgas promises to indemnify each Lender and to hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (other than
through such Lender's breach of its obligations hereunder, gross negligence or
willful misconduct) as a consequence of (a) default by Airgas in making a
borrowing of, conversion into or continuation of Eurodollar Loans or Quoted Rate
U.S. Swingline Loans after Airgas has given a notice requesting the same in
accordance with the provisions of this Credit Agreement, (b) default by Airgas
in making any prepayment of a Eurodollar Loan or a Quoted Rate U.S. Swingline
Loan after Airgas has given a notice thereof in accordance with the provisions
of this Credit Agreement or (c) the making of a prepayment of Eurodollar Loans
or Quoted Rate U.S. Swingline Loans on a day which is not the last day of an
Interest Period with respect thereto. With respect to Eurodollar Loans,
58
such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurodollar
Loans provided for herein (excluding, however, the Applicable Percentage
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. The covenants of Airgas set forth in
this Section 4.11 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.12 PAYMENTS GENERALLY; AGENTS' CLAWBACK.
(a) General. All payments to be made by a Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, (i) all payments in respect of
Canadian Revolving Loans, Canadian Swingline Loans, Canadian Letters of Credit,
Bankers' Acceptances, interest on Canadian Revolving Loans, the Acceptance Fee
on Bankers' Acceptances or the Canadian Unused Fee shall be made to the Canadian
Agent, for the account of the respective Lenders to which such payment is owed,
at the Canadian Agent's office specified in Schedule 11.1 in Canadian Dollars
and in immediately available funds not later than 2:00 P.M. (Toronto, Ontario
time) on the date specified herein and (ii) all other payments hereunder (other
than payments in respect of Competitive U.S. Loans) shall be made to the U.S.
Agent, for the account of the respective Lenders to which such payment is owed,
at the U.S. Agent's office specified in Schedule 11.1 in U.S. Dollars and in
immediately available funds not later than 2:00 P.M. (Charlotte, North Carolina
time) on the date specified herein. All payments received by the applicable
Agent after such times shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. The relevant
Agent may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the applicable
Credit Parties maintained with such Agent (with notice to such Credit Parties).
The applicable Agent will promptly distribute to each Lender its pro rata share
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender. Subject to the definition of "Interest
Period", if any payment to be made by a Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be. All payments of principal and interest in respect of
Competitive U.S. Loans shall be in accordance with the terms of Section 2.2.
(b) (i) Funding by Lenders; Presumption by Agents. Unless the U.S. Agent
or the Canadian Agent, as appropriate, shall have received notice from a
Lender prior to the proposed date of any extension of credit that such
Lender will not make available to such Agent such Lender's share of such
extension of credit, such Agent may assume that such Lender has made such
share available on such date in accordance with the terms of this Credit
Agreement and may, in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable extension of credit available
to the appropriate Agent, then the applicable Lender and the applicable
Borrower severally agree to pay to such Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to
such Borrower to but excluding the date of payment to such Agent, at (A)
in the case of a payment to be made
59
by such Lender in connection with any extension of credit in U.S. Dollars,
the Federal Funds Rate (or, if greater, a rate determined by the U.S.
Agent in accordance with banking industry rules on interbank compensation)
or, in the case of a payment to be made by such Lender in connection with
any extension of credit in Canadian Dollars, the interbank rate (as
defined in the Canadian Payment Association Rules), and (B) in the case of
a payment to be made by a Borrower in connection with any extension of
credit in U.S. Dollars, the U.S. Base Rate or in the case of a payment to
be made by a Borrower in connection with any extension of credit in
Canadian Dollars, the Canadian Base Rate. If such Borrower and such Lender
shall pay such interest to the appropriate Agent for the same or an
overlapping period, such Agent shall promptly remit to such Borrower the
amount of such interest paid by such Borrower for such period. If such
Lender pays its share of the applicable extension of credit to the
appropriate Agent, then the amount so paid shall constitute such Lender's
Loan included in such extension of credit. Any payment by a Borrower shall
be without prejudice to any claim such Borrower may have against a Lender
that shall have failed to make such payment to the appropriate Agent.
(ii) Payments by Borrowers; Presumptions by Agents. Unless the
appropriate Agent shall have received notice from the applicable Borrower
prior to the date on which any payment is due to such Agent for the
account of the Lenders hereunder that such Borrower will not make such
payment, such Agent may assume that such Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such
assumption, distribute to the appropriate Lenders the amount due. In such
event, if such Borrower has not in fact made such payment, then each of
the applicable Lenders severally agrees to repay to the appropriate Agent
forthwith on demand the amount so distributed to such Lender, in
immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the
date of payment to such Agent, at (A) in the case of any extension of
credit in U.S. Dollars, the Federal Funds Rate (or, if greater, a rate
determined by the U.S. Agent in accordance with banking industry rules on
interbank compensation), or (B) in the case of any extension of credit in
Canadian Dollars, the interbank rate (as defined in the Canadian Payment
Association Rules).
A notice of an Agent to any Lender or a Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest
error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the applicable Agent funds for any extension of credit to be made by such
Lender as provided in this Credit Agreement, and such funds are not made
available to the applicable Borrower by such Agent because the conditions to the
applicable extension of credit set forth in Section 5.2 are not satisfied or
waived in accordance with the terms hereof, such Agent shall return such funds
(in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in other extensions of credit
and to make payments pursuant to Section 11.5(b) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to
make any payment under Section 11.5(b) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under
Section 11.5(b).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any extension of credit hereunder in any particular
place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any such extension of credit in any
particular place or manner.
60
4.13 SHARING OF PAYMENTS.
If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in LOC Obligations or in U.S.
Swingline Loans or Canadian Swingline Loans held by it resulting in such
Lender's receiving payment of a proportion of the aggregate amount of such Loans
or participations and accrued interest thereon greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Agents of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in LOC Obligations,
U.S. Swingline Loans or Canadian Swingline Loans of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans and other
amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section 4.13 shall not be construed to
apply to (x) any payment made by a Borrower pursuant to and in accordance
with the express terms of this Credit Agreement or (y) any payment
obtained by a Lender as consideration for any assignment of or sale of any
of its interests hereunder in accordance with Section 11.3, other than to
a Borrower or any Subsidiary thereof (as to which the provisions of this
Section 4.13 shall apply).
Each Credit Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Credit
Party in the amount of such participation.
4.14 COMPUTATIONS; ALLOCATION OF PAYMENTS POST-ACCELERATION.
(a) Computation of Interest and Fees. All computations of interest for
U.S. Base Rate Loans when the U.S. Base Rate is determined by Bank of America's
"prime rate" shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. Except as expressly provided otherwise
herein, all other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each Loan for the day on which the Loan is made,
and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 4.12(a), bear interest for one
day. Each determination by the applicable Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(b) Allocation of Payments After Acceleration. After acceleration of the
Credit Party Obligations pursuant to Section 9.2, all amounts collected or
received by any Agent or any Lender (i) from the Credit Parties in connection
with or on account of the Credit Party Obligations or any other amounts
outstanding under any of the Credit Documents or (ii) in respect of the
Collateral pledged by the Credit Parties in support of the Credit Party
Obligations, whether received from a Borrower, a Guarantor or otherwise shall be
immediately forwarded to the U.S. Agent and shall be thereafter be paid over or
delivered as follows:
61
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Agents and the
Collateral Agent in connection with enforcing the rights of the Lenders under
the Credit Documents and any protective advances made by the Collateral Agent
with respect to the Collateral under or pursuant to the terms of the Collateral
Documents;
SECOND, to the payment of any fees owed to the Agents;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys' fees) of each of the
Lenders in connection with enforcing its rights under the Credit Documents or
otherwise with respect to the Credit Party Obligations owing to such Lender
ratably among them in proportion to the amounts described in this clause THIRD
payable to them;
FOURTH, to the payment of all of the Credit Party Obligations consisting
of accrued fees and interest ratably among the Lenders in proportion to the
respective amounts described in this clause FOURTH held by them;
FIFTH, to the payment of the outstanding principal amount of the Credit
Party Obligations (including the payment or cash collateralization of the
outstanding LOC Obligations) ratably among the Lenders in proportion to the
respective amounts described in this clause FIFTH held by them;
SIXTH, to all other Credit Party Obligations and other obligations which
shall have become due and payable under the Credit Documents or otherwise and
not repaid pursuant to clauses "FIRST" through "FIFTH" above ratably among the
Lenders in proportion to the respective amounts described in this clause SIXTH
held by them; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing:
(i) to the extent that any amounts available for distribution
pursuant to clause "FIFTH" above are attributable to the issued but
undrawn amount of outstanding U.S. Letters of Credit and Canadian Letters
of Credit, such amounts shall be held by the U.S. Agent and the Canadian
Agent, respectively, in a cash collateral account and applied (A) first,
to reimburse the applicable U.S. Issuing Lender or Canadian Issuing Lender
from time to time for any drawings under such Letters of Credit and (B)
then, following the expiration or cancellation of all Letters of Credit,
to all other obligations of the types described in clauses "FIFTH",
"SIXTH" and "SEVENTH" above in the manner provided in this Section
4.14(b);
(ii) all amounts collected or received by any Agent or any Lender
from the Canadian Credit Parties shall be applied exclusively to the
Canadian Obligations; and
(iii) with respect to any amounts collected or received by any Agent
or any Lender from the U.S. Credit Parties or in respect of the Collateral
pledged by the U.S Credit Parties, clauses "THIRD", "FOURTH" and "FIFTH"
above shall include only that portion, if any, of the Canadian Obligations
that is outstanding and unsecured after taking into account any amounts
collected or received by any Agent or any Lender from
62
the Canadian Credit Parties or in respect of the Collateral, if any,
pledged by the Canadian Credit Parties.
ARTICLE V
CONDITIONS
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial extensions of credit hereunder shall be subject to satisfaction
of the following conditions (in form and substance acceptable to the Lenders):
(a) The U.S. Agent shall have received original counterparts of the
Credit Agreement, the Pledge Agreement and the Intercreditor Agreement
executed by each of the parties thereto;
(b) The U.S. Agent shall have received all documents it may
reasonably request relating to the existence and good standing of each
Credit Party, the corporate or other necessary authority for and the
validity of the Credit Documents, and any other matters relevant thereto,
all in form and substance reasonably satisfactory to the U.S. Agent;
(c) The Agents shall have received a legal opinion of Cravath,
Swaine & Moore LLP, U.S. counsel for the Credit Parties, dated as of the
Closing Date in form and substance reasonably satisfactory to the Agents.
(d) (i) The Agents shall have received a legal opinion of Cassels
Brock & Blackwell, Canadian counsel for the Credit Parties, dated as
of the Closing Date in form and substance reasonably satisfactory to
the Agents.
(ii) The Agents shall have received a legal opinion of special
local counsel for each Credit Party set forth on Schedule 5.1(d) in
form and substance reasonably satisfactory to the Agents.
(e) Each Agent shall have received, for its own account and for the
accounts of the relevant Lenders, all fees and expenses required by this
Credit Agreement or any other Credit Document to be paid to such Agent on
or before the Closing Date;
(f) The U.S. Agent shall have received a certificate or certificates
executed by an Executive Officer of Airgas, in form and substance
satisfactory to the U.S. Agent, stating that (A) each Credit Party is in
compliance with all existing material financial obligations, (B) all
governmental, shareholder and third party consents and approvals, if any,
with respect to the Credit Documents and the transactions contemplated
thereby have been obtained, (C) no action, suit, investigation or
proceeding is pending or, to the best of his knowledge, threatened in any
court or before any arbitrator or governmental instrumentality that
purports to affect any Credit Party or any transaction contemplated by the
Credit Documents that could have a Material Adverse Effect and (D)
immediately after giving effect to the initial extensions of credit under
this Credit Agreement, (1) no Default or Event of Default exists, (2) all
representations and warranties contained herein are, subject to the
limitations set forth herein, true and correct in all material respects
unless the failure to be so true and correct would not be reasonably
expected to have a Material Adverse Effect, (3) the Credit Parties are in
compliance with each of the financial covenants set forth in Section 7.10
as of the first date provided for the measurement of each of such
financial covenants in
63
accordance with the terms thereof and (4) assuming full utilization of the
credit facilities hereunder (other than any increase effected pursuant to
Section 4.4(b)) on the Closing Date, the Indebtedness of the Credit
Parties hereunder constitutes "Senior Debt" as defined in the Subordinated
Note Indentures (including an analysis supporting such statement); and
(g) Perfection and Priority of Liens. Receipt by the U.S. Agent of
the following:
(i) searches of Uniform Commercial Code and PPSA filings in the
jurisdiction of formation of each Borrower and each U.S.
