FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 31, 2001, is entered into by and among
AIRGAS, INC., a Delaware corporation ("Airgas" and also a
"Borrower"), AIRGAS CANADA INC., a Canada corporation, and RED-D-
ARC LIMITED, an Ontario corporation, (each a "Canadian Borrower"
and together with Airgas, the "Borrowers"), the Guarantors
signatory hereto, the Lenders signatory hereto, BANK OF AMERICA,
N. A., as administrative agent for the Lenders (in such capacity,
the "U.S. Agent"), CANADIAN IMPERIAL BANK OF COMMERCE, as
Canadian administrative agent for the Lenders (in such capacity,
the "Canadian Agent"), FLEET NATIONAL BANK, as Syndication Agent,
and THE BANK OF NEW YORK, as Documentation Agent.
RECITALS
A. The Borrowers, the Guarantors, the Lenders and the
Agents are party to that certain Tenth Amended and Restated
Credit Agreement dated as of July 30, 2001 (the "Existing Credit
Agreement").
B. The Credit Parties have requested that the Required
Lenders amend the Existing Credit Agreement as provided herein.
C. The Required Lenders have agreed to amend the Existing
Credit Agreement on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms
used in this Amendment, including its preamble and recitals, have
the following meanings:
"Amended Credit Agreement" means the Existing
Credit Agreement as amended hereby.
"Amendment No. 1 Effective Date" is defined in
Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this
Amendment, including its preamble and recitals, have the meanings
provided in the Existing Credit Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the
Amendment No. 1 Effective Date, the Existing Credit Agreement is
hereby amended in accordance with this Part II.
SUBPART 2.1 Amendments to Section 1.1. Section 1.1 of the
Existing Credit Agreement is hereby amended in the following
respects:
(a) The following definitions appearing in Section 1.1
of the Existing Credit Agreement are amended and restated in
their entireties to read as follows:
"Applicable Percentage" means, for purposes of
calculating the applicable interest rate for any day for any
U.S. Base Rate Loan, any Eurodollar Loan or any Canadian
Base Rate Loan, the applicable rate of the Acceptance Fee
for any day for purposes of Section 3.4(a), the applicable
rate of the Unused Revolving U.S. Commitment Fee for any day
for purposes of Section 4.5(a)(i), the applicable rate of
the Unused Revolving Canadian Commitment Fee for any day for
purposes of Section 4.5(a)(ii), the applicable rate of the
Standby U.S. Letter of Credit Fee for any day for purposes
of Section 4.5(b)(i), the applicable rate of the Trade U.S.
Letter of Credit Fee for any day for purposes of Section
4.5(b)(ii), the applicable rate of the Standby Canadian
Letter of Credit Fee for any day for purposes of Section
4.5(c)(i), the applicable rate of the Trade Canadian Letter
of Credit Fee for any day for the purposes of Section
4.5(c)(ii), the appropriate applicable percentage,
corresponding to the higher of the long term credit ratings
of Airgas by S&P and Xxxxx'x in effect as of such date:
Applicable Percentages
----------------------
For
Revolving
U.S. Loans
and U.S.
Term Loans
------------- For For
For For For Unused Unused
Long For Standby For Trade Standby Trade Revolving Revolving
term Euro- Base Canadian For U.S. U.S. Canadian Canadian U.S. Canadian
Pricing credit dollar rate Base Rate Banker's Letter of Letter of Letter of Letter of Commitment Commitment
Level rating Loans Loans Loans Acceptances Credit Fee Credit Fee Credit Fee Credit Fee Fee Fee
------- ------ ------ ----- --------- ----------- ---------- ---------- ---------- ---------- ---------- ----------
I BBB+/
Baa1
or
higher 1.00% 0.00% 0.00% 1.00% 1.00% 0.50% 1.00% 0.500% 0.200% 0.200%
II BBB/
Baa2 1.50% 0.50% 0.50% 1.50% 1.50% 0.75% 1.50% 0.750% 0.275% 0.275%
III BBB-/
Baa3 1.75% 0.75% 0.75% 1.75% 1.75% 0.875% 1.75% 0.875% 0.350% 0.350%
IV BB+/
Ba1 2.00% 1.00% 1.00% 2.00% 2.00% 1.000% 2.00% 1.000% 0.400% 0.400%
V BB/
Ba2 2.50% 1.50% 1.50% 2.50% 2.50% 1.250% 2.50% 1.250% 0.500% 0.500%
VI BB-/
Ba3 or
lower 3.00% 2.00% 2.00% 3.00% 3.00% 1.500% 3.00% 1.500% 0.500% 0.500%
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In the event that the long term credit ratings of Airgas by
S&P and Xxxxx'x 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 than the
Pricing Level corresponding to the lower of the long term
credit ratings of Airgas by S&P and Xxxxx'x in effect as of
such date. At all times on or after the Willow Acquisition
Date and notwithstanding any other provision of this Credit
Agreement to the contrary, at any time that as of the last
day of most recently ended fiscal quarter for which the U.S.
Agent shall have received the Required Financial
Information, the Consolidated Total Leverage Ratio is
greater than 4.0 to 1.0, the Pricing Level shall not be more
favorable to the Borrowers than Pricing Level IV; provided,
however, that during the period from the Willow Acquisition
Date until the next succeeding date thereafter that the U.S.
Agent shall have received the Required Financial
Information, the Consolidated Total Leverage Ratio for
purposes of this definition shall be the ratio determined on
a pro forma basis as contemplated by clause (iii) of the
definition of "Willow Acquisition Conditions" set forth in
this Section 1.1.
"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 and the consummation on the
Closing Date of the Debt Issuance pursuant to the
Subordinated Note Indenture, (E) non-cash, non-recurring
charges, (F) any losses realized upon the disposition of
Property other than the disposition of Inventory in the
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
Willow Acquisition and the financing thereof to the extent
such charges were incurred not later than twelve months
following the Willow Acquisition Date and not exceeding
$10,000,000 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
course of business, all as determined in accordance with
GAAP. Notwithstanding the forgoing, the portion of
Consolidated EBITDA attributable to the assets and business
acquired in the Willow Acquisition shall be (1) for each of
the fiscal quarters ended December 31, 2000, March 31, 2001,
June 30, 2001 and September 30, 2001, the amount set forth
on Schedule 1.1I that corresponds to such fiscal quarter and
(2) for any period(s) occurring between October 1, 2001 and
the Willow Acquisition Date, an amount to be agreed upon by
Airgas and the U.S. Agent which shall be supported by the
direct profit of Willow and such financial information as
the U.S. Agent shall reasonably request with respect to
Willow for any such period.
