SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT TO THE
THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of December 21, 2011 (this “Amendment”), is among:
| (i) | RADNOR FUNDING CORP., as Seller (the “Seller”); |
| (ii) | AIRGAS, INC. (in its individual capacity, “Airgas”), as Servicer (in such capacity, the “Servicer”); |
| (iii) | VICTORY RECEIVABLES CORPORATION (“Victory”), as a Conduit Purchaser; |
| (iv) | THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Administrator (in such capacity, the “Administrator”), as Purchaser Agent (in such capacity, the “Victory Purchaser Agent”) and as Related Committed Purchaser for the Purchaser Group that includes Victory (the “Victory Purchaser Group”); |
| (v) | WORKING CAPITAL MANAGEMENT CO., LP (“Working Capital”), as a Conduit Purchaser and as Related Committed Purchaser for the Purchaser Group that includes Working Capital (the “Working Capital Purchaser Group”); |
| (vi) | MIZUHO CORPORATE BANK, LTD., as Purchaser Agent (in such capacity, the “Working Capital Purchaser Agent”) for the Working Capital Purchaser Group; |
| (vii) | ATLANTIC ASSET SECURITIZATION LLC (“Atlantic”), as a Conduit Purchaser; and |
| (viii) | CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW YORK BRANCH, as Purchaser Agent (in such capacity, the “Atlantic Purchaser Agent”) and as Related Committed Purchaser for the Purchaser Group that includes Atlantic (the “Atlantic Purchaser Group”). |
The foregoing entities are herein collectively referred to as the “Parties”, and capitalized terms used but not otherwise defined herein (including such terms used above) have the respective meanings set forth in the Receivables Purchase Agreement (as defined below).
BACKGROUND
WHEREAS, the Parties have entered into that certain Third Amended and Restated Receivables Purchase Agreement, dated as of March 17, 2010 (as amended, supplemented or otherwise modified through the date hereof, the “Receivables Purchase Agreement”); and
WHEREAS, the Parties desire to amend the Receivables Purchase Agreement as set forth herein; and
WHEREAS, in connection with this Amendment and concurrently herewith, Airgas USA, LLC (“Airgas USA”) is entering into a Joinder Agreement, dated the date hereof (the “Joinder Agreement”), whereby Airgas USA will become a party to the Sale Agreement (as defined in the Receivables Purchase Agreement) and an Originator thereunder; and
WHEREAS, in connection with this Amendment and concurrently herewith, the Seller, the Servicer and the members of the Victory Purchaser Group are entering into a Fourth Amended and Restated Fee Letter, dated the date hereof (the “Victory Fee Letter”); and
WHEREAS, in connection with this Amendment and concurrently herewith, the Seller, the Servicer and the members of the Working Capital Purchaser Group are entering into an Amended and Restated Fee Letter, dated the date hereof (the “Working Capital Fee Letter”); and
WHEREAS, in connection with this Amendment and concurrently herewith, the Seller, the Servicer and the members of the Atlantic Purchaser Group are entering into an Amended and Restated Fee Letter, dated the date hereof (the “Atlantic Fee Letter”, together with the Victory Fee Letter and the Working Capital Fee Letter, collectively, the “Fee Letters”); and
WHEREAS, in connection with this Amendment and concurrently herewith, the members of the Atlantic Purchaser Group and the members of the Victory Purchaser Group are entering into a Transfer Supplement, dated the date hereof (the “Transfer Supplement”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. Amendments to the Receivables Purchase Agreement. The Receivables Purchase Agreement is amended as follows:
(a) The definition of “Facility Termination Date” set forth in Exhibit I to the Receivables Purchase Agreement is amended by deleting the date “March 15, 2013” where it appears in clause (a) thereof and substituting the date “December 21, 2013” therefor.
(b) Schedule IV to the Receivables Purchase Agreement is replaced in its entirety with Exhibit A attached hereto.
(c) Schedule VI to the Receivables Purchase Agreement is replaced in its entirety with Exhibit B attached hereto.
SECTION 2. Certain Representations, Warranties and Covenants. Each of the Seller, Airgas and the Servicer hereby represents, warrants and covenants to each of the other Parties that:
(a) the representations and warranties of such Person contained in Exhibit III to the Receivables Purchase Agreement are true and correct as of the date hereof (unless
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stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date);
(b) the execution and delivery by such Person of this Amendment, and the performance of its obligations under this Amendment and the Receivables Purchase Agreement (as amended hereby) are within its corporate powers and have been duly authorized by all necessary corporate action on its part, and this Amendment and the Receivables Purchase Agreement (as amended hereby) are its valid and legally binding obligations, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally; and
(c) no Termination Event or Unmatured Termination Event has occurred, is continuing, or would occur as a result of this Amendment.