Credit Party;
(ii) UCC and PPSA financing statements for each appropriate
jurisdiction as is necessary, in the U.S. Agent's sole
discretion, to perfect the Collateral Agent's security
interest in the Collateral;
(iii) all certificates evidencing any certificated Capital Stock
pledged to the Collateral Agent pursuant to the Pledge
Agreement, together with duly executed in blank, undated stock
powers attached thereto (unless, with respect to the pledged
Capital Stock of any Foreign Subsidiary, such stock powers are
deemed unnecessary by the U.S. Agent in its reasonable
discretion under the law of the jurisdiction of incorporation
of such Person); and
(iv) all intercompany notes issued by any Subsidiary of Airgas in
favor of a U.S. Credit Party, together with allonges or
assignments as may be necessary or appropriate to perfect the
Collateral Agent's security interest in the Collateral.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make any Loan or create any Bankers'
Acceptance, of any U.S. Issuing Lender to issue or extend U.S. Letters of Credit
and of the Canadian Issuing Lender to issue or extend Canadian Letters of Credit
(including the initial Loans, the initial U.S. Letters of Credit and the initial
Canadian Letters of Credit) are subject to satisfaction of the following
conditions in addition to satisfaction on the Closing Date of the conditions set
forth in Section 5.1:
(i) The relevant Borrower shall have properly delivered (A) in the
case of any Loan or Bankers' Acceptance, an appropriate Notice of
Borrowing or Notice of Extension/Conversion, (B) in the case of any U.S.
Letter of Credit, an appropriate request for issuance or extension in
accordance with the provisions of Section 2.3(b) or (C) in the case of any
Canadian Letter of Credit, an appropriate request for issuance or
extension in accordance with the provisions of Section 3.3(b);
(ii) The representations and warranties set forth in Article VI
shall be, subject to the limitations set forth therein, true and correct
in all material respects as of such date (except for those which expressly
relate to an earlier date) unless the failure to be so true and correct
would not be reasonably expected to have a Material Adverse Effect;
(iii) There shall not have been commenced against any Credit Party
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded;
64
(iv) No Default or Event of Default shall exist and be continuing
either prior to or after giving effect thereto;
(v) The incurrence by the applicable Borrower of the Indebtedness
evidenced by such Loan, Bankers' Acceptance or Letter of Credit shall be
permitted by the Subordinated Note Indentures and shall constitute "Senior
Debt" (as defined in the Subordinated Note Indentures); and
(vi) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof), the issuance or extension of
such U.S. Letter of Credit, the issuance or extension of such Canadian
Letter of Credit, or the creation of such Bankers' Acceptance as the case
may be, (A) in the case of U.S. Revolving Loans, Competitive U.S. Loans,
U.S. Swingline Loans and U.S. Letters of Credit, the sum of the aggregate
principal amount of outstanding U.S. Revolving Loans plus the aggregate
principal amount of outstanding Competitive U.S. Loans plus the aggregate
principal amount of outstanding U.S. Swingline Loans plus U.S. LOC
Obligations outstanding shall not exceed the U.S. Revolving Committed
Amount, (B) in the case of U.S. Letters of Credit, the U.S. LOC
Obligations outstanding shall not exceed the U.S. LOC Committed Amount,
(C) in the case of U.S. Swingline Loans, the aggregate principal amount of
outstanding U.S. Swingline Loans shall not exceed the U.S. Swingline
Committed Amount, (D) in the case of Canadian Revolving Loans, Canadian
Swingline Loans, Canadian Letters of Credit and Bankers' Acceptances, the
sum of the aggregate principal amount of outstanding Canadian Revolving
Loans plus the aggregate principal amount of outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus BA
Outstandings shall not exceed the Canadian Revolving Committed Amount, (E)
in the case of Canadian Swingline Loans, the aggregate principal amount of
outstanding Canadian Swingline Loans shall not exceed the Canadian
Swingline Committed Amount and (F) in the case of Canadian Letters of
Credit, the aggregate principal amount of Canadian LOC Obligations
outstanding shall not exceed the Canadian LOC Committed Amount.
The delivery of each Notice of Borrowing, each request for a U.S. Swingline
Loan, each request for a Canadian Swingline Loan, each request for the issuance
or extension of a U.S. Letter of Credit pursuant to Section 2.3(b) and each
request for the issuance or extension of a Canadian Letter of Credit pursuant to
Section 3.3(b) shall constitute a representation and warranty by the Borrowers
of the correctness of the matters specified in subsections (ii), (iii), (iv),
(v) and (vi) above.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents to the Agents and each Lender that:
6.1 FINANCIAL CONDITION.
(a) The audited consolidated balance sheet of the Consolidated Parties,
and the related consolidated statements of earnings and statements of cash
flows, as of March 31, 2004 have heretofore been furnished to each Lender. Such
financial statements (including the notes thereto) (i) have been audited by KPMG
Peat Marwick, (ii) have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby and (iii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Consolidated
Parties as of such date and for such periods. The unaudited interim balance
sheets of the Consolidated Parties as at the end of, and the related unaudited
interim statements of earnings and of cash flows for, each quarterly period
ended after March 31, 2004 and prior to the Closing Date have heretofore been
furnished to each Lender. Such interim financial statements for each such
quarterly period, (i) have been prepared in
65
accordance with GAAP consistently applied throughout the periods covered thereby
and (ii) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of
operations and cash flows of the Consolidated Parties as of such date and for
such periods. During the period from March 31, 2004 to and including the Closing
Date, there has been no sale, transfer or other disposition by the Consolidated
Parties of any material part of the business or property of the Consolidated
Parties, taken as a whole, and there has been no Acquisition, in each case,
which, is not reflected in the foregoing financial statements or in the notes
thereto or has not otherwise been disclosed in writing to the Agents on or prior
to the Closing Date.
(b) The projections of profit and loss statements, balance sheets and cash
flow reports for the Consolidated Parties on a consolidated basis for fiscal
year 2005, copies of which have heretofore been furnished to each Lender, are
based upon reasonable assumptions made known to the Lenders and upon information
not known to be incorrect or misleading in any material respect.
6.2 NO CHANGE.
Since March 31, 2004, there has been no development or event relating to
or affecting the Consolidated Parties which has had or would be reasonably
expected to have a Material Adverse Effect.
6.3 ORGANIZATION; EXISTENCE; COMPLIANCE WITH LAW.
Each Consolidated Party (a) is duly organized, validly existing and is in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate or other necessary power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign entity and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not be reasonably expected to have
a Material Adverse Effect, and (d) is in compliance with all material
Requirements of Law.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Credit Party has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents and to borrow hereunder, and has taken all necessary corporate action
to authorize the borrowings on the terms and conditions of this Credit Agreement
and to authorize the execution, delivery and performance of the Credit Documents
to which it is a party. No consent or authorization of, filing with, notice to
or other similar act by or in respect of, any Governmental Authority or any
other Person is required to be obtained or made by or on behalf of any Credit
Party in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents to
which such Credit Party is a party. This Credit Agreement has been, and each
other Credit Document to which any Credit Party is a party will be, duly
executed and delivered on behalf of each such Credit Party. This Credit
Agreement constitutes, and each other Credit Document when executed and
delivered will constitute, a legal, valid and binding obligation of each Credit
Party (with regard to each Credit Document to which it is a party) enforceable
against such Credit Party in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 NO LEGAL BAR.
66
The execution, delivery and performance of the Credit Documents by any
Credit Party, the borrowings hereunder and the use of the proceeds thereof (a)
will not violate any Requirement of Law or contractual obligation of such Credit
Party or any of its Subsidiaries in any respect that would reasonably be
expected to have a Material Adverse Effect, (b) will not result in, or require,
the creation or imposition of any Lien (other than those arising pursuant to the
Collateral Documents) on any of the Properties or revenues of such Credit Party
or any of its Subsidiaries pursuant to any such Requirement of Law or
contractual obligation, and (c) will not violate or conflict with any provision
of such Credit Party's articles of incorporation or by-laws.
6.6 NO MATERIAL LITIGATION.
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Credit
Parties, threatened by or against the Consolidated Parties or against any of
their respective properties or revenues which (a) relates to any of the Credit
Documents or any of the transactions contemplated hereby or thereby or (b) would
be reasonably expected to have a Material Adverse Effect.
6.7 NO DEFAULT.
No Consolidated Party is in default under or with respect to any of its
contractual obligations in excess of $10,000,000 in any respect which would be
reasonably expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
6.8 OWNERSHIP OF PROPERTY; LIENS.
Each Consolidated Party has good record and marketable title in fee simple
to, or a valid leasehold interest in, all its material real property, and good
title to, or a valid leasehold interest in, all its other material property, and
none of such property is subject to any Lien, except for Permitted Liens.
6.9 INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes, if any,
necessary for each of them to conduct its business as currently conducted (the
"Intellectual Property") except for those the failure to own or have such legal
right to use would not be reasonably expected to have a Material Adverse Effect.
No claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does Airgas know of any
such claim, and the use of such Intellectual Property by any Consolidated Party
does not infringe on the rights of any Person, except for such claims and
infringements that in the aggregate, would not be reasonably expected to have a
Material Adverse Effect.
6.10 NO BURDENSOME RESTRICTIONS.
Except as previously disclosed in writing to the Lenders on or prior to
the Closing Date, no Requirement of Law or contractual obligation of any
Consolidated Party would be reasonably expected to have a Material Adverse
Effect.
6.11 TAXES.
Each Consolidated Party has filed or caused to be filed all income tax
returns and all other material tax returns which, to the best knowledge of
Airgas, are required to be filed and has paid (a) all taxes shown
67
to be due and payable on said returns or (b) all taxes shown to be due and
payable on any assessments of which it has received notice made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any (i) taxes,
fees or other charges with respect to which the failure to pay, in the
aggregate, would not have a Material Adverse Effect or (ii) taxes, fees or other
charges the amount or validity of which are currently being contested and with
respect to which reserves in conformity with GAAP have been provided on the
books of such Person), and no tax Lien has been filed, and, to the best
knowledge of Airgas, no claim is being asserted, with respect to any such tax,
fee or other charge.
6.12 ERISA.
Except as would not result in a Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has occurred,
and, to the best knowledge of Airgas, no event or condition has occurred or
exists as a result of which any Termination Event could reasonably be expected
to occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Single
Employer Plan and, to the best knowledge of Airgas, each Multiemployer Plan has
been maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" under all
Single Employer Plans (determined within the meaning of Section 401(a)(2) of the
Code, utilizing the actuarial assumptions used to fund such Plans), whether or
not vested, did not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the current value of
the assets of all such Plans.
(c) No Consolidated Party or any ERISA Affiliate has incurred, or,
to the best knowledge of Airgas, could be reasonably expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. No Consolidated Party or any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if any Consolidated Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and Multiple
Employer Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. No Consolidated Party or any ERISA
Affiliate has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of Airgas, reasonably expected to be in reorganization, insolvent, or
terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any Consolidated Party or any
ERISA Affiliate has agreed or is required to indemnify any person against any
such liability.
6.13 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities other than securities issued by Airgas. If requested
by
68
any Lender or the U.S. Agent, the Credit Parties will furnish to the U.S. Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock within the
meaning of Regulation U or any "margin security" within the meaning of
Regulation T other than securities issued by Airgas. "Margin stock" within the
meanings of Regulation U does not constitute more than 25% of the value of the
consolidated assets of the Consolidated Parties. None of the transactions
contemplated by this Credit Agreement (including, without limitation, the direct
or indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or regulations issued pursuant thereto, or Regulation
T, U or X.