"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
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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, provided that the Credit Parties shall cause to be
executed and delivered such documents, instruments and
certificates as the U.S. Agent may reasonably request so as
to cause the Credit Parties to be in compliance with the
terms of Section 7.13 after giving effect to such
transaction, (iv) any sale, lease, license, transfer or
other disposition of Property by a Canadian Subsidiary to
any Canadian Credit Party, provided that the Credit Parties
shall cause to be executed and delivered such documents,
instruments and certificates as the U.S. Agent may request
so as to cause the Credit Parties to be in compliance with
the terms of Section 7.13 after giving effect to such
transaction, (v) any portion of an Asset Disposition by such
Consolidated Party constituting a Permitted Investment,
(vi) if 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) any Permitted Lien, (xii) the
sale of the assets identified on Schedule 1.1B, and (xiii)
any sale, transfer or other disposition of the Dogwood
Assets for not less than the fair market value thereof that
is consummated within 120 days following the Willow
Acquisition; 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 1.1B
by a Consolidated Party not identified on Schedule 1.1B to
the extent such transfer of assets was made in contemplation
of an Asset Disposition permitted by clause (xii) above.
"Lenders" means each Canadian Lender and each U.S.
Lender, together with their successors and permitted
assigns; provided, however, for purposes of Section 11.3(b),
the term "Lender" shall not include any U.S. Term Lender, in
its capacity as such.
"Loan" or "Loans" means the Revolving U.S. Loans and
the U.S. Term Loans (or a portion of any Revolving U.S. Loan
or U.S. Term Loan bearing interest at the U.S. Base Rate or
the Eurodollar Rate and referred to as a U.S. Base Rate Loan
or a Eurodollar Loan), the Competitive U.S. Loans (or any
portion of any Competitive U.S. Loan), the Revolving
Canadian Loans (or any portion of any Revolving Canadian
Loan), the BA Outstandings, the U.S. Swingline Loans (or any
U.S. Swingline Loan bearing interest at the U.S. Base Rate
or the Quoted Rate and referred to as a U.S. Base Rate Loan
or a Quoted Rate U.S. Swingline Loan) and/or the Canadian
Swingline Loans, individually or collectively, as
appropriate.
"Notice of Borrowing" means (a) in the case of
Revolving U.S. Loans or the U.S. Term Loan, a written notice
of borrowing in substantially the form of Schedule
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 Revolving
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Canadian Loans, a written notice of borrowing in
substantially the form of Schedule 3.1(b)(i).
"Revolving U.S. Commitment" means, with respect to each
U.S. Lender:
(a) the commitment of such U.S. Lender in an
aggregate principal amount at any time outstanding of
up to such U.S. Lender's U.S. Commitment Percentage of
the Revolving U.S. Committed Amount, (i) to make
Revolving U.S. 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);
and
(b) for all purposes except for the purposes of
Sections 2.1(a), 4.4(a), 4.5(a) and 11.3(b), the
outstanding U.S. Term Loans of such U.S. Lender.
"U.S. Lenders" means (i) those Lenders identified as
U.S Lenders on the signature pages attached hereto, (ii)
each U.S. Term Lender and (iii) any Person which becomes a
U.S. Lender by executing a New Commitment Agreement pursuant
to Section 4.4(d), together with their successors and
assigns; provided, however, for purposes of Section 11.3(b),
the term "U.S. Lender" shall not include any U.S. Term
Lender, in its capacity as such.
(b) The following new definitions are added to
Section 1.1 of the Existing Credit Agreement in appropriate
alphabetical order:
"Approved Fund" means any Person (other than a natural
Person) that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business
that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Dogwood Assets" means the operations of Willow located
in North Carolina, South Carolina and southern Virginia.
The Dogwood Assets consist of ten locations that include
retail stores, gas fill plants and a specialty gas
laboratory.
"Principal Amortization Payment" means a principal
payment on the U.S. Term Loans as set forth in
Section 2.5(d).
"U.S. Term Lender" means each Person which executes a
U.S. Term Loan Commitment Agreement, together with its
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
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aggregate principal amount equal to the amount specified in
the U.S. Term Loan Commitment Agreement executed by such
U.S. Term Lender.
"U.S. Term Loan Commitment Agreement" means an
agreement in the form of Schedule 2.5 hereto.
"U.S. Term Loan Committed Amount" means the aggregate
principal amount of commitments (not to exceed $100,000,000)
received and consented to by the U.S. Agent from one or more
lenders acceptable to the U.S. Agent and Airgas, pursuant to
executed U.S. Term Loan Commitment Agreements.
"U.S. Term Loan Percentage" means, for any U.S. Term
Lender, the percentage obtained by dividing (i) the
principal amount of the U.S. Term Loan Commitment of such
U.S. Term Lender by (ii) the U.S. Term Loan Committed
Amount, as such percentage may be modified in connection
with any assignment made in accordance with the provisions
of Section 2.5(g).
"Willow" means Air Products and Chemicals, Inc.'s
business in the United States with respect to (a) the sale
of pressurized gases in pressurized cylinders and (b) the
provision (as a reseller/distributor/lessor) of equipment
(including, without limitation, welding equipment) and
materials necessary for or related to the use of packaged
gases.
"Willow Acquisition" means the Acquisition by Airgas of
Willow in accordance with the Willow Acquisition Conditions.
"Willow Acquisition Conditions" means:
(i) The U.S. Agent shall have received an
executed copy of the Willow Purchase Agreement which
(a) shall provide (1) for an aggregate purchase price
(excluding fees and expenses associated with the Willow
Acquisition and the financing thereof) not in excess of
$270 million less the amount of accounts receivable
administered on the SPOC system as of the Willow
Acquisition Date and less the value of the Dogwood
Assets to the extent they are not acquired and (2) that
as of the Willow Acquisition Date, except as set forth
in the Willow Purchase Agreement, since September 30,
2001 there shall not have occurred any event, change or
effect that is or would reasonably be expected to be
materially adverse to the condition (financial or
otherwise), properties, liabilities or results from
operations of Willow (excluding any event, change or
effect that arises or results from (A) the impact of a
decline in the market price of the products of Willow,
(B) the impact of an increase in the price of raw
materials consistent with the market generally, or (C)
the impact of changes in general economic and/or
financial market conditions) and (b) shall otherwise be
satisfactory to the U.S. Agent. The Willow Purchase
Agreement shall not have been altered, amended or
otherwise changed or supplemented or any condition
therein waived in a manner that is adverse to the
Lenders without the prior written consent of the U.S.