SECTION 3. Effectiveness. This Amendment shall become effective as of the date hereof upon receipt by (i) the Victory Purchaser Agent of counterparts of the Victory Fee Letter, duly executed by each of the Parties party thereto, (ii) the Working Capital Purchaser Agent of counterparts of the Working Capital Fee Letter, duly executed by each of the Parties party thereto, (iii) the Atlantic Purchaser Agent of counterparts of the Atlantic Fee Letter, duly executed by each of the Parties party thereto, and (iv) the Administrator of the following, in each case, in form and substance satisfactory to the Administrator:
(a) counterparts of this Amendment, duly executed by each of the Parties;
(b) counterparts of the Joinder Agreement, duly executed by each of the Persons party thereto;
(c) counterparts of the Transfer Supplement, duly executed by each of the Persons party thereto;
(d) favorable opinions of counsel for the Seller, Airgas and Airgas USA, covering certain general corporate and enforceability, UCC and bankruptcy matters;
(e) confirmation from each Purchaser Agent that the “Amendment Fee” (as defined in each applicable Fee Letter) payable to such Purchaser Agent has been paid in full in accordance with the terms of the related Fee Letter; and
(f) such other documents and instruments as the Administrator may reasonably request.
SECTION 4. Post-Closing Covenant.
(a) On or prior to the effectiveness of any merger or consolidation between Airgas USA and any Originator (other than Airgas-Great Lakes, Inc., Airgas-Mid South, Inc., Airgas-West, Inc. or Airgas-South, Inc.), the Seller (or the Servicer on its behalf) shall cause to be delivered to the Administrator at the expense of the Seller, a favorable opinion of Delaware counsel for the Seller, Airgas and Airgas USA (currently Xxxxxxxx,
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Xxxxxx & Finger, PA), dated as of the effective date of such merger or consolidation, in form and substance reasonably satisfactory to the Administrator and covering certain corporate and UCC matters with respect to Airgas USA after giving effect to such merger or consolidation.
(b) Notwithstanding anything to the contrary in any Transaction Document, the failure of the Seller or the Servicer to timely perform the covenant under Section 4(a) above shall constitute a breach of covenant under the Receivables Purchase Agreement.
SECTION 5. Effect of Amendment. Except as expressly amended and modified by this Amendment, all provisions of the Receivables Purchase Agreement remain in full force and effect. After this Amendment becomes effective, all references in the Receivables Purchase Agreement (or in any other Transaction Document) to “the Receivables Purchase Agreement,” “this Agreement,” “hereof,” “herein” or words of similar effect, in each case referring to the Receivables Purchase Agreement, shall be deemed to be references to the Receivables Purchase Agreement as amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Receivables Purchase Agreement other than as set forth herein.
SECTION 6. Ratification. After giving effect to this Amendment, the Joinder Agreement and each of the transactions contemplated by this Amendment and the Joinder Agreement, all of the provisions of the Parent Undertaking Agreement shall remain in full force and effect and Airgas, as parent under the Parent Undertaking Agreement, hereby ratifies and affirms the Parent Undertaking Agreement and acknowledges that the Parent Undertaking Agreement has continued and shall continue in full force and effect in accordance with its terms.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts and by different Parties on separate counterparts, and each counterpart shall be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or other electronic transmission shall be as effective as delivery of a manually executed counterpart.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to any otherwise applicable conflict of law principles which would require the application of the laws of any jurisdiction other than those of the state of New York.
SECTION 9. Section Headings. The various headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Receivables Purchase Agreement or any provision hereof or thereof.