(b) No Consolidated Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended. In addition, no Consolidated Party is (i)
an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by such a
company, or (ii) a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(c) No director, executive officer or principal shareholder of any
Consolidated Party is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director", "executive officer"
and "principal shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O issued by the Board of
Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained all material licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its respective Property and to the conduct of its business.
(e) No Consolidated Party is in violation of any applicable statute,
regulation or ordinance of the United States or Canada, or of any state,
province, city, town, municipality, county or any other jurisdiction, or of any
agency thereof (including without limitation, environmental laws and
regulations), which violation could reasonably be expected to have a Material
Adverse Effect.
(f) Each Consolidated Party is current with all material reports and
documents, if any, required to be filed with any state or federal securities
commission or similar agency and is in full compliance in all material respects
with all applicable rules and regulations of such commissions.
6.14 SUBSIDIARIES.
Schedule 6.14 sets forth all the Subsidiaries of each Credit Party at the
Closing Date, the jurisdiction of their organization and the direct or indirect
ownership interest of such Credit Party therein.
6.15 PURPOSE OF LOANS AND LETTERS OF CREDIT.
The proceeds of the Loans hereunder shall be used solely by the Credit
Parties (i) to refinance existing Indebtedness of Airgas under the Existing
Credit Agreement, (ii) to finance Permitted Acquisitions and Permitted
Investments and (iii) for the working capital, capital expenditures and other
general corporate purposes of the Consolidated Parties. The Letters of Credit
shall be used only for or in connection with appeal bonds, reimbursement
obligations arising in connection with surety and reclamation bonds,
reinsurance, domestic or international trade transactions and obligations not
otherwise aforementioned
69
relating to acquisitions by the Consolidated Parties and other transactions
entered into by the applicable account party in the ordinary course of business.
6.16 ENVIRONMENTAL MATTERS.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
any Consolidated Party (the "Properties") and all operations at the Properties
are in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Properties or the
businesses operated by any Consolidated Party (the "Businesses"), and there are
no conditions relating to the Businesses or Properties that could give rise to
liability under any applicable Environmental Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Businesses, nor does any Consolidated Party have
knowledge or reason to believe that any such notice will be received or is being
threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or any other location, in each case by or
on behalf of any Consolidated Party in violation of, or in a manner that would
be reasonably likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Credit Parties, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any
Consolidated Party, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of any Consolidated
Party in connection with the Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
6.17 SOLVENCY.
The Credit Parties, on a consolidated basis, (a) are able to pay their
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (ii) do not intend to, and do not
believe that they will, incur debts or liabilities beyond their ability to pay
as such debts and liabilities mature in their ordinary course, (iii) are not
engaged in a business or a transaction, and are not about to engage in a
business or a transaction, for which their Property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which they are engaged or are to engage, (iv) own
Property, the fair value of which is greater than the total amount of their
liabilities, including, without limitation, contingent liabilities, and (v) own
assets, the present fair salable value of which is not less than the amount that
will be required to pay the probable liability on their debts as they become
absolute and matured. In computing the amount of contingent liabilities at any
time, it is intended
70
that such liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
6.18 PERFECTION OF SECURITY INTERESTS IN THE COLLATERAL.
During such time as the Collateral Documents are in effect, the Collateral
Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are
currently perfected security interests and Liens, prior to all other Liens.
6.19 PERFECTION INFORMATION.
Set forth on Schedule 6.19 is the chief executive office, jurisdiction of
organization, tax payer identification number and organizational identification
number of each U.S. Credit Party as of the Closing Date. Except as set forth on
Schedule 6.19, no U.S. Credit Party has during the five years preceding the
Closing Date (i) changed its legal name, (ii) changed its state of formation, or
(iii) been party to a merger, consolidation or other change in structure where
such Person was not the surviving Person.
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to each of the
Agents and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event
within 120 days after the close of each fiscal year of the Consolidated Parties,
a consolidated balance sheet and income statement of the Consolidated Parties,
as of the end of such fiscal year, together with related consolidated statements
of operations and retained earnings and of cash flows for such fiscal year,
setting forth in comparative form consolidated figures for the preceding fiscal
year, all such financial information described above to be in reasonable form
and detail and audited by independent certified public accountants of recognized
national standing reasonably acceptable to the U.S. Agent and whose opinion
shall be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants concur) and
shall not be limited as to the scope of the audit or qualified as to the status
of the Consolidated Parties as a going concern.
(b) Quarterly Financial Statements. As soon as available, and in any event
within 60 days after the close of each fiscal quarter of the Consolidated
Parties (other than the fourth fiscal quarter, in which case 120 days after the
end thereof) a consolidated balance sheet and income statement of the
Consolidated Parties, as of the end of such fiscal quarter, together with
related consolidated statements of operations and retained earnings and of cash
flows for such fiscal quarter in each case setting forth in comparative form
consolidated figures for the corresponding period of the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and reasonably acceptable to the U.S. Agent, and accompanied by a
certificate of the chief financial officer or other Executive Officer of Airgas
to the effect that, to the best of such Person's knowledge and belief, such
quarterly financial statements fairly present in
71
all material respects the financial condition of the Consolidated Parties and
have been prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments.
(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 Exhibit 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) and (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.
(d) Reports. Promptly upon transmission or receipt thereof, (i) copies of
any filings and registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as the Consolidated Parties
shall send to their shareholders or to a holder of any Indebtedness owed by the
Consolidated Parties in its capacity as such a holder and (ii) upon the request
of the U.S. Agent, all reports and written information to and from the United
States Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and safety
matters, or any successor agencies or authorities concerning environmental,
health or safety matters.
(e) Notices. Within five (5) Business Days after any Executive Officer of
any Credit Party obtains knowledge thereof, such Credit Party will give written
notice to the U.S. Agent of (a) the occurrence of an event or condition
consisting of a Default or Event of Default, specifying the nature and existence
thereof and what action the Credit Parties propose to take with respect thereto,
and (b) the occurrence of any of the following with respect to the Consolidated
Parties (i) the pendency or commencement of any litigation, arbitral or
governmental proceeding against such Person which if adversely determined is
likely to have a Material Adverse Effect, (ii) the institution of any
proceedings against such Person with respect to, or the receipt of notice by
such Person of potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation, including but
not limited to, Environmental Laws, the violation of which would likely have a
Material Adverse Effect, or (iii) any notice or determination concerning the
imposition of any withdrawal liability by a Multiemployer Plan against such
Person or any ERISA Affiliate, the determination that a Multiemployer Plan is,
or is expected to be, in reorganization within the meaning of Title IV of ERISA
or the termination of any Plan.
(f) ERISA. Within five (5) Business Days after any Executive Officer of
Airgas obtains knowledge thereof, Airgas will give written notice to the U.S.
Agent of the occurrence of any of the following events if such event has had or
reasonably could be expected to have a Material Adverse Effect: (i) of any event
or condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, a Termination Event; (ii) with respect
to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against Airgas or any of its
ERISA Affiliates, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Consolidated Party or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in ERISA and the Code
with respect thereto; or (iv) any change in the funding status of any Plan,
together with a description of any such event or condition or a copy of any such
notice and a statement by the chief financial officer or other Executive Officer
of Airgas briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is proposed
to be taken by Airgas or any ERISA Affiliate with respect thereto.
72
(g) Other Information. With reasonable promptness upon any such request,
such other information regarding the business, properties or financial condition
of the Consolidated Parties as the U.S. Agent or the Required Lenders may
reasonably request.
Documents required to be delivered pursuant to Section 7.1(a), (b) or (d)
may be delivered electronically and shall be deemed to have been delivered on
the date (i) on which Airgas posts such documents on the Securities and Exchange
Commission website or Airgas' website at the website address listed on Schedule
11.1; or (ii) on which such documents are posted on Airgas' behalf on an
Internet or intranet website, if any, to which each Lender and each Agent have
access (whether a commercial, third-party website or whether sponsored by the
U.S. Agent); provided that: (i) if such Person does not have access to such
websites, Airgas shall deliver paper copies of such documents to the U.S. Agent
or any Lender that requests Airgas to deliver such paper copies until a written
request to cease delivering paper copies is given by the U.S. Agent or such
Lender and (ii) Airgas shall notify the U.S. Agent (by telecopier or electronic
mail) of the posting of any such documents and, if requested by the U.S. Agent,
provide to the U.S. Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance Airgas shall be required to provide paper copies of the compliance
certificates required by Section 7.1(c) to the U.S. Agent. Except for such
compliance certificates, the U.S. Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by Airgas with any such
request for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted by Section 8.4(a), each Credit Party will,
and will cause each Consolidated Party to, do all things necessary to preserve
and keep in full force and effect its existence, rights, franchises and
authority.
7.3 BOOKS AND RECORDS.
Each Credit Party will, and will cause each of its Subsidiaries domiciled
in the United States to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate reserves). Each
Credit Party will, and cause each Consolidated Party domiciled in Canada to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of generally accepted accounting
principles applicable in Canada.
7.4 COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each Consolidated Party to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its property if
noncompliance with any such law, rule, regulation, order or restriction would
have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Except as otherwise provided pursuant to the terms of the definition of
"Permitted Liens" set forth in Section 1.1, each Credit Party will, and will
cause each Consolidated Party to, pay and discharge (i) all taxes, assessments
and governmental charges or levies imposed upon it, or upon its income or
profits, or upon any of its properties, before they shall become delinquent,
(ii) all lawful claims (including claims for
73
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (iii) all of its other Indebtedness as it shall
become due.
7.6 INSURANCE.
Each Credit Party will, and will cause each Consolidated Party to, at all
times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practices.
7.7 MAINTENANCE OF PROPERTY.
Each Credit Party will, and will cause each Consolidated Party to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
7.8 USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
7.9 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit Party
will, and will cause each Consolidated Party to, permit representatives
appointed by the U.S. Agent, including, without limitation, independent
accountants, agents, attorneys, and appraisers to visit and inspect its
property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains. The U.S. Agent shall make available to the Lenders upon
request any information it obtains from any such visitations or inspections.
7.10 FINANCIAL COVENANTS.
(a) Consolidated Leverage Ratio. The Credit Parties shall cause the
Consolidated Leverage Ratio as of the last day of each fiscal quarter of Airgas
to be no greater than 4.0 to 1.0.
(b) Consolidated Interest Coverage Ratio. The Credit Parties shall cause
the Consolidated Interest Coverage Ratio as of the last day of each fiscal
quarter of Airgas to be at least 3.5 to 1.0.
7.11 MAINTENANCE OF DESIGNATION RIGHTS - NATIONAL WELDERS BOARD OF
DIRECTORS.
Airgas shall maintain at all times the right to designate at least 50% of
the members of the Board of Directors of National Welders.
7.12 ADDITIONAL GUARANTORS.
(a) At all times other than during a period following a Collateral and
Guarantor Release Date that has not been followed by a Collateralization Date,
as soon as practicable and in any event within 30
74
days after (i) any Person becomes a direct or indirect Restricted Subsidiary of
Airgas or (ii) any direct or indirect Subsidiary of Airgas guarantees Airgas'
obligations under any Junior Financing Documentation, the Credit Parties shall
(a) provide the U.S. Agent with written notice thereof, (b) cause such Person to
execute a Joinder Agreement, (c) deliver such other documentation as the U.S.
Agent may reasonably request in connection with the foregoing, including,
without limitation, favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of such Joinder Agreement) and other items of the types required
to be delivered pursuant to Section 5.1(b), all in form, content and scope
reasonably satisfactory to the U.S. Agent and (d) otherwise comply with Section
7.13 in respect of such Person.
(b) Upon the occurrence of a Collateralization Date, Airgas shall (i)
cause each of its Restricted Subsidiaries to execute a Joinder Agreement, (ii)
deliver such other documentation as the U.S. Agent may reasonably request in
connection with the foregoing, including, without limitation, favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of such Joinder Agreement) and other
items of the types delivered pursuant to Section 5.1(b) on the Closing Date, all
in form, content and scope reasonably satisfactory to the U.S. Agent and (iii)
otherwise comply with Section 7.13 in respect of such Restricted Subsidiaries.