Agent.
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(ii) The Willow Acquisition shall have been
consummated on or before March 31, 2002 in accordance
with the terms of the Willow Purchase Agreement and in
compliance with applicable law and regulatory
approvals.
(iii) Upon giving pro forma effect to the
Willow Acquisition, the Credit Parties shall be in
compliance with the financial covenants set forth in
Section 7.10 on the basis of financial information for
Airgas and Willow for the 12-month period ended
September 30, 2001. Such pro forma calculations shall
be supported by certain audited and reviewed financial
information of Willow at September 30, 2001 (which
information shall be consistent in all material
respects with the information provided by Airgas to the
Agent and the Lenders in the Confidential Offering
Memorandum dated November 2001) and such other
financial information as the U.S. Agent shall
reasonably request with respect to Willow for the
period after September 30, 2001 through the Willow
Acquisition Date.
(iv) To the extent applicable, the U.S. Agent
shall have received all items in respect of the
Property acquired in such Acquisition required to be
delivered by the terms of Section 7.12 and/or
Section 7.13.
(v) The representations and warranties made by
the Credit Parties in any Credit Document shall be true
and correct in all material respects at and as if made
as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and
warranties expressly relate to an earlier date.
(vi) If the Willow Acquisition is consummated
after February 28, 2002, then the U.S. Agent shall have
received reviewed financial information of Willow for
the fiscal quarter at December 31, 2001 (which
information shall be consistent in all material
respects with the information provided by Airgas to the
Agent and the Lenders in the Confidential Offering
Memorandum dated November 2001).
(vii) The U.S. Agent shall have received from
Airgas (a) for the account of each U.S. Term Lender, an
upfront fee on such Lender's U.S. Term Loan Commitment
in an amount mutually acceptable to the U.S. Agent and
Airgas (net of amounts previously paid in respect of
such upfront fees pursuant to that certain fee letter
dated December 6, 2001 among Airgas, Bank of America
and Banc of America Securities LLC ("BAS")) and (b) for
the account of BAS, the costs, fees and expenses
required to be paid by Airgas to BAS pursuant to that
certain amended and restated engagement letter dated
December 6, 2001, as amended, among Airgas, Bank of
America and BAS.
"Willow Acquisition Date" means the date on which the
Willow Acquisition is consummated.
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"Willow Purchase Agreement" means the purchase
agreement to be entered into by Airgas and Air Products and
Chemicals, Inc. in respect of the Willow Acquisition,
together with all schedules and exhibits thereto.
SUBPART 2.2 Amendments to Section 2.5. A new Section 2.5
is hereby added to the Existing Credit Agreement and shall read
as follows:
2.5 U.S. Term Loan.
(a) U.S. Term Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations
and warranties set forth herein each U.S. Term Lender
severally agrees to make available to Airgas on the Willow
Acquisition Date such U.S. Term Lender's U.S. Term Loan
Percentage of a term loan in U.S. Dollars (the "U.S. Term
Loan") in the aggregate principal amount equal to the U.S.
Term Loan Committed Amount. The U.S. Term Loan may consist
of U.S. Base Rate Loans or Eurodollar Loans, or a
combination thereof, as Airgas may request; provided,
however, that no more than five (5) Eurodollar Loans which
are U.S. Term Loans shall be outstanding hereunder at any
time (it being understood that, for purposes hereof,
Eurodollar Loans with different Interest Periods shall be
considered as separate Eurodollar Loans, even if they begin
on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof,
be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest
Period). Amounts repaid on the U.S. Term Loan may not be
reborrowed.
(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
Willow Acquisition Date, 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 Willow
Acquisition Date, 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 Willow Acquisition Date, then the
full amount of the U.S. Term Loan shall be disbursed on the
Willow Acquisition Date 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 as specified in Section 4.14, or in such other
manner as the U.S. Agent may specify in writing, by 1:00
P.M. (Charlotte, North Carolina time) on the Willow
Acquisition Date 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
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in an aggregate principal amount that is not less than
U.S.$5,000,000 and integral multiples of U.S.$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 eighteen (18) consecutive quarterly installments as
follows (as such installments may hereafter be adjusted as a
result of prepayments made pursuant to Section 4.3), unless
accelerated sooner pursuant to Section 9.2:
U.S. Term
Loan Principal
Amortization
Payment due on the
Principal corresponding
Amortization Principal Amortization
Payment Dates Payment Date
------------- ----------------------
June 30, 2002 and
September 30, 2002 2.50%
December 31, 2002,
March 31, 2003,
June 30, 2003 and
September 30, 2003 3.75%
December 31, 2003,
March 31, 2004,
June 30, 2004 and
September 30, 2004 5.00%
December 31, 2004,
March 31, 2005,
June 30, 2005 and
September 30, 2005 6.25%
December 31, 2005,
March 31, 2006,
June 30, 2006 and
the Termination Date 8.75%
(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
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
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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).
(f) U.S. Term Notes. At the request of any U.S. Term
Lender, the portion of the U.S. Term Loan made by such U.S.
Term Lender shall be evidenced by a duly executed promissory
note of Airgas to such Lender in an original principal
amount equal to such Lender's U.S. Term Loan Percentage of
the U.S. Term Loan.
(g) Assignments of U.S. Term Loans. Each U.S. Term
Lender may assign all or a portion of its rights and
obligations hereunder with respect to its U.S. Term Loans,
pursuant to an assignment agreement substantially in the
form of Schedule 11.3(b), to (i) any Lender, any Subsidiary
of a Lender or any Affiliate of a Lender under direct or
indirect common control with such Lender, (ii) any Approved
Fund or (iii) any other commercial bank, financial
institution or "accredited investor" (as defined in
Regulation D of the Securities and Exchange Commission)
reasonably acceptable to the U.S. Agent and Airgas (so long
as no Default or Event of Default exists) (provided that it
shall not be unreasonable for Airgas to withhold its
approval for any assignment to any competitor of Airgas
(which term "competitor" shall not include a Person solely
by reason of the fact that such Person is making loans to,
accepting deposits from or otherwise generally engaging in
banking business with any competitor of Airgas); provided
that, except in the case of any assignment to an existing
Lender, such assignment shall be in an integral multiple of
U.S.$1,000,000 (or, if less, the remaining amount of the
U.S. Term Loans being assigned by such U.S. Term Lender).