[Signatures begin on the following page]
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| RADNOR FUNDING CORP., as Seller | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President & Treasurer | ||
| S-1 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| AIRGAS, INC., as Servicer | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: Vice President | ||
| S-2 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Administrator | ||
| By: | /s/ Xxx Xxxxxxxxx | |
| Name: Xxx Xxxxxxxxx | ||
| Title: Managing Director | ||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Purchaser Agent for Victory’s Purchaser Group | ||
| By: | /s/ Xxx Xxxxxxxxx | |
| Name: Xxx Xxxxxxxxx | ||
| Title: Managing Director | ||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Related Committed Purchaser for Victory’s Purchaser Group | ||
| By: | /s/ X. Xxxxxx | |
| Name: X. Xxxxxx | ||
| Title: Vice President | ||
| S-3 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| VICTORY RECEIVABLES CORPORATION, as a Conduit Purchaser | ||
| By: | /s/ Xxxxx X. XxXxxxxxx | |
| Name: Xxxxx X. XxXxxxxxx | ||
| Title: Vice President | ||
| S-4 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| WORKING CAPITAL MANAGEMENT CO., LP, as a Conduit Purchaser and as Related Committed Purchaser for Working Capital’s Purchaser Group | ||
| By: | /s/ Shinichi Nochiide | |
| Name: Shinichi Nochiide | ||
| Title: Attorney-in-Fact | ||
| S-5 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| MIZUHO CORPORATE BANK, LTD., as Purchaser Agent for Working Capital’s Purchaser Group | ||
| By: | /s/ Xxxx Mo | |
| Name: Xxxx Mo | ||
| Title: Authorized Signatory | ||
| S-6 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Purchaser | ||
| By: | /s/ Kostantina Kourmpetis | |
| Name: Kostantina Kourmpetis | ||
| Title: Managing Director | ||
| By: | /s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | ||
| Title: Managing Director | ||
| S-7 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW YORK BRANCH, as Purchaser Agent and Related Committed Purchaser for Atlantic’s Purchaser Group | ||
| By: | /s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | ||
| Title: Managing Director | ||
| By: | /s/ Kostantina Kourmpetis | |
| Name: Kostantina Kourmpetis | ||
| Title: Managing Director | ||
| S-8 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
| Acknowledge and Agreed: | ||
| AIRGAS, INC., as the Parent under the Parent Undertaking Agreement | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: Vice President | ||
| S-9 | Second Amendment to Third Amended and Restated Receivables Purchase Agreement |
EXHIBIT A
SCHEDULE IV
LOCATION OF RECORDS
| Servicer |
Location of Records | |
| Airgas, Inc. |
000 X. Xxxxxx Xxxxxxx Xx., Xxxxx 000 Xxxxxx, XX 00000 | |
| Seller |
||
| Radnor Funding Corp. |
000 X Xxxxxxx Xxxx. 0000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 | |
| Originator |
||
| Airgas - East, Inc. |
00 Xxxxxxxxxxxx Xx. Xxxxx, XX 00000 | |
| Airgas-Great Lakes, Inc. |
000 Xxxxxxxx Xxx. Xxx Xxxx, XX 00000 | |
| Airgas - Intermountain, Inc. |
0000 Xxxxxxx Xxxx. Xxxxxx, XX 00000 | |
| Airgas - Mid America, Inc. |
0000 Xxxxxxxxxx Xx. Xxxxxxx Xxxxx, XX, 00000 | |
| Airgas - Mid South, Inc. |
00 X. Xxxxxx Xxx. Xxxxx, XX, 00000 | |
| Airgas-Nor Pac, Inc. |
00000 XX 00xx Xx. Xxxxxxxxx, XX 00000 | |
| Airgas - North Central, Inc. |
00 Xxxx 0xx Xx. Xxxxxxxx, XX 00000 | |
| Airgas - Northern California & Nevada, Inc. |
0000 Xxxxxx Xxxxxxx Xx. Xxxxxxxxxx, XX, 00000 | |
| Airgas - South, Inc. |
000 Xxxxxxxx Xx, Xxxxx 000 Xxxxxxxx, XX, 00000-0000 | |
| Airgas-Southwest, Inc. |
00 Xxxxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 | |
| Airgas - West, Inc. |
0000 Xxxxxxxxx Xxxx. Xxxxxxxx, XX, 00000 | |
| Airgas Carbonic, Inc. |
0000 Xxxxx Xx., Xxxxx 000 Xxxxxxxxxxxxx, XX 00000 | |
| Airgas Merchant Gases, LLC |
000 X. Xxxxxx Xxxxxxx Xx., Xxxxx 000 Xxxxxx, XX 00000 | |
| Airgas Safety, Inc. |
000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | |
| Airgas Specialty Gases, Inc. |
0000 Xxxxx Xx., Xxxxx 000 Xxxxxxxxxxxxx, XX 00000 | |
| Airgas Specialty Products, Inc. |
0000 Xxxxx Xx., Xxxxx 000 Xxxxxxxxxxxxx, XX 00000 | |
| Airgas USA, LLC |
000 X. Xxxxxx Xxxxxxx Xx., Xxxxx 000 Xxxxxx, XX 00000 | |
| National Welders Supply Company, Inc. |
000 Xxxxx Xx. Xxxxxxxxx, XX 00000 | |
| Nitrous Oxide Corp. |
0000 Xxxxx Xx., Xxxxx 000 Xxxxxxxxxxxxx, XX 00000 | |
Schedule IV-1
EXHIBIT B
SCHEDULE VI
COMMITMENTS
| Purchaser |
Commitment | |||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Related Committed Purchaser for Victory |
Commitment: $ | 155,000,000 | ||
| WORKING CAPITAL MANAGEMENT CO., LP, as a Conduit Purchaser and as Related Committed Purchaser for Working Capital |
Commitment: $ | 90,000,000 | ||
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW YORK BRANCH, as Related Committed Purchaser for Atlantic |
Commitment: $ | 50,000,000 | ||
Schedule VI-1