Notwithstanding anything in this Section 7.12 to the contrary, the Credit
Parties shall not be required to provide legal opinions of foreign counsel with
respect to Immaterial Foreign Subsidiaries in connection with the execution of
any Joinder Agreement.
7.13 PLEDGED ASSETS.
(a) Generally. At all times other than during a period following a
Collateral and Guarantor Release Date that has not been followed by a
Collateralization Date, the Credit Parties will cause (i) 100% of the issued and
outstanding Capital Stock of the direct Domestic Subsidiaries of any U.S. Credit
Party to be subject at all times to a first priority, perfected Lien in favor of
the Collateral Agent securing the Credit Party Obligations pursuant to the terms
and conditions of the Pledge Agreement or such other security documents as the
U.S. Agent shall reasonably request, (ii) 65% of the issued and outstanding
Capital Stock entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any direct
Foreign Subsidiary of any U.S. Credit Party (or such greater percentage that,
due to a change in an applicable Requirement of Law after the date hereof, (1)
could not reasonably be expected to cause the undistributed earnings of as
determined for United States federal income tax purposes to be treated as a
deemed dividend to such Subsidiary's United States parent and (2) could not
reasonably be expected to cause any material adverse tax consequences) to be
subject at all times to a first priority, perfected Lien in favor of the
Collateral Agent securing the Credit Party Obligations pursuant to the terms and
conditions of the Pledge Agreement or such other security documents as the U.S.
Agent shall reasonably request, and (iii) all intercompany notes issued by any
Subsidiary in favor of a U.S. Credit Party to be subject at all times to first
priority, perfected Liens in favor of the Collateral Agent to secure the Credit
Party Obligations pursuant to the terms and conditions of the Collateral
Documents. In connection with the foregoing, the Credit Parties shall cause to
be delivered to the Collateral Agent (A) all certificates evidencing any
certificated Capital Stock pledged to the Collateral Agent pursuant to the
Collateral Documents, together with duly executed in blank, undated stock powers
attached thereto (unless, with respect to the pledged Capital Stock of any
Foreign Subsidiary, such stock powers are deemed unnecessary by the U.S. Agent
in its reasonable discretion under the law of the jurisdiction of incorporation
of such Person), (B) all intercompany notes issued by any Subsidiary in favor of
a U.S. Credit Party, together with allonges or assignments as may be necessary
or appropriate to perfect the Collateral Agent's security interest in the
Collateral, (C) searches under the Uniform Commercial Code (or equivalent local
legislation) to the extent a filing of a financing statement
75
pursuant to the Uniform Commercial Code (or equivalent local legislation) would
be necessary to perfect a security interest in such Capital Stock, appropriate
financing statements in Form UCC-1 (or the local equivalent) necessary to
perfect the Collateral Agent's security interest in such Capital Stock, and (D)
certified resolutions and other organizational and authorizing documents of, and
favorable opinions (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above and the perfection of the Collateral Agent's Liens thereunder) of counsel
to, each Person required to execute or otherwise become a party to the
Collateral Documents. If a U.S. Credit Party shall create or acquire any
Subsidiary the Capital Stock of which is required to be pledged to the
Collateral Agent as Collateral hereunder or acquire any intercompany notes
issued by a Subsidiary in favor of a U.S. Credit Party, the Credit Parties shall
promptly notify the U.S. Agent of the same. Each Credit Party shall, and shall
cause each of its Subsidiaries to, take such action (including but not limited
to the actions set forth in this Section 7.13(a)) at its own expense as
requested by the U.S. Agent to ensure that the Collateral Agent has a first
priority perfected Lien on such Capital Stock or intercompany notes to secure
the Credit Party Obligations as required by this Section 7.13. Notwithstanding
anything in this Section 7.13(a) to the contrary, the Credit Parties shall not
be required to (i) execute and deliver a pledge or security agreement that is
governed by the law of the jurisdiction of organization of any Immaterial
Foreign Subsidiary or (ii) provide legal opinions of foreign counsel with
respect to any Immaterial Foreign Subsidiary in connection with the pledge of
the Capital Stock of such Immaterial Foreign Subsidiary pursuant to the
Collateral Documents.
(b) Collateral and Guarantor Release Date. Immediately upon the occurrence
of a Collateral and Guarantor Release Date, the Liens in favor of the Collateral
Agent in the Collateral shall automatically be released. The Collateral Agent
shall (to the extent applicable) deliver to the Credit Parties, upon the Credit
Parties' request and at the Credit Parties' expense, such documentation as is
reasonably necessary to evidence the release of the Collateral Agent's Lien, if
any, in such assets or Capital Stock, including, without limitation,
terminations of financing statements under the Uniform Commercial Code (or
equivalent local legislation), if any, and the return of stock certificates, if
any.
7.14 RECEIVABLES FINANCING FURTHER ASSURANCES.
Following the consummation of any sale of Securitization Assets by the
Receivables Subsidiary to the Receivables Financier, each of the applicable
Credit Parties in its capacity as an owner of the Capital Stock of the
Receivables Subsidiary will take such action to cause, to the extent it is
legally able to do so in its capacity as an owner of Capital Stock, the
Receivables Subsidiary to dividend, distribute, lend (on a basis subordinated to
the Credit Party Obligations) or otherwise transfer to the Credit Parties any
Property (including cash) of the Receivables Subsidiary not required to be
pledged to the Receivables Financier or required to be held by the Receivables
Subsidiary by the terms of the Permitted Receivables Financing.
ARTICLE VIII
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
8.1 INDEBTEDNESS.
(a) The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Indebtedness except:
76
(i) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(ii) Indebtedness 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);
(iii) the Permitted Receivables Financing; and
(iv) other Indebtedness so long as after giving effect to the
incurrence thereof on a Pro Forma Basis, the Credit Parties would be in
compliance with the financial covenants set forth in Section 7.10.
(b) In addition to the limitations on Indebtedness set forth in Section
8.1(a), at all times following a Collateral and Guarantor Release Date that has
not been followed by a Collateralization Date, the Credit Parties will not
permit the aggregate principal amount of all Indebtedness of all Subsidiaries of
Airgas to exceed an amount equal to five percent (5%) of the consolidated total
assets of the Consolidated Parties, as determined in accordance with GAAP;
provided, however, during the 180 day period immediately following the first
date as of which National Welders becomes a Restricted Subsidiary, if ever,
Indebtedness of National Welders shall be excluded from the forgoing
calculation.
8.2 LIENS.
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 NATURE OF BUSINESS.
The Credit Parties will not permit any Consolidated Party to substantively
alter the character or conduct of the business conducted by any such Person as
of the Closing Date, except for reasonable extensions thereof and businesses
ancillary thereto.
8.4 CONSOLIDATION, MERGER, AMALGAMATION OR SALE.
(a) Except in connection with a disposition of assets permitted by the
terms of Section 8.4(b), the Credit Parties will not permit any Consolidated
Party to dissolve, liquidate or wind up their affairs, or merge, consolidate or
amalgamate; provided that, notwithstanding the foregoing provisions of this
Section 8.4(a) but subject to the terms of Sections 7.12 and 7.13, (i) Airgas
may merge, consolidate or amalgamate with any of its Subsidiaries so long as (A)
Airgas is the surviving corporation and (B) no Default or Event of Default shall
have occurred and be continuing at the time of such merger, consolidation or
amalgamation or shall result upon giving effect thereto, (ii) any Canadian
Borrower may merge, consolidate or amalgamate with any of its wholly-owned
Subsidiaries so long as (A) such Canadian Borrower is the surviving corporation
and (B) no Default or Event of Default shall have occurred and be continuing at
the time of such merger, consolidation or amalgamation or shall result upon
giving effect thereto, (iii) any Credit Party (other than a Borrower) may merge,
consolidate or amalgamate with any other Credit Party (other than a Borrower),
so long as (A) to the extent a U.S. Subsidiary Guarantor is a party to such
transaction, a U.S. Subsidiary Guarantor is the surviving Person and (B) no
Default or Event of Default shall have occurred and be continuing at the time of
such merger, consolidation or amalgamation or shall result upon giving effect
thereto, (iv) any Subsidiary of Airgas which is not a Credit Party may merge,
consolidate or amalgamate with any other Subsidiary of Airgas, so long as (A) to
the extent a Credit Party is a party to such transaction, such Credit Party is
the surviving Person and (B) no Default or Event of Default shall have occurred
and be continuing at the time of such merger, consolidation or amalgamation or
shall
77
result upon giving effect thereto, (v) Airgas or any of its Subsidiaries (other
than Canadian Subsidiaries) may merge or consolidate with any other Person that
is not a Consolidated Party in connection with a Permitted Acquisition so long
as Airgas or such Subsidiary is the surviving Person, (vi) a Canadian Borrower
may amalgamate with any other Person that is not a Consolidated Party in
connection with a Permitted Acquisition so long as the corporation resulting
from such amalgamation is in compliance with all covenants contained in this
Credit Agreement and (vii) any Subsidiary of any Credit Party of which 85% or
more of the Capital Stock or other equity interests is owned by such Credit
Party (directly or indirectly through Subsidiaries) may dissolve, liquidate or
wind up its affairs at any time; provided, however, a Consolidated Party that is
not identified on Schedule 1.1A may not merge, consolidate or amalgamate with
any Person identified on Schedule 1.1A in connection with or in contemplation of
an Asset Disposition of the Capital Stock of or all or substantially all of the
assets of the surviving entity permitted by clause (xii) of the definition of
"Excluded Asset Disposition"; or
(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 $5,000,000 or more shall be on an
arms-length basis with a wholly independent third party, and (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 Section
7.10 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. 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.
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;
78
(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 Foreign 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);
(i) Acquisitions 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) 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, (C) Airgas shall have
delivered to the U.S. Agent, if the aggregate purchase price of such
Acquisition exceeds $25,000,000, 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 Section 7.10, and (D) the representations and warranties made by
the Credit Parties in each 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.
(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.
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) any Consolidated Party may directly or indirectly declare or make
dividends payable solely in the same class of Capital Stock of such Person;
(ii) each Subsidiary may directly or indirectly declare, order, make or
set apart any sum for or pay Restricted Payments to the U.S. Credit Parties and
any other Person that owns Capital Stock in such Subsidiary, ratably according
to their respective holdings of the type of Capital Stock in respect of which
such Restricted Payment is being made; and
79
(iii) any Consolidated Party may directly or indirectly declare, order,
make or set apart any sum for or pay 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)
after giving effect to the declaration, order, making or setting apart any sum
for such Restricted Payment on a Pro Forma Basis, the Credit Parties would be in
compliance with the financial covenants set forth in Section 7.10.
8.7 PAYMENTS OF INDEBTEDNESS, ETC.
The Credit Parties will not permit any Consolidated Party to (a) if any
Default or Event of Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof, (i) after the issuance thereof, amend
or modify (or permit the amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or change any terms in
a manner adverse to the issuer of such Indebtedness, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof or (ii) except for the exchange of
the Subordinated Notes for notes with substantially identical terms registered
pursuant to the registration rights agreement set forth in the Subordinated Note
Indentures, make (or give any notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange of any other Indebtedness, (b) after the issuance
thereof, amend or modify any of the terms of the Indebtedness arising under any
Junior Financing Documentation if such amendment or modification would add or
change any terms in a manner adverse to the Consolidated Parties, or shorten the
final maturity or average life to maturity thereof or require any payment to be
made sooner than originally scheduled or increase the interest rate applicable
thereto or change any subordination provision thereof, (c) make payments
(including payment of accrued interest and premium, if any, payable in
connection with a redemption of the Subordinated Notes permitted under this
Section 8.7) in respect of any Subordinated Debt in violation of the
subordination provisions of any Junior Financing Documentation or (d) make (or
give any notice with respect thereto) any voluntary or optional payment or
prepayment, redemption, acquisition for value or defeasance of (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any Subordinated Debt (i) except for the exchange of
the Subordinated Notes for notes with substantially identical terms registered
pursuant to the registration rights agreement set forth in the Subordinated Note
Indenture, (ii) unless (A) no Default or Event of Default has occurred and is
continuing or would be directly or indirectly caused as a result thereof and (B)
after giving effect thereto on a Pro Forma Basis, the Credit Parties would be in
compliance with the financial covenants set forth in Section 7.10 or (iii)
except for refinancings thereof with other Subordinated Debt so long as (A) such
new Subordinated Debt is at least as subordinated in right of payment and
otherwise to the Credit Party Obligations as the Subordinated Debt being
refinanced (as determined by the U.S. Agent), (B) the principal amount of the
new Subordinated Debt is not greater than the principal amount of Subordinated
Debt being refinanced, (C) the final maturity and average life to maturity of
the new Subordinated Debt is not less than the Subordinated Debt being
refinanced and (D) the material terms of the new Subordinated Debt are at least
as favorable to the Consolidated Parties and the Lenders as the Subordinated
Debt being refinanced.