Any assignment pursuant to this Section 2.5(g) shall be
effective upon delivery to the U.S. Agent of written notice
of the assignment together with a transfer fee of U.S.$3,500
payable to the U.S. Agent for its own account from and after
the effective date specified in the applicable assignment
agreement. In addition, the assigning U.S. Term Lender will
give prompt notice to Airgas of any such assignment. Upon
the effectiveness of any such assignment (and after notice
to, and (to the extent required pursuant to the terms
hereof), with the consent of, Airgas as provided herein),
the assignee shall become a "U.S. Term Lender" for all
purposes of this Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the
assigning U.S. Term Lender shall be relieved of its
obligations hereunder to the extent of the U.S. Term Loans
being assigned. By executing and delivering an assignment
agreement in accordance with this Section 2.5(g), the
assigning U.S. Term Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such
assigning U.S. Term Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free
and clear of any adverse claim; (ii) except as set forth in
clause (i) above, such assigning U.S. Term Lender makes no
representation or warranty and assumes no responsibility
with respect to any statements, warranties or
representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto,
or the execution, legality, validity, enforceability,
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genuineness, sufficiency or value of this Credit Agreement,
any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or any of its
respective Affiliates or the performance or observance by
any Credit Party of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto;
(iii) such assignee represents and warrants that it is
legally authorized to enter into such assignment agreement;
(iv) such assignee confirms that it has received a copy of
this Credit Agreement, the other Credit Documents and such
other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into
such assignment agreement; (v) such assignee will
independently and without reliance upon the Agents, such
assigning U.S. Term Lender or any other Lender, and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under this Credit Agreement and
the other Credit Documents; (vi) such assignee appoints and
authorizes the Agents to take such action on its behalf and
to exercise such powers under this Credit Agreement or any
other Credit Document as are delegated to the Agents by the
terms hereof or thereof, together with such powers as are
reasonably incidental thereto; (vii) such assignee agrees
that it will perform in accordance with their terms all the
obligations which by the terms of this Credit Agreement and
the other Credit Documents are required to be performed by
it as a U.S. Term Lender; and (viii) such assignee agrees
that it will be bound by the terms of the Intercreditor
Agreement, regardless of whether such assignee becomes a
signatory thereto. Each Person that shall become a U.S.
Term Lender pursuant to Section 2.5(g) shall, upon the
effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements
required pursuant to Section 4.10(b).
(h) Pro Rata Treatment. Each U.S. Term Loan, each
payment or prepayment of principal in respect of any U.S.
Term Loan, each payment of interest on the U.S. Term Loans
and each conversion or extension of any U.S. Term Loan,
shall be allocated pro rata among the U.S. Term Lenders in
accordance with the respective principal amounts of their
outstanding U.S. Term Loans and Participation Interests in
U.S. Term Loans.
SUBPART 2.3 Amendments to Section 4.2. Section 4.2 of
the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
4.2 Extension and Conversion.
(a) Airgas. Airgas shall have the option, on any
Business Day, to extend existing Revolving U.S 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 Sections
2.1(b)(ii) and 3.1(b)(ii), (iii) no more than 11 Eurodollar
11
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), (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 U.S. Lender notice
as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
SUBPART 2.4 Amendments to Section 4.3. Section 4.3(a)
and Section 4.3(b)(v) of the Existing Credit Agreement are hereby
amended in their entireties to read as follows:
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 Revolving Canadian 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 Revolving U.S.
Loans and the U.S. Term Loan, in a minimum principal amount of
U.S.$5,000,000 and integral multiples of U.S.$1,000,000 in excess
thereof, (B) in the case of Revolving Canadian Loans, in a
minimum principal amount of C$1,500,000 and integral multiples of
C$100,000 in excess thereof and (C) in the case of U.S. Swingline
Loans, in a minimum principal amount of U.S.$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.
12
*******
(b) Mandatory Prepayments.
*******
(v) Application of Certain Mandatory Prepayments.
(A) Asset Dispositions and Debt Issuances by
the U.S. Credit Parties. All amounts required to
be paid by the U.S. Credit Parties pursuant to
Section 4.3(b)(iii) or (iv) shall be applied first
pro rata to (1) the U.S. Term Loan (ratably to the
remaining Principal Amortization Payments
thereof), and (2) (a) the U.S. Swingline Loans,
(b) the Revolving U.S. Loans and (c) the
Competitive U.S. Loans (and, after all Revolving
U.S. Loans, Competitive U.S. Loans and U.S.
Swingline 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 second to the Canadian Obligations of
the types described in and in the manner provided
in subclause (B) below. To the extent the
aggregate U.S. Dollar Amount of all prepayments
required to be made pursuant to Sections
4.3(b)(iii) and 4.3(b)(iv) exceeds
U.S.$75,000,000, the Revolving U.S. Committed
Amount shall be permanently reduced in an amount
equal to the U.S. Dollar Amount of all additional
amounts applied pursuant to this clause (A) and
clause (B) below). Without limiting the foregoing
sentence, to the extent that any obligation to
make a mandatory prepayment of the loans arises
from an Asset Disposition Prepayment Event of the
type described in clause (ii) of the definition
thereof, the Revolving U.S. Committed Amount shall
be permanently reduced in an amount equal to the
U.S. Dollar Amount of such prepayment.
(B) Asset Dispositions and Debt Issuances by
the Canadian Credit Parties. All amounts required
to be paid by the Canadian Credit Parties pursuant
to Section 4.3(b)(iii) or (iv) shall be applied
first to the Canadian Swingline Loans, second to
the Revolving Canadian Loans, third to the BA
Outstandings in direct order of maturities (and,
after all Revolving Canadian 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) and fourth
to the remaining Credit Party Obligations of the
types described in and in the manner provided in
subclause (A) above. To the extent the aggregate
U.S. Dollar Amount of all prepayments required to
be made pursuant to Sections 4.3(b)(iii) and
4.3(b)(iv) exceeds U.S.$75,000,000, the Revolving
Canadian Committed Amount shall be permanently
reduced in an amount equal to the Canadian Dollar
Equivalent of all additional amounts applied
pursuant to this clause (B) and clause (A) above).
13
Without limiting the foregoing sentence, to the
extent that any obligation to make a mandatory
prepayment of the loans arises from an Asset
Disposition Prepayment Event of the type described
in clause (ii) of the definition thereof, the
Revolving Canadian Committed Amount shall be
permanently reduced in an amount equal to the
Canadian Dollar Equivalent of such prepayment.
Within the parameters of the applications set forth
above, prepayments of Revolving U.S. 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.
SUBPART 2.5 Amendments to Section 4.4. The introductory
clause of Section 4.4(d) of the Existing Credit Agreement is
hereby amended in its entirety to read as follows and a new
Section 4.4(e) is hereby added to the Existing Credit Agreement
and shall read as follows:
:
4.4 Termination and Reduction of Commitments; Increase of
Commitments.
*******
(d) Increase in Commitments. Following the Willow
Acquisition Date, the Borrowers shall have the right, upon at
least fifteen (15) Business Days' prior written notice to the
U.S. Agent, to increase the Revolving U.S. Committed Amount
and/or the Revolving Canadian Committed Amount, in the aggregate,
by the U.S. Dollar Amount (or the Canadian Dollar Equivalent) of
up to the difference of (i) U.S.$100,000,000 minus (ii) the U.S.
Term Loan Committed Amount, in one or more increases, at any time
and from time to time on or after the Closing Date, subject,
however, in any such case, to satisfaction of the following
conditions precedent:
*******
(e) Termination of U.S. Term Loan Commitments. On the
date, if any, that the Willow Purchase Agreement is terminated in
accordance with Section 15 thereof, the U.S. Term Loan
Commitments shall automatically terminate.
SUBPART 2.6 Amendments to Section 4.14(b).
Section 4.14(b) of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
4.14 Payments, Computations, Etc.
(b) Allocation of Payments from U.S. Credit Parties
After-Acceleration. Notwithstanding any other provision of this
Credit Agreement to the contrary, after acceleration of the
14
Credit Party Obligations pursuant to Section 9.2 and after taking
into account the application of the amounts collected or received
from the Canadian Credit Parties as provided in Section 4.14(c),
all amounts collected or received by the Agents or any Lender
from the U.S. Credit Parties on account of the Credit Party
Obligations or any other amounts outstanding under any of the
Credit Documents or in respect of the Collateral pledged by the
U.S. Credit Parties in support of the Credit Party Obligations
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the U.S. Agent in connection with
enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the U.S. 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 U.S.
Agent;
THIRD, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable
attorneys' fees) of each of the U.S. Lenders in connection
with enforcing its rights under the Credit Documents or
otherwise with respect to the Credit Party Obligations
(other than the Canadian Obligations) owing to such U.S.
Lender;
FOURTH, to the payment of all of the Credit Party
Obligations (other than the Canadian Obligations) consisting
of accrued fees and interest;
FIFTH, to the payment of the outstanding principal
amount of the Credit Party Obligations (other than the
Canadian Obligations) (including the payment or cash
collateralization of the outstanding U.S. LOC Obligations);
SIXTH, to all other Credit Party Obligations (other
than the Canadian 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; and
SEVENTH, to the payment of the surplus, if any, to the
payment of the Canadian Obligations in accordance with
Section 4.14(c).
In carrying out the foregoing, (i) amounts received shall
be applied in the numerical order provided until exhausted prior
to application to the next succeeding category; (ii) each of the
Lenders shall receive an amount equal to its pro rata share
(based on the proportion that the then outstanding Revolving U.S.
Loans, U.S. Term Loans, Competitive U.S. Loans and U.S. LOC
Obligations held by such Lender bears to the aggregate then
outstanding Revolving U.S. Loans, U.S. Term Loans, Competitive
U.S. Loans and U.S. LOC Obligations) of amounts available to be
applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and
"SIXTH" above; and (iii) 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, such amounts shall be held by the U.S. Agent
in a cash collateral account and applied (A) first, to reimburse
the U.S. Issuing Lender from time to time for any drawings under
15
such U.S. Letters of Credit and (B) then, following the
expiration of all U.S. 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).
SUBPART 2.7 Amendments to Section 7.1. Section 7.1(c) of
the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished,
to each of the Agents and each of the Lenders:
*******
(c) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 7.1(a) and
7.1(b) above, a certificate of an Executive Officer of
Airgas substantially in the form of Schedule 7.1(c), (i)
demonstrating compliance with the financial covenants
contained in Section 7.10 by calculation thereof as of the
end of each such fiscal period, (ii) including a description
of adjustments to Consolidated EBITDA (of the type described
in clause (H) of the definition thereof) attributable to the
Willow Acquisition 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.
SUBPART 2.8 Amendments to Section 7.10. Section 7.10 of
the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
7.10 Financial Covenants.
(a) Consolidated Total Leverage Ratio. The Credit Parties
shall cause the Consolidated Total Leverage Ratio as of each
Calculation Date set forth below to be no greater than:
Calendar
Year March 31 June 30 September 30 December 31
-------- -------- ------- ------------ -----------
2001 N/A 4.45 to 1.00 4.45 to 1.00 4.45 to 1.00
2002 4.45 to 1.00 4.45 to 1.00 4.25 to 1.00 4.25 to 1.00
2003 4.25 to 1.00 4.25 to 1.00 4.25 to 1.00 4.25 to 1.00
2004 4.00 to 1.00 4.00 to 1.00 4.00 to 1.00 4.00 to 1.00
Thereafter 3.75 to 1.00 3.75 to 1.00 3.75 to 1.00 3.75 to 1.00
16
(b) Consolidated Senior Leverage Ratio. The Credit Parties
shall cause the Consolidated Senior Leverage Ratio as of each
Calculation Date set forth below to be no greater than:
Calendar
Year March 31 June 30 September 30 December 31
-------- -------- ------- ------------ -----------
2001 N/A 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00
2002 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00
2003 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00
2004 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00 3.00 to 1.00
Thereafter 2.75 to 1.00 2.75 to 1.00 2.75 to 1.00 2.75 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. The Credit
Parties shall cause the Consolidated Fixed Charge Coverage Ratio
as of each Calculation Date set forth below to be at least:
Calendar
Year March 31 June 30 September 30 December 31
-------- -------- ------- ------------ -----------
2001 N/A 1.75 to 1.00 1.75 to 1.00 1.75 to 1.00
2002 1.75 to 1.00 1.75 to 1.00 1.75 to 1.00 1.75 to 1.00
2003 2.00 to 1.00 2.00 to 1.00 2.00 to 1.00 2.00 to 1.00
2004 2.25 to 1.00 2.25 to 1.00 2.25 to 1.00 2.25 to 1.00
Thereafter 2.50 to 1.00 2.50 to 1.00 2.50 to 1.00 2.50 to 1.00
SUBPART 2.9 Amendments to Section 8.5. Section 8.5(i) of
the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
8.5 Investments.
The Credit Parties will not permit any Consolidated Party to make
any Investments, except for:
*******
(i) (i) the Willow Acquisition and (ii) after the first to
occur of (x) the date, if any, that the Willow Purchase Agreement
is terminated in accordance with Section 15 thereof and (y) April
1, 2002, other Investments consisting of an Acquisition by Airgas
or any Subsidiary of Airgas, provided that (A) the Property
acquired (or the Property of the Person acquired) in such
Acquisition is used or useful in the same or a similar or
ancillary line of business as Airgas and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or
expansions thereof), (B) to the extent applicable, the U.S. Agent
shall have received all items in respect of the Capital Stock or
Property acquired in such Acquisition required to be delivered by
the terms of Section 7.12 and/or Section 7.13, (C) in the case of
an Acquisition of the Capital Stock of another Person, the board
of directors (or other comparable governing body) of such other
Person shall have duly approved such Acquisition, (D) Airgas
shall have delivered to the U.S. Agent (1) a Pro Forma Compliance
17
Certificate demonstrating that, upon giving effect to such
Acquisition on a Pro Forma Basis, Airgas would be in compliance
with the financial covenants set forth in Sections 7.10(a) - (c)
and (2) if the EBITDA for the four fiscal quarter period ending
prior to the date of such Acquisition attributable to the Person
or Property acquired in such Acquisition exceeds $10,000,000, a
consolidated balance sheet and income statement of such Person or
Property, together with related consolidated statements of
operations and retained earnings and of cash flows for such four
fiscal quarter period with respect to such Person or Property
which have been prepared in accordance with GAAP and reviewed by
an independent certified public accountant of recognized national
standing reasonably acceptable to the U.S. Agent, (E) the
representations and warranties made by the Credit Parties in any
Credit Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition
(after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier
date and (F) the aggregate consideration (including cash and non-
cash consideration and any assumption of Indebtedness, but
excluding consideration consisting of any Capital Stock of Airgas
issued to the seller of the Capital Stock or Property acquired in
such Acquisition and consideration consisting of the proceeds of
any Equity Issuance by Airgas consummated subsequent to the
Closing Date) paid by the Consolidated Parties for all such
Acquisitions occurring during any fiscal year shall not exceed as
of the date of such Acquisition after giving effect to any such
Acquisition (1) if the Applicable Percentage is based on "Pricing
Level I", "Pricing Level II" or "Pricing Level III", $100,000,000
during any fiscal year, (2) if the Applicable Percentage is based
on "Pricing Level IV", $75,000,000 during any fiscal year or
(3) if the Applicable Percentage is based on "Pricing Level V" or
"Pricing Level VI", $50,000,000 during any fiscal year; provided,
however, that following the consummation, if any, of the Willow
Acquisition, such aggregate consideration paid by the
Consolidated Parties for all such Acquisitions occurring during
any fiscal year shall not exceed as of the date of such
Acquisition after giving effect to any such Acquisition
$12,500,000 unless the Consolidated Total Leverage Ratio as of
the last day of the fiscal quarter ended at least 45 days prior
to any such Acquisition (or, during the period from the Willow
Acquisition Date until the next succeeding date thereafter that
the U.S. Agent shall have received the Required Financial
Information, the Consolidated Total Leverage Ratio as determined
on a pro forma basis as contemplated by clause (iii) of the
definition of "Willow Acquisition Conditions" set forth in
Section 1.1) is less than 4.0 to 1.0; provided further, that if
the Willow Acquisition is consummated, Airgas and it Subsidiaries
shall not be permitted to make any other Investments pursuant to
this Section 8.5(i) prior to the first day of the fiscal year
commencing April 1, 2002.
SUBPART 2.10 Amendments to Section 10.4. Section 10.4 of
the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
18
10.4 Reliance on Communications.
Each of the Agents shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Credit Parties,
independent accountants and other experts selected by the U.S.
Agent with reasonable care). Each of the Agents may deem and
treat each Lender as the owner of its interests hereunder for all
purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Agent in
accordance with Section 2.5(g) or Section 11.3(b) hereof. Each
of the Agents shall be fully justified in failing or refusing to
take any action under this Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice
or concurrence as it deems appropriate from, in the case of the
U.S. Agent, the Required Lenders, or, in the case of the Canadian
Agent, the Required Canadian Lenders, or it shall first be
indemnified to its satisfaction by, in the case of the U.S.
Agent, the Lenders, or, in the case of the Canadian Agent, the
Canadian Lenders, against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder or
under any of the other Credit Documents in accordance with a
request of, in the case of the U.S. Agent, the Required Lenders,
or, in the case of the Canadian Agent, the Required Canadian
Lenders (or, in the case of the U.S. Agent or the Canadian Agent,
all the Lenders to the extent specifically provided in Section
10.6) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders (including
their successors and assigns).
SUBPART 2.11 New Schedule 1.1I. A new Schedule 1.1I in
the form of Schedule 1.1I attached hereto is hereby added to the
Existing Credit Agreement.
SUBPART 2.12 Amendments to Schedule 2.1(b)(i). Schedule
2.1(b)(i) of the Existing Credit Agreement is hereby replaced
with Schedule 2.1(b)(i) attached hereto.
SUBPART 2.13 New Schedule 2.5. A new Schedule 2.5 in the
form of Schedule 2.5 attached hereto is hereby added to the
Existing Credit Agreement.
SUBPART 2.14 Amendments to Schedule 11.3. Schedule 11.3
of the Existing Credit Agreement is hereby replaced with Schedule
11.3 attached hereto.
SUBPART 2.15 Conditional Amendments to Section 11.6. In
the event that the Lenders unanimously approve and execute this
Amendment, the introductory clause of Section 11.6 of the
Existing Credit Agreement is hereby amended in its entirety to
read as follows:
19
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 that no
such amendment, change, waiver, discharge or termination
shall, without the consent of each Lender affected thereby:
PART III
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective as of the date
(the "Amendment No. 1 Effective Date") when all of the conditions
set forth in this Part III shall have been satisfied.