8.8 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Credit Parties will not permit any Consolidated Party to (i) amend,
modify or change its articles of incorporation (or corporate charter or other
similar organizational document) or bylaws (or other similar document) where
such change would be materially adverse to the Lenders or (ii) change its fiscal
year.
80
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,
except (in respect of any of the matters referred to in clauses (a)-(d) 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 Indentures and the Subordinated Notes, in each case as in effect as of the
Closing Date, (iii) applicable law, (iv) the Medium Term Indenture, as in effect
as of the Closing Date, (v) 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, (vi)
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 (vii) customary restrictions and conditions contained in leases and
other contracts restricting the assignment thereof.
8.10 ISSUANCE AND SALE OF SUBSIDIARY STOCK.
Airgas will not, nor will it permit any Consolidated Party to, except to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law and except as otherwise permitted under the terms
of Section 8.4(b), sell, transfer or otherwise dispose of, any shares of Capital
Stock of any of its Subsidiaries or permit any of its Subsidiaries to issue,
sell or otherwise dispose of, any shares of capital stock of any of its
Subsidiaries.
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 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, (b) 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, (c) the Medium Term Indenture, as in effect as of the Closing Date,
and (d) customary restrictions and conditions contained in leases and other
contracts restricting the assignment thereof.
8.12 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not permit any Consolidated Party to enter into or
permit to exist any transaction or series of transactions with any officer,
director, shareholder, Subsidiary or Affiliate of such Person other than (a)
intercompany transactions expressly permitted by Section 8.1, Section 8.4,
Section 8.5 or Section 8.6, (b) normal compensation and reimbursement of
expenses of officers and directors and (c) except as otherwise specifically
limited in this Credit Agreement, other transactions on terms and conditions
substantially as favorable to such Consolidated Party as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
81
ARTICLE IX
EVENTS OF DEFAULT
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"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such defaults shall continue for five (5) or
more days, in the payment when due of any interest on the Loans or
on any reimbursement obligations arising from drawings under Letters
of Credit, or of any fees or other amounts owing hereunder, under
any of the other Credit Documents or in connection herewith or
therewith; or
(b) Representations. Any representation, warranty or statement made
or deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was deemed to have been made;
or
(c) Covenants.
(i) default in the due performance or observance by it of any
term, covenant or agreement contained in Sections 7.2, 7.8 or 7.10
or Article VIII of this Credit Agreement (other than those referred
to in subsections (a) or (b) of this Section 9.1) contained in this
Credit Agreement; or
(ii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1) contained in
this Credit Agreement or any other Credit Document and such default
shall continue unremedied for a period of at least 30 days after the
earlier of a Executive Officer of such Credit Party becoming aware
of such default or notice thereof by the U.S. Agent; or
(d) Other Credit Documents. Except as a result of or in connection
with a dissolution, merger or disposition of a Subsidiary not prohibited
by Section 8.4 or as otherwise permitted by any Credit Document, any
Credit Document shall fail to be in full force and effect or to give the
Agents, the Collateral Agent and/or the Lenders the Liens, rights, powers
and privileges purported to be created thereby, or any Credit Party shall
so state in writing; or
(e) Guaranties. Except as the result of or in connection with a
dissolution, merger, amalgamation or disposition of a Subsidiary not
prohibited by Section 8.4, in connection with a Collateral and Guarantor
Release Date or as otherwise permitted by any Credit Document, the
82
guaranty given by any Guarantor hereunder or any provision thereof shall
cease to be in full force and effect, or any Guarantor hereunder or any
Person acting by or on behalf of such Guarantor shall deny or disaffirm
such Guarantor's obligations under such guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty
hereunder; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to any Consolidated Party; or
(g) Defaults under Other Indebtedness. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $25,000,000 in the aggregate for the Consolidated
Parties taken as a whole any of the following shall occur (unless, with
respect to any Indebtedness in favor of the seller of a company acquired
by any Consolidated Party, such occurrence is in connection with a bona
fide dispute as to the right of the applicable Person to offset such
Indebtedness against indemnification obligations of the holder of such
Indebtedness to such Person and such Person shall have made adequate
provision (as determined by the Required Lenders in their reasonable
discretion) for such Indebtedness on its books of account): (A) (1) any
Consolidated Party shall default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to whether any notice or
lapse of time is required), any such Indebtedness to become due prior to
its stated maturity; or (B) any such Indebtedness shall be declared due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
against any Consolidated Party involving a liability of $25,000,000 or
more in the aggregate (to the extent not paid or fully covered by
insurance provided by a carrier who has acknowledged coverage) and any
such judgments or decrees shall not have been vacated, discharged or
stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event
or condition reasonably could be expected to involve possible taxes,
penalties, and other liabilities in an aggregate amount in excess of
$25,000,000: (1) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any lien shall arise
on the assets of any Consolidated Party or any ERISA Affiliate in favor of
the PBGC or a Plan; (2) a Termination Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the U.S.
Agent, likely to result in the termination of such Plan for purposes of
Title IV of ERISA; (3) a Termination Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the reasonable
opinion of the U.S. Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) any Consolidated Party or
any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency or (within the meaning of Section 4245 of ERISA)
such Plan; or (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section
83
4975 of the Code) or breach of fiduciary responsibility shall occur which
may subject any Consolidated Party or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability; or
(j) Ownership.
(i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership, directly or indirectly, of, or
shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation, will result
in its or their acquisition of, control over, Voting Stock of any
Borrower (or other securities convertible into such Voting Stock)
representing 50% or more of the combined voting power of all Voting
Stock of such Borrower; provided, however, such occurrence shall not
constitute an Event of Default hereunder until a period of 30 days
has elapsed from the date of the acquisition by such Person and/or
its Affiliates of Voting Stock of such Borrower which gives such
Person and/or its Affiliates an aggregate ownership of more than 50%
of the Voting Stock of such Borrower; provided further, if such
Person and/or its Affiliates have filed a tender offer statement
with the Securities and Exchange Commission in connection with such
acquisition, the 30 day period referenced above in the foregoing
proviso shall commence on the date of the filing with the Securities
and Exchange Commission of such tender offer statement.
(ii) A "Change of Control" (or any comparable term) under, and
as defined in, any Junior Financing Documentation shall have
occurred.
(iii) 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 3.5.
(k) Subordinated Debt Documentation. (i) There shall occur and be
continuing any "Event of Default" (or any comparable term) under, and as
defined in, any Junior Financing Documentation, (ii) any of the Credit
Party Obligations for any reason shall cease to be "Designated Senior
Debt" (or any comparable term) under, and as defined in, any Junior
Financing Documentation, (iii) any Indebtedness other the Credit Party
Obligations shall constitute "Designated Senior Debt" (or any comparable
term) under, and as defined in, any Junior Financing Documentation or (iv)
the subordination provisions of any Junior Financing Documentation shall,
in whole or in part, terminate, cease to be effective or cease to be
legally valid, binding and enforceable against any holder of the
applicable Subordinated Debt.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by, or cured to the
satisfaction of, the requisite Lenders (pursuant to the voting procedures in
Section 11.6), the U.S. Agent shall, upon the request and direction of the
Required Lenders, by written notice to the Credit Parties take any of the
following actions:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
84
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by any Credit Party to an
Agent, the Collateral Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Credit Parties.
(iii) Cash Collateral. Direct the Credit Parties to pay (and each
Credit Party agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the U.S. Agent (A) additional cash, to be held by the
U.S. Agent, for the benefit of the U.S. Revolving Lenders, in a cash
collateral account as additional security for the U.S. LOC Obligations in
respect of subsequent drawings under all then outstanding U.S. Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all U.S. Letters of Credits then outstanding and (B)
additional cash, to be held by the Canadian Agent, for the benefit of the
Canadian Lenders, in a cash collateral account as additional security for
the Canadian LOC Obligations in respect of subsequent drawings under all
then outstanding Canadian Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Canadian Letters of
Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to an Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without the
giving of any notice or other action by the U.S. Agent or the Lenders.
ARTICLE X
AGENCY PROVISIONS
10.1 APPOINTMENT AND AUTHORITY.
Each of the Lenders hereby irrevocably appoints Bank of America to act on
its behalf as the U.S. Agent hereunder and under the other Credit Documents and
authorizes the U.S. Agent to take such actions on its behalf and to exercise
such powers as are delegated to the U.S. Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. Each
of the Lenders hereby irrevocably appoints BNS to act on its behalf as the
Canadian Agent hereunder and under the other Credit Documents and authorizes the
Canadian Agent to take such actions on its behalf and to exercise such powers as
are delegated to the Canadian Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. Each of the
Lenders hereby irrevocably appoints Bank of America to act on its behalf as the
Collateral Agent hereunder and under the other Credit Documents and authorizes
the Collateral Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Collateral Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The
Lenders and the Agents agree that the Collateral Agent shall be entitled to all
of the benefits and privileges of this Article X to the same
85
extent as the U.S. Agent. The provisions of this Article X are solely for the
benefit of the Agents, the Collateral Agent and the Lenders, and neither Airgas
nor any other Credit Party shall have rights as a third party beneficiary of any
of such provisions.
10.2 RIGHTS AS A LENDER.
Any Person serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated or unless the context otherwise requires, include
any Person serving as an Agent hereunder in its individual capacity. Any such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with any Credit Party or any Subsidiary or other Affiliate
thereof as if such Person were not an Agent hereunder and without any duty to
account therefor to the Lenders.
10.3 EXCULPATORY PROVISIONS.
The Agents shall not have any duties or obligations except those expressly
set forth herein and in the other Credit Documents. Without limiting the
generality of the foregoing, neither Agent:
(a) shall be subject to any fiduciary or other implied duties,
regardless of whether a Default or Event of Default has occurred and is
continuing;
(b) shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that such Agent is
required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Credit Documents), provided that
neither Agent shall be required to take any action that, in its opinion or
the opinion of its counsel, may expose such Agent to liability or that is
contrary to any Credit Document or applicable law; and
(c) shall, except as expressly set forth herein and in the other
Credit Documents, have any duty to disclose, and shall be liable for the
failure to disclose, any information relating to any Credit Party or any
of its Affiliates that is communicated to or obtained by the Person
serving as an Agent or any of its Affiliates in any capacity.
Neither Agent shall be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as such Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 11.6 and 9.2) or (ii) in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default or
Event of Default unless and until notice describing such Default or Event of
Default is given to such Agent by Airgas or a Lender.
Neither Agent shall be responsible for nor have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Credit Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this Credit
Agreement, any other Credit Document or any other agreement, instrument or
document or (v) the
86
satisfaction of any condition set forth in Article V or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
10.4 RELIANCE BY THE AGENTS.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. Each Agent also may rely upon any statement made to it orally or
by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance
with any condition hereunder to the making of a Loan, the issuance of a Letter
of Credit or the making of any other extension of credit hereunder, that by its
terms must be fulfilled to the satisfaction of a Lender, the applicable Agent
may presume that such condition is satisfactory to such Lender unless such Agent
shall have received notice to the contrary from such Lender prior to the making
of such Loan, the issuance of such Letter of Credit or the making of such other
extension of credit. Each Agent may consult with legal counsel (who may be
counsel for the Credit Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
10.5 DELEGATION OF DUTIES.
Each Agent may perform any and all of its duties and exercise its rights
and powers hereunder or under any other Credit Document by or through any one or
more sub-agents appointed by such Agent. Each Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article X shall apply to any such sub-agent and to the Related Parties of the
applicable Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as an Agent.
10.6 RESIGNATION OF AGENTS.
Either Agent may at any time give notice of its resignation to the Lenders
and Airgas. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with Airgas, to appoint a successor,
which, in the case of a successor U.S. Agent, shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United
States or, in the case of a successor Canadian Agent, shall be a bank with an
office in Canada, or an Affiliate of any such bank with an office in Canada. If
no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may on behalf of the Lenders,
appoint a successor Agent meeting the qualifications set forth above; provided
that if such Agent shall notify Airgas and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Credit
Documents (except that in the case of any collateral security held by such Agent
on behalf of the Lenders under any of the Credit Documents, the retiring Agent
shall continue to hold such collateral security until such time as a successor
Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through such Agent shall instead be made by or to
each Lender directly, until such time as the Required Lenders appoint a
successor Agent as provided for above in this Section. Upon the acceptance of a
successor's appointment as an Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be
87
discharged from all of its duties and obligations hereunder or under the other
Credit Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by Airgas to a successor Agent shall be the same as
those payable to its predecessor unless otherwise agreed between Airgas and such
successor. After a retiring Agent's resignation hereunder and under the other
Credit Documents, the provisions of this Article X and Section 11.5 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Agent was acting as an Agent.
Any resignation by Bank of America as U.S. Agent pursuant to this Section
shall also constitute its resignation as U.S. Swingline Lender (and, if
applicable, as a U.S. Issuing Lender). Upon the acceptance of a successor's
appointment as U.S. Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of such
retiring U.S. Swingline Lender (and, if applicable, retiring U.S. Issuing
Lender), (b) such retiring U.S. Swingline Lender (and, if applicable, retiring
U.S. Issuing Lender) shall be discharged from all of their respective duties and
obligations hereunder or under the other Credit Documents, and (c) if Bank of
America is also a retiring U.S. Issuing Lender, the successor U.S. Issuing
Lender shall issue letters of credit in substitution for the U.S. Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring U.S. Issuing Lender to effectively
assume the obligations of the retiring U.S. Issuing Lender with respect to such
U.S. Letters of Credit.
Any resignation by BNS as Canadian Agent pursuant to this Section shall
also constitute its resignation as Canadian Issuing Lender and Canadian
Swingline Lender. Upon the acceptance of a successor's appointment as Canadian
Agent hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of such retiring Canadian Issuing
Lender and Canadian Swingline Lender, (b) the retiring Canadian Issuing Lender
and Canadian Swingline Lender shall be discharged from all of their respective
duties and obligations hereunder or under the other Credit Documents, and (c)
the successor Canadian Issuing Lender shall issue letters of credit in
substitution for the Canadian Letters of Credit, if any, outstanding at the time
of such succession or make other arrangement satisfactory to the retiring
Canadian Issuing Lender to effectively assume the obligations of the retiring
Canadian Issuing Lender with respect to such Canadian Letters of Credit.
10.7 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Credit
Agreement, any other Credit Document or any related agreement or any document
furnished hereunder or thereunder.
10.8 NO OTHER DUTIES; ETC.
Anything herein to the contrary notwithstanding, none of the bookrunners,
arrangers, syndication agents, documentation agents or co-agents shall have any
powers, duties or responsibilities under this Credit Agreement or any of the
other Credit Documents, except in its capacity, as applicable, as an Agent or a
Lender hereunder.
88
10.9 U.S. AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Credit Party, the U.S. Agent (irrespective
of whether the principal of any Loan, LOC Obligation or other extension of
credit hereunder shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the U.S. Agent shall have
made any demand on any Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, LOC Obligations and
all other Obligations (other than obligations under Hedging Agreements to
which the U.S. Agent is not a party) that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Agents (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Agents and their respective agents and counsel and all
other amounts due the Lenders and the Agents under Sections 4.5 and 11.5)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the U.S. Agent and, in the event that the
U.S. Agent shall consent to the making of such payments directly to the Lenders,
to pay to the U.S. Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the U.S. Agent and its agents and
counsel, and any other amounts due the U.S. Agent under Sections 4.5 and 11.5.
Nothing contained herein shall be deemed to authorize the U.S. Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Credit
Party Obligations or the rights of any Lender or to authorize the U.S. Agent to
vote in respect of the claim of any Lender in any such proceeding.
10.10 COLLATERAL AND GUARANTY MATTERS.
The Lenders irrevocably authorize the U.S. Agent and/or the Collateral
Agent, as applicable, at its option and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Collateral Agent under any Credit Document (i) upon termination of the
Commitments and payment in full of all Credit Party Obligations (other
than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Asset Disposition
permitted hereunder or under any other Credit Document or any Involuntary
Disposition, (iii) upon the occurrence of a Collateral and Guarantor
Release Date or (iv) as approved in accordance with Section 11.6; and
(b) to release any Guarantor from its obligations under Article XII
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or on the occurrence of a Collateral and Guarantor
Release Date.
89
Upon request by the U.S. Agent at any time, the Required Lenders will confirm in
writing the U.S. Agent's and/or the Collateral Agent's, as applicable, authority
to release its interest in particular types or items of Property, or to release
any Guarantor from its obligations under Article XII, pursuant to this Section
10.10.
ARTICLE XI
MISCELLANEOUS.
11.1 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to Airgas or any other Credit Party, the U.S. Agent, the
Canadian Agent, the Collateral Agent, a U.S. Issuing Lender, the Canadian
Issuing Lender, the U.S. Swingline Lender or the Canadian Swingline
Lender, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 11.1; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the U.S. Agent, provided that the foregoing shall not apply to
notices to any Lender pursuant to Article II, Article III or Article IV if such
Lender has notified the U.S. Agent that it is incapable of receiving notices
under such Section by electronic communication. Each Agent or Airgas may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
Unless the U.S. Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
90
(c) Change of Address, Etc. Each of Airgas, the Agents, the Collateral
Agent, a U.S. Issuing Lender, the Canadian Issuing Lender, the U.S. Swingline
Lender and the Canadian Swingline Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
Airgas and the U.S. Agent and, in the case of any U.S. Revolving Lender, the
U.S. Issuing Lenders and the U.S. Swingline Lender and, in the case of any
Canadian Lender, the Canadian Issuing Lender and the Canadian Swingline Lender.
(d) Reliance. The Agents, the Collateral Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Notices of
Borrowing) purportedly given by or on behalf of any Credit Party even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Credit Parties shall indemnify each Agent, the Collateral Agent,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of a Credit Party. All telephonic
notices to and other telephonic communications with the an Agent may be recorded
by such Agent, and each of the parties hereto hereby consents to such recording.
11.2 RIGHT OF SET-OFF.
If an Event of Default shall have occurred and be continuing, each Lender
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender or any such Affiliate to or
for the credit or the account of Airgas or any other Credit Party against any
and all of the obligations of Airgas or such Credit Party now or hereafter
existing under this Credit Agreement or any other Credit Document to such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Credit Agreement or any other Credit Document and although such
obligations of Airgas or such Credit Party may be contingent or unmatured or are
owed to a branch or office of such Lender different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each
Lender and its Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or its Affiliates
may have. Each Lender agrees to notify Airgas and the U.S. Agent promptly after
any such setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
11.3 BENEFIT OF AGREEMENT.
(a) Successors and Assigns Generally. The provisions of this Credit
Agreement and the other Credit Documents shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder or thereunder without the
prior written consent of each Agent and each affected Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of subsection (b)
of this Section, (ii) by way of participation in accordance with the provisions
of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Credit Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby,
91
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Agents and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Credit Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement and the other Credit Documents (including all or a portion
of its Commitment and the Loans (including for purposes of this subsection (b),
participations in LOC Obligations and in U.S. Swingline Loans or Canadian
Swingline Loans) at the time owing to it); provided that (i) except in the case
of an assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
outstanding Loans thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the U.S. Agent and, if
applicable, the Canadian Agent, or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than (x)
$5,000,000 in the case of an assignment of U.S. Revolving Loans, (y) C$1,500,000
in the case of an assignment of Canadian Revolving Loans and BA Outstandings and
(z) $1,000,000 in the case of an assignment of U.S. Term Loans unless each of
the U.S. Agent, the Canadian Agent (in the case of assignments of Canadian
Revolving Commitments) and, so long as no Event of Default has occurred and is
continuing, Airgas otherwise consents (each such consent not to be unreasonably
withheld or delayed); (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations hereunder, assigned, except that this clause (ii) shall not apply to
rights in respect of Competitive U.S. Loans, U.S. Swingline Loans, Canadian
Swingline Loans or the U.S Term Loan; (iii) any assignment of a U.S. Revolving
Commitment must be approved by the U.S. Agent, the U.S. Issuing Lenders and the
U.S. Swingline Lender (such approvals not to be unreasonably withheld) unless
the Person that is the proposed assignee is itself a U.S. Revolving Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); (iv) any assignment of a Canadian Revolving Commitment must be
approved by the Canadian Agent, the Canadian Issuing Lender and the Canadian
Swingline Lender unless the Person that is the proposed assignee is itself a
Canadian Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); (v) in the case of assignments of Canadian Revolving
Commitments, the parties to each assignment shall execute and deliver to the
Canadian Agent and the U.S. Agent an Assignment and Assumption, together with
(in cases other than an assignment to an Affiliate of the assigning Lender) a
processing and recordation fee of C$3,500 to the Canadian Agent, and the
Eligible Assignee, if it shall not be a Canadian Lender, shall deliver to the
U.S. Agent and the Canadian Agent an Administrative Questionnaire and (vi) in
all other cases, the parties to each assignment shall execute and deliver to the
U.S. Agent an Assignment and Assumption, together with (in cases other than an
assignment to an Affiliate of the assigning Lender) a processing and recordation
fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the U.S. Agent an Administrative Questionnaire. Subject to acceptance
and recording thereof by the applicable Agents pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Credit
Agreement and the Intercreditor Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Credit Agreement and the Intercreditor Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Credit Agreement and the Intercreditor Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 4.6, 4.9,
4.10, 4.11 and 11.5 with respect to facts and circumstances occurring prior to
the effective date of such assignment). Any assignment or transfer by a
92
Lender of rights or obligations under this Credit Agreement that does not comply
with this subsection shall be treated for purposes of this Credit Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) Register. Each Agent, acting solely for this purpose as an agent of
the applicable Borrowers, shall maintain at its office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of
the Loans and LOC Obligations owing to, each applicable Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive absent manifest error, and the Borrowers, the Agents and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the U.S. Issuing Lenders and the
Canadian Issuing Lender, in each case, at any reasonable time and from time to
time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the Credit Documents is pending,
any Lender wishing to consult with other Lenders in connection therewith may
request and receive from the U.S. Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrowers or the Agents, sell participations to any Person (other
than a natural person or a Borrower or any of the Borrowers' Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Credit Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in LOC Obligations, U.S. Swingline Loans and/or Canadian
Swingline Loans) owing to it); provided that (i) such Lender's obligations under
this Credit Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Credit Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Credit Agreement
and to approve any amendment, modification or waiver of any provision of this
Credit Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in clauses (i) through (viii)
of Section 11.6(a) that affects such Participant. Subject to subsection (e) of
this Section, Airgas agrees that each Participant shall be entitled to the
benefits of Sections 4.6, 4.9, 4.10, 4.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.2 as though it were a Lender, provided
such Participant agrees to be subject to Section 4.13 as though it were a
Lender.
(e) Limitation on Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 4.10 or 4.11 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with Airgas' prior written consent. A Participant that is
not incorporated under the laws of the United States or a state thereof shall
not be entitled to the benefits of Section 4.10 unless Airgas is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 4.11(b) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge
93
or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledge or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as by Bank of America as a U.S. Issuing Lender or U.S.
Swingline Lender after Assignment. Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its U.S.