SUBPART 3.1 Execution of Counterparts of Amendment. The
U.S Agent shall have received counterparts of this Amendment on
or before December 31, 2001, which collectively shall have been
duly executed on behalf of each of the Borrowers, the Guarantors
and the Required Lenders.
SUBPART 3.2 Corporate Documents. The U.S Agent shall have
received the following:
(i) Resolutions. Copies of resolutions of the Board
of Directors of each U.S. Credit Party approving and
adopting this Amendment, the transactions contemplated
therein and authorizing execution and delivery thereof,
certified by a secretary or assistant secretary of such U.S.
Credit Party to be true and correct and in force and effect
as of the Amendment No. 1 Effective Date.
(ii) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to Airgas
certified as of a recent date by the appropriate
Governmental Authorities of the state of incorporation and
the state of the chief executive office and principal place
of business.
(iii) Incumbency. An incumbency certificate of
each U.S. Credit Party certified by a secretary or assistant
secretary to be true and correct as of the Amendment No. 1
Effective Date.
SUBPART 3.3 Opinion of Counsel. The U.S. Agent shall have
received a legal opinion of Cravath, Swaine & Xxxxx dated as of
the Amendment No. 1 Effective Date and in form and substance
reasonably satisfactory to the U.S. Agent.
SUBPART 3.4 Additional Financing. The sum of the U.S. Term
Loan Committed Amount plus the principal amount of all other
financing arrangements (the "Additional Financing") made by
Airgas to pay for the Willow Acquisition (which arrangements
shall otherwise be permitted by the Credit Agreement) shall equal
$100,000,000, and Airgas shall have obtained the amount of the
Additional Financing prior to or simultaneously with the
Amendment No. 1 Effective Date.
20
PART IV
MISCELLANEOUS
SUBPART 4.1 Construction. This Amendment is a Credit
Document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms
and provisions of the Amended Credit Agreement.
SUBPART 4.2 Representations and Warranties. Each Credit
Party hereby represents and warrants that (i) each Credit Party
that is party to this Amendment: (a) has the requisite corporate
power and authority to execute, deliver and perform this
Amendment, as applicable and (b) is duly authorized to, and has
been authorized by all necessary corporate action, to execute,
deliver and perform this Amendment, (ii) the representations and
warranties contained in Section 6 of the Amended Credit Agreement
are true and correct in all material respects on and as of the
date hereof upon giving effect to this Amendment as though made
on and as of such date (except for those which expressly relate
to an earlier date) and (iii) no Default or Event of Default
exists under the Existing Credit Agreement on and as of the date
hereof upon giving effect to this Amendment.
SUBPART 4.3 Acknowledgment. The Guarantors acknowledge and
consent to all of the terms and conditions of this Amendment and
agree that this Amendment does not operate to reduce or discharge
the Guarantors' obligations under the Amended Credit Agreement or
the other Credit Documents. The Guarantors further acknowledge
and agree that the Guarantors have no claims, counterclaims,
offsets, or defenses to the Credit Documents and the performance
of the Guarantors' obligations thereunder or if the Guarantors
did have any such claims, counterclaims, offsets or defenses to
the Credit Documents or any transaction related to the Credit
Documents, the same are hereby waived, relinquished and released
in consideration of the Lenders' execution and delivery of this
Amendment.
SUBPART 4.4 Counterparts. This Amendment may be executed
by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall
constitute together but one and the same agreement.
SUBPART 4.5 Binding Effect. This Amendment, the Amended
Credit Agreement and the other Credit Documents embody the entire
agreement between the parties and supersede all prior agreements
and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement
between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the
parties. Except as expressly modified and amended in this
Amendment, all the terms, provisions and conditions of the Credit
Documents shall remain unchanged and shall continue in full force
and effect.
SUBPART 4.6 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
21
SUBPART 4.7 Severability. If any provision of this
Amendment is determined to be illegal, invalid or unenforceable,
such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or
unenforceable provisions.
22
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered
as of the date first above written.
BORROWERS: AIRGAS, INC.
By: /S/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
AIRGAS CANADA INC.
By: /S/Xxxxxx X. XxXxxxxxxx
Name: Xxxxxx X. XxXxxxxxxx
Title: Vice President
RED-D-ARC LIMITED
By: /S/Xxxxxx X. XxXxxxxxxx
Name: Xxxxxx X. XxXxxxxxxx
Title: Vice President
S-1
U.S. GUARANTORS: AIRGAS-EAST, INC.
AIRGAS-GREAT LAKES, INC.
AIRGAS-MID AMERICA, INC.
AIRGAS-NORTH CENTRAL, INC.
AIRGAS-SOUTH, INC.
AIRGAS-GULF STATES, INC.
AIRGAS-INTERMOUNTAIN, INC.
AIRGAS-MID SOUTH, INC.
AIRGAS-NORPAC, INC.
AIRGAS-NORTHERN CALIFORNIA & NEVADA, INC.
AIRGAS-SOUTHWEST, INC.
AIRGAS-WEST, INC.
AIRGAS-SAFETY, INC.
RUTLAND TOOL & SUPPLY CO., INC.
AIRGAS CARBONIC, INC.
AIRGAS SPECIALTY GASES, INC.
NITROUS OXIDE CORP.
PURITAN MEDICAL PRODUCTS, INC.
RED-D-ARC, INC.
ATNL, INC.
AIRGAS REALTY, INC.
CYLINDER LEASING CORP.
AIRGAS DATA, LLC
AIRGAS DIRECT INDUSTRIAL VESSEL, LLC
By: /S/Xxxxxx X. XxXxxxxxxx
Name: Xxxxxx X. XxXxxxxxxx
Title: Vice President
CANADIAN SUBSIDIARY
GUARANTORS: AIRGAS INTERNATIONAL, INC.
AIRGAS, S.A. DE C.V.
AIRGAS MEXICO, S.A. DE C.V.
By: /S/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
[Signatures continued]
S-2
U.S. AGENT: BANK OF AMERICA, N.A.,
By: /S/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Managing Director
U.S. LENDERS: BANK OF AMERICA, N.A.