Revolving Commitment pursuant to subsection (b) above, Bank of America may, (i)
if Bank of America is a U.S. Issuing Lender, upon thirty days' notice to Airgas
and the Lenders, resign as a U.S. Issuing Lender and/or (ii) upon thirty days'
notice to Airgas, resign as U.S. Swingline Lender. In the event of any such
resignation as U.S. Issuing Lender or U.S. Swingline Lender, Airgas shall be
entitled to appoint from among the Lenders a successor U.S. Issuing Lender or
U.S. Swingline Lender hereunder; provided, however, that no failure by Airgas to
appoint any such successor shall affect the resignation of Bank of America as a
U.S. Issuing Lender or U.S. Swingline Lender, as the case may be. If Bank of
America resigns as a U.S. Issuing Lender, it shall retain all the rights and
obligations of a U.S. Issuing Lender hereunder with respect to all U.S. Letters
of Credit outstanding as of the effective date of its resignation as a U.S.
Issuing Lender and all U.S. LOC Obligations with respect thereto (including the
right to require the U.S. Revolving Lenders to make U.S. Base Rate Loans or fund
risk participations in unreimbursed drawings under U.S. Letters of Credit
pursuant to Section 2.3(c)). If Bank of America resigns as U.S. Swingline
Lender, it shall retain all the rights of the U.S. Swingline Lender provided for
hereunder with respect to U.S. Swingline Loans made by it and outstanding as of
the effective date of such resignation, including the right to require the U.S.
Revolving Lenders to make U.S. Base Rate Loans or fund risk participations in
outstanding U.S. Swingline Loans pursuant to Section 2.4(b).
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent, the Collateral Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between an Agent, the Collateral Agent
or any Lender and the Credit Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Agents, the Collateral Agent or
any Lender would otherwise have. No notice to or demand on the Credit Parties in
any case shall entitle the Credit Parties to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agents, the Collateral Agent or the Lenders to any other or further action
in any circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
(a) The Credit Parties agree to: (i) pay all reasonable out-of-pocket
costs and expenses (A) of the U.S. Agent and the Collateral Agent in connection
with the negotiation, preparation, execution and delivery and administration of
this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of
94
Moore & Van Allen, PLLC, special counsel to the Agents and the Collateral Agent
as well as Canadian counsel to the Agents) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (B) of the U.S. Agent, the Collateral Agent and the Lenders in
connection with enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, in connection
with any such enforcement, the reasonable fees and disbursements of counsel for
the U.S. Agent, the Collateral Agent and each of the Lenders); (ii) pay and hold
each Agent, the Collateral Agent and each of the Lenders harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Agent, the Collateral Agent, each Lender, its
officers, directors, employees, representatives and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of (A) any investigation, litigation or other
proceeding (whether or not any Agent or Lender is a party thereto) occurring
subsequent to and as the result of the occurrence of a Default or Event of
Default and related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding or (B) the presence or Release of any Materials
of Environmental Concern at, under or from any Property owned, operated or
leased by any Consolidated Party, or the failure by any Consolidated Party to
comply with any Environmental Law (but excluding, in the case of either of
clause (A) or (B) above, any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
(b) Reimbursement by Lenders. To the extent that the Credit Parties for
any reason fail to indefeasibly pay any amount required under Section 11.5(a) to
be paid by them to the Agents (or any sub-agent thereof), the Collateral Agent
or any Related Party of any of the foregoing, each Lender severally agrees to
pay to the applicable Agent (or any such sub-agent), the Collateral Agent or
such Related Party, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against such Agent (or any such sub-agent) or
the Collateral Agent in its capacity as such, or against any Related Party of
any of the foregoing acting for such Agent (or any such sub-agent) or the
Collateral Agent in connection with such capacity; and provided further that
only the Canadian Lenders shall have any obligation to make any payment to the
Canadian Agent pursuant to this Section 11.5(b). The obligations of the Lenders
under this Section 11.5(b) are subject to the provisions of Section 4.12(d).
(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no party hereto shall assert, and each party hereto hereby
waives, any claim against any other party hereto or any other Person to be
indemnified under Section 11.5(a), on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Credit
Agreement, any other Credit Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan, Letter of
Credit or other extension of credit hereunder or the use of the proceeds
thereof. No Person to be indemnified under Section 11.5(a) shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Credit Agreement
or the other Credit Documents or the transactions contemplated hereby or
thereby.
95
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Credit Parties, provided further that:
(a) no such amendment, change, waiver, discharge or termination
shall:
(i) extend the final maturity of any Loan or of any
reimbursement obligations arising from drawings under Letters of
Credit, or any portion thereof without the written consent of each
Lender whose Loans, reimbursement obligations or portions thereof
that are being so extended;
(ii) postpone any date fixed by this Credit Agreement for the
payment of principal of any Loan (excluding mandatory prepayments)
or reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default
increase in interest rates) on any Loan or of any reimbursement
obligations arising from drawings under Letters of Credit or fees
hereunder without the written consent of each Lender entitled to
receive such payment;
(iii) reduce the principal amount on any Loan or of any
reimbursement obligations arising from drawings under Letters of
Credit or the amount of any accrued interest or fees, or increase
the Commitment of any Lender over the amount thereof in effect
without the written consent of each Lender entitled to receive such
payment or each Lender whose Commitment is being increased (it being
understood and agreed that a waiver of any Default or Event of
Default or of a mandatory reduction in the total commitments shall
not constitute a change in the terms of any Commitment of any
Lender);
(iv) amend, modify or waive any provision of this Section
11.6(a) or Section 4.13 or 4.14(b) without the written consent of
each Lender directly affected thereby;
(v) reduce any percentage specified in, or otherwise modify,
the definition of "Required Lenders", "Required U.S. Lenders" and
"Required Canadian Lenders" without the written consent of each
Lender directly affected thereby;
(vi) consent to the assignment or transfer by any Borrower of
any of its rights and obligations under (or in respect of) the
Credit Documents to which it is a party without the written consent
of each Lender; or
(vii) except as the result of or in connection with a
dissolution, merger, amalgamation or disposition of a Consolidated
Party not prohibited by Section 8.4, on the occurrence of a
Collateral and Guarantor Release Date or as otherwise permitted by
any Credit Document, release the Borrowers or substantially all of
the other Credit Parties from its or their obligations under the
Credit Documents without the written consent of each Lender that has
Credit Party Obligations owing by the Person to be released; and
(viii) to the extent the Credit Party Obligations are secured
by the Collateral, release all or substantially all of the
Collateral, except on the occurrence of a Collateral and Guarantor
Release Date or as the result of or in connection with an Asset
Disposition not prohibited by Section 8.4(b) or as otherwise
permitted by any Credit Document without the
96
written consent of each Lender whose Credit Party Obligations are
secured by the Collateral to be released;
(b) no provision of Article II may be amended without the consent of
the Required U.S. Lenders (provided further that (i) no provision of
Section 2.3 may be amended without the consent of the U.S. Issuing Lender
and (ii) no provision of Section 2.4 may be amended without the consent of
the U.S. Swingline Lender);
(c) no provision of Article III may be amended without the consent
of the Required Canadian Lenders (provided further (i) that no provision
of Section 3.2 may be amended without the consent of the Canadian
Swingline Lender and (ii) no provision of Section 3.3 may be amended
without the consent of the Canadian Issuing Lender); and
(d) no provision of Article X may be amended without the consent of
the Agents and the Collateral Agent.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
11.8 HEADINGS.
The headings of the articles, sections and subsections hereof are provided
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Credit Agreement.
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.3(i), 4.9, 4.11 or 11.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall survive
the making of the Loans hereunder.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of the State of New York in
New York County, or of the United States for the Southern District of New York,
and, by execution and delivery of this Credit Agreement, each Credit Party
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the nonexclusive jurisdiction of such courts. Each Credit
Party further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set out for notices pursuant to Section 11.1, such service to become effective
three (3) days after such mailing. Nothing herein shall affect the right of the
U.S. Agent to serve process in any other
97
manner permitted by law or to commence legal proceedings or to otherwise proceed
against a Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) With respect to the guaranty obligations of the Canadian Guarantors
arising under Article XII:
(i) (A) Without limiting the generality of subsections (a) and (b)
of this Section 11.10, each Canadian Guarantor agrees that any controversy
or claim with respect to it arising out of or relating to this Credit
Agreement or the other Credit Documents may, at the option of the Canadian
Agent and the Canadian Lenders, be settled immediately by submitting the
same to binding arbitration in the City of New York, New York (or such
other place as the parties may agree) in accordance with the Commercial
Arbitration Rules then obtaining of the American Arbitration Association.
Upon the request and submission of any controversy or claim for
arbitration hereunder, the Canadian Agent shall give the Canadian
Guarantors not less than 45 days written notice of the request for
arbitration, the nature of the controversy or claim, and the time and
place set for arbitration. Each Canadian Guarantor agrees that such notice
is reasonable to enable it sufficient time to prepare and present its case
before the arbitration panel. Judgment on the award rendered by the
arbitration panel may be entered in any court in which any action could
have been brought or maintained pursuant to subparagraph (ii) below,
including without limitation any court of the State of New York or any
Federal court sitting in the State of New York. The expenses of
arbitration shall be paid by the Canadian Guarantors.
(B) The provisions of subparagraph (A) above are intended to comply
with the requirements of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "Convention"). To the extent that any
provisions of such subparagraph (A) are not consistent with or fail to
conform to the requirements set out in the Convention, such subparagraph
(A) shall be deemed amended to conform to the requirements of the
Convention.
(C) Each Canadian Guarantor hereby specifically consents and submits
to the jurisdiction of the courts of the State of New York and courts of
the United States located in the State of New York for purposes of entry
of a judgment or arbitration award entered by the arbitration panel.
(ii) The guarantee of the Canadian Guarantors under Article XII is
an international transaction in which payment of Canadian Dollars in
Toronto, Ontario, Canada, is of the essence, and Canadian Dollars shall be
the currency of account in all events in respect of the guaranty
obligations of the Canadian Guarantors under Article XII. The payment
obligation of the Canadian Guarantors shall not be discharged by an amount
paid in another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on prompt
conversion to dollars and transfer to Toronto, Ontario, Canada, under
normal banking procedures does not yield
98
the amount of dollars in Toronto, Ontario, Canada due hereunder. In the
event that any payment by the Canadian Guarantors, whether pursuant to a
judgment or otherwise, upon conversion and transfer does not result in
payment of such amount of dollars in Toronto, Ontario, Canada, the
Canadian Agent and the Canadian Lenders shall have a separate cause of
action against the Canadian Guarantors for the additional amount necessary
to yield the amount due and owing to the Canadian Agent and the Canadian
Lenders.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents 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.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date and satisfaction of the conditions precedent set forth in
Section 5.1 when it shall have been executed by the Credit Parties and the
Agents, and the U.S. Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each Lender, and
thereafter this Credit Agreement shall be binding upon and inure to the benefit
of the Credit Parties, the Agents and each Lender and their respective
successors and assigns. Airgas and the Lenders party to the Existing Credit
Agreement each hereby agrees that, at such time as this Credit Agreement shall
have become effective pursuant to the terms of the immediately preceding
sentence, (i) the Existing Credit Agreement and the Commitments thereunder and
as defined therein automatically shall be terminated and (ii) all of the
promissory notes, if any, executed by Airgas in connection with the Existing
Credit Agreement automatically shall be canceled.
99
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding and until all of the Commitments
hereunder shall have expired or been terminated.
11.14 CONFIDENTIALITY.
Each of the Agents and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates' respective partners,
directors, officers, employees, agents, advisors and representatives and to any
direct or indirect contractual counterparty (or such contractual counterparty's
professional advisor) under any Hedging Agreement relating to Loans outstanding
under this Credit Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Credit Document or any action or proceeding
relating to this Credit Agreement or any other Credit Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Credit Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Credit Party and its obligations, (g) with the written
consent of Airgas or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to any Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrowers.
For purposes of this Section, "Information" means all information received
from a Credit Party or any Subsidiary relating to the Credit Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to an Agent or any Lender on a nonconfidential
basis prior to disclosure by such Credit Party or any Subsidiary. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
11.15 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control; provided, however, the
Intercreditor Agreement contains additional provisions with respect to the
allocation of certain recoveries from the Credit Parties that are binding only
among the Lenders.
11.16 USA PATRIOT ACT NOTICE.
Each Lender that is subject to the Act (as hereinafter defined) and each
Agent that is subject to the Act (for itself and not on behalf of any Lender)
hereby notifies the Borrowers that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the
Borrowers and other information that will allow such Lender or such Agent, as
applicable, to identify the Borrowers in accordance with the Act.
100
11.17 REPLACEMENT OF LENDERS.
If (i) any Lender requests compensation under Sections 4.6 or 4.9, (ii)
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.10,
(iii) any Lender is a Defaulting Lender or (iv) if any Lender refuses to consent
to an amendment, modification and/or waiver of this Credit Agreement, then
Airgas may, at its sole expense and effort, upon notice to such Lender and the
Agents, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 11.3), all of its interests, rights and obligations under
this Credit Agreement and the related Credit Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:
(a) Airgas shall have paid to the U.S. Agent or the Canadian Agent, as
applicable, the assignment fee specified in Section 11.3(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Credit Documents
(including any amounts under Sections 4.6, 4.9, 4.10 and 4.11) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the applicable Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 4.6 or 4.9 or payments required to be made pursuant
to Section 4.10, such assignment will result in a reduction in such compensation
or payments thereafter;
(d) such assignment does not conflict with applicable laws; and
(e) in the case of any replacement of Lenders under the circumstances
described in clause (iv) above, the applicable amendment, modification and/or
waiver of this Credit Agreement that Airgas has requested shall become effective
upon giving effect to such assignment (and any related assignments required to
be effected in connection therewith in accordance with this Section 11.17).
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling Airgas to require such assignment and delegation cease
to apply.
11.18 DESIGNATION AS SENIOR DEBT.
All Credit Party Obligations are hereby designated by the Credit Parties
as "Designated Senior Debt" for purposes of and as defined in each of the
Subordinated Note Indentures.
ARTICLE XII
GUARANTY
12.1 THE GUARANTY.
(a) U.S. Subsidiary Guarantors. Each of the U.S. Subsidiary Guarantors
hereby jointly and severally guarantees to each Lender, each Affiliate of a
Lender that enters into a Hedging Agreement with a Borrower, the Agents and the
Collateral Agent as hereinafter provided, as primary obligor and not as surety,
the prompt payment of the Credit Party Obligations in full when due (whether at
stated maturity, as a
101
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The U.S. Subsidiary
Guarantors hereby further agree that if any of the Credit Party Obligations are
not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the U.S. Subsidiary Guarantors will, jointly and severally, promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Credit Party
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
(b) Canadian Guarantors. Each of the Canadian Guarantors hereby jointly
and severally guarantees to each Canadian Lender, each Affiliate of a Canadian
Lender that enters into a Hedging Agreement with a Canadian Borrower, the Agents
and the Collateral Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Canadian Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Canadian Guarantors hereby further agree that if any of the
Canadian Obligations are not paid in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Canadian Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Canadian Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
of the United States, if applicable, or any comparable provisions of any other
applicable Bankruptcy Code.
12.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the U.S. Subsidiary Guarantors under Section 12.1 with
respect to the Credit Party Obligations and the obligations of the Canadian
Guarantors under Section 12.1 with respect to the Canadian Obligations are, in
each case, joint and several, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any of the Credit
Documents, Hedging Agreements between any Lender or Affiliate of a Lender and
the applicable Borrower, or any other agreement or instrument referred to
therein, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Credit Party Obligations or the Canadian
Obligations, as the case may be, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 12.2 that the respective
obligations of the U.S. Subsidiary Guarantors and the Canadian Guarantors
hereunder shall be absolute and unconditional under any and all circumstances.
Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the applicable Borrower or any
other applicable Guarantor of the Canadian Obligations for amounts paid under
this Article XII until such time as the Lenders (and any Affiliates of Lenders
entering into Hedging Agreements with the applicable Borrower) have been paid in
full in respect of all Credit Party Obligations or all Canadian Obligations, as
the case may be, all Commitments under this Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents or Hedging Agreements between the
applicable Borrower and
102
any Lender, or any Affiliate of a Lender. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Credit Party Obligations or Canadian Obligations, as the case may be,
shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement between the applicable Borrower
and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Hedging Agreements
shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations or Canadian
Obligations, as the case may be, shall be accelerated, or any of the
Credit Party Obligations or Canadian Obligations, as the case may be,
shall be modified, supplemented or amended in any respect, or any right
under any of the Credit Documents, any Hedging Agreement between the
applicable Borrower and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be waived or any other guarantee of any of the
Credit Party Obligations or Canadian Obligations, as the case may be, or
any applicable security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, any Agent, the Collateral
Agent or any Lender or Lenders as security for any of the Credit Party
Obligations or the Canadian Obligations, as the case may be, shall fail to
attach or be perfected; or
(e) any of the Credit Party Obligations or Canadian Obligations, as
the case may be, shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any applicable
Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of applicable Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agents, the Collateral Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Credit Documents, any Hedging Agreement between the applicable
Borrower and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Credit Documents or such Hedging Agreements, or
against any other Person under any other guarantee of, or security for, any of
the Credit Party Obligations or Canadian Obligations, as the case may be. The
rights of the Agents, the Collateral Agent and the Lenders and the Affiliates of
any of the Lenders contained herein shall be in addition to and independent of
all other rights which they may at any time have or hold in respect of any of
the Credit Party Obligations or Canadian Obligations.
12.3 REINSTATEMENT.
The obligations of the Guarantors under this Article XII shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations or the
Canadian Obligations, as the case may be, is rescinded or must be otherwise
restored by any holder of any of the Credit Party Obligations or the Canadian
Obligations, as the case may be, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Agents, the Collateral Agent and each Lender on demand for
all reasonable costs and
103
expenses (including, without limitation, fees and expenses of counsel) incurred
by such Agent, the Collateral Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
12.4 CERTAIN ADDITIONAL WAIVERS.
Without limiting the generality of the provisions of this Article XII,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat.
Sections 26-7 through 26-9, inclusive, to the extent applicable. Each Guarantor
further agrees that it shall have no right of recourse to security for the
Credit Party Obligations or the Canadian Obligations, as the case may be, except
through the exercise of the rights of subrogation pursuant to Section 12.2.
12.5 REMEDIES.
The Guarantors agrees that, to the fullest extent permitted by law, as
between the applicable Guarantors, on the one hand, and the Agents, the
Collateral Agent and the Lenders, on the other hand, the Credit Party
Obligations or the Canadian Obligations, as the case may be, may be declared to
be forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 12.1 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations and/or the Canadian Obligations, as the case may be,
(whether or not due and payable by any other Person) shall forthwith become due
and payable by the applicable Guarantors for purposes of Section 12.1. The
Guarantors acknowledge and agree that to the extent their obligations hereunder
become secured in accordance with the terms of the Collateral Documents, the
Lenders may exercise their remedies thereunder in accordance with the terms
thereof.
12.6 RIGHTS OF CONTRIBUTION.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Credit Documents and no Guarantor shall exercise such
rights of contribution until all Credit Party Obligations have been paid in full
and the Commitments have terminated.
12.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Article XII is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
12.8 COLLATERAL AND GUARANTOR RELEASE DATE; SUBSEQUENT COLLATERALIZATION
DATE.
(a) Upon the occurrence of any Collateral and Guarantor Release Date (and
until the occurrence of any Collateralization Date thereafter), each Guarantor
(other than Airgas) shall be fully released and discharged from its obligations
under, and, as applicable, the security interests under, this Credit Agreement
and the other Credit Documents to which such Person is a party. Promptly upon
the request of Airgas, the U.S. Agent and the Collateral Agent (on behalf of the
Lenders) shall, at Airgas'
104
expense, execute such documents and take such other action reasonably requested
by Airgas to evidence such release and discharge from all such obligations and
security interests.
(b) Immediately upon the occurrence of a Collateralization Date, the
guarantees of each U.S. Subsidiary Guarantor and Canadian Subsidiary Guarantor
under this Article XII shall automatically and without any further action be
reinstated, and the Credit Parties will comply with Sections 7.12 and 7.13.
[The remainder of this page has been left blank intentionally.]
105
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement 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. SUBSIDIARY 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.
RED-D-ARC, INC.
AIRGAS DATA, LLC
AIRGAS GASPRO, INC.
By: /s/ Robert M. McLaughlin
------------------------
Name: Robert M. McLaughlin
Title: Vice President
ATNL, INC.
By: /s/ Melanie Andrews
-------------------
Name: Melanie Andrews
Title: Vice President
CANADIAN SUBSIDIARY
GUARANTORS: AIRGAS INTERNATIONAL, INC.
AIRGAS, S.A. DE C.V.
RED-D-ARC, S.A. DE C.V.
AIRGAS WEST, S.A. DE C.V.
By: /s/ Joseph C. Sullivan
----------------------
Name: Joseph C. Sullivan
Title: Vice President
[Signatures continued]
107
U.S. AGENT: BANK OF AMERICA, N.A.,
By /s/ Marwan Isbaih
-----------------
Name Marwan Isbaih
Title Senior Vice President
108
CANADIAN AGENT: THE BANK OF NOVA SCOTIA
By /s/ James Rhee
--------------
Name James Rhee
Title Director
By /s/ Sangeeta Shah
-----------------
Name Sangeeta Shah
Title Associate
109
LENDERS: BANK OF AMERICA, N.A.
By /s/ Marwan Isbaih
-----------------
Name Marwan Isbaih
Title Senior Vice President
BANK OF AMERICA, N.A. (CANADA BRANCH)
By /s/ Medina Sales de Andrade
---------------------------
Name Medina Sales de Andrade
Title Assistant Vice President
110
THE BANK OF NEW YORK
By: /s/ David S. Csatari
--------------------
Name: David S. Csatari
Title: Vice President
111
BANK OF TOYKO-MITSUBISHI TRUST COMPANY
By: /s/ P. Shah
-----------
Name: P. Shah
Title: Vice President
CITIZENS BANK
By: /s/ Devon L. Starks
-------------------
Name: Devon L. Starks
Title: Vice President
JPMORGAN CHASE BANK , N.A.
By: /s/ Lee P. Brennan
------------------
Name: Lee P. Brennan
Title: Vice President
JPMORGAN CHASE BANK , N.A., TORONTO
By: /s/ Christine Chan
------------------
Name: Christine Chan
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Anne Sheahan
----------------
Name: Anne Sheahan
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Frank A. Pugliese
---------------------
Name: Frank A. Pugliese
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ James Rhee
--------------
Name: James Rhee
Title: Director
By: /s/ Sangeeta Shah
-----------------
Name: Sangeeta Shah
Title: Associate
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/ Matt C. Crew
----------------
Name: Matt C. Crew
Title: Commercial Banking Officer
BANK OF HAWAII
By: /s/ Luke Yeh
------------
Name: Luke Yeh
Title: Vice President
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ Phillip J. Salter
---------------------
Name: Phillip J. Salter
Title: Vice President
KEY BANK, NATIONAL ASSOCIATION
By: /s/ Marianne T. Meil
--------------------
Name: Marianne T. Meil
Title: Vice President
ALLIED IRISH BANKS, PLC
By: /s/ Roisin O'Connell
--------------------
Name: Roisin O'Connell
Title: Assistant Vice President
By: /s/ Derrick Lynch
-----------------
Name: Derrick Lynch
Title: Assistant Vice President
CALYON, NEW YORK BRANCH
By: /s/ James Gibson
----------------
Name: James Gibson
Title: Managing Director
By: /s/ Michael Madnick
-------------------
Name: Michael Madnick
Title: Director
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ William Archer
------------------
Name: William Archer
Title: Managing Director
MIZUHO CORPORATE BANK, LTD.
By: /s/ Greg Botshon
----------------
Name: Greg Botshon
Title: Senior Vice President
SUMITOMO MITSUI BANKING CORPORATION,
NEW YORK
By: /s/ Edward McColly
------------------
Name: Edward McColly
Title: Department Head
BRANCH BANKING AND TRUST COMPANY
By: /s/ Robert A. Bass
------------------
Name: Robert A. Bass
Title: Senior Vice President
BANK LEUMI USA
By: /s/ Joung Hee Hong
------------------
Name: Joung Hee Hong
Title: Vice President