By: /S/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Managing Director
BANCA NAZIONALE DEL LAVARO S.p.A
NEW YORK BRANCH
By: /S/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
By: /S/Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President
THE BANK OF NEW YORK
By: /S/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
BANK OF TOYKO-MITSUBISHI TRUST COMPANY
By: /S/Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
S-3
CIBC INC.
By: /S/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Executive Director
By:
Name:
Title:
XX XXXXXX XXXXX BANK
By: /S/Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /S/Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /S/Marwan Isbaih
Name: Marwan Isbaih
Title: Director
MELLON BANK, N.A.
By: /S/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /S/Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
S-4
PNC BANK, NATIONAL ASSOCIATION
By: /S/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF OKLAHOMA
By: /S/Xxxxxx X. Been
Name: Xxxxxx X. Been
Title: Vice President
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By: /S/Xxxxxxxxxxx X. XxXxxxxxxx
Name: Xxxxxxxxxxx X. XxXxxxxxxx
Title: Vice President
CANADIAN AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /S/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Executive Director
By:
Name:
Title:
CANADIAN LENDERS: CANADIAN IMPERIAL BANK OF COMMERCE
By: /S/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Executive Director
By:
Name:
Title:
BANK OF AMERICA CANADA
By: /S/Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Vice President
S-5
MELLON BANK, N.A. - CANADA BRANCH
By: /S/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
S-6
Schedule 1.1I
CONSOLIDATED EBITDA FOR THE WILLOW ACQUISITION
- Continued due-diligence may lead to an adjustment of the
allocation of EBITDA between the purchaser of the Dogwood Assets
and Airgas
- However, unless these adjustments are material and are
agreed to between the Borrowers and the U.S. Agent, acting
reasonably, the schedule of pro forma EBITDA from the Willow
Acquisition shall be as follows:
12/31/00 3/31/01 6/30/01 9/30/01
----------- ----------- ----------- -----------
Without $10,177,500 $10,177,500 $10,177,500 $10,177,500
Dogwood
Assets
With $10,925,000 $10,925,000 $10,925,000 $10,925,000
Dogwood
Assets
Schedule 2.1(b)(i)
FORM OF NOTICE OF U.S. BORROWING
TO: Bank of America, N.A., as U.S. Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Tenth Amended and Restated Credit
Agreement dated as of July 30, 2001 among
Airgas, Inc. ("Airgas"), Airgas Canada Inc.
and Red-D-Arc Limited (each a "Canadian
Borrower"), the Guarantors party thereto,
Bank of America, N.A., as U.S. Agent,
Canadian Imperial Bank of Commerce, as
Canadian Agent and the Lenders party thereto
(as amended or modified from time to time,
the "Credit Agreement").
DATE: _____________, 200__
_________________________________________________________________________
1. This Notice of Borrowing is made pursuant to the terms of
the Credit Agreement. All capitalized terms used herein
unless otherwise defined shall have the meanings set forth
in the Credit Agreement.
2. Please be advised that Airgas is requesting a [Revolving
U.S. Loan][U.S. Term Loan] in the amount of $__________ be
funded on ____________, 200__ to accrue interest at the
interest rate set forth in paragraph 3 below. Subsequent to
the funding of the requested [Revolving U.S. Loan][U.S. Term
Loan], the aggregate amount of outstanding [Revolving U.S.
Loan][U.S. Term Loans] will be $___________.
3. The interest rate option applicable to the requested
[Revolving U.S. Loan][U.S. Term Loan] set forth in paragraph
2 above shall be:
a. ________ the U.S. Base Rate plus the Applicable
Percentage for Base Rate Loans; or
b. ________ the Eurodollar Rate plus the Applicable
Percentage for Eurodollar Loans for an Interest Period
of:
________ one month
________ two months
________ three months
________ six months
________ twelve months
4. The representations and warranties made in Section 6 of the
Credit Agreement are true and correct in all material
respects at and as if made on the date hereof (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.
5. As of the date hereof, no Default or Event of Default has
occurred and is continuing or would be caused by the
requested Loan.
6. The incurrence by Airgas of the Indebtedness evidenced by
such Loan is permitted by the Subordinated Note Indenture
and constitutes "Senior Debt" (as defined in the
Subordinated Note Indenture).
7. Immediately after giving effect to the making of the
requested Revolving U.S. Loan, the sum of the aggregate
principal amount of outstanding Revolving U.S. 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 Revolving U.S. Committed
Amount.
By:
Title:
Schedule 2.5
U.S. TERM LOAN COMMITMENT AGREEMENT
Reference is made to the Tenth Amended and Restated Credit
Agreement dated as of July 30, 2001 (as amended, modified,
extended or restated from time to time, the "Credit Agreement")
by and among Airgas, Inc., a Delaware corporation ("Airgas"), the
other Credit Parties party thereto, the Lenders party thereto,
the Guarantors party thereto, Bank of America, N.A., as U.S.
Agent and Canadian Imperial Bank of Commerce, as Canadian Agent.
All of the defined terms in the Credit Agreement are incorporated
herein by reference.
1. Effective as of the Effective Date (defined below), the
undersigned Lender hereby confirms its U.S. Term Loan Commitment,
in an aggregate principal amount of up to the amount specified
below to (i) make U.S. Term Loans in accordance with the
provisions of Section 2.5(a). If the undersigned Lender is
already a Lender under the Credit Agreement, such Lender
acknowledges and agrees that such U.S. Term Loan Commitment is in
addition to any existing Commitment of such Lender under the
Credit Agreement. If the undersigned Lender is not already a
Lender under the Credit Agreement, such Lender hereby
acknowledges, agrees and confirms that, by its execution of this
agreement, such Lender will, as of the Effective Date, be a party
to the Credit Agreement and be bound by the provisions of the
Credit Agreement and, to the extent of its U.S. Term Loan
Commitment, have the rights and obligations of a Lender
thereunder.
2. This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Effective Date _____________________
Amount of U.S. Term Loan Commitment _____________________
The terms set forth above
are hereby agreed to this ____ day of ____________, 200_:
[Lender]
By:___________________________
Title:
CONSENTED TO:
BANK OF AMERICA, N.A.,
as U.S. Agent
By:____________________________
Title:
Schedule 11.3
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of _______________,
200_ is entered into between ________________ ("Assignor") and
____________________ ("Assignee").
Reference is made to the Tenth Amended and Restated Credit
Agreement dated as of July 30, 2001, as amended and modified from
time to time thereafter (the "Credit Agreement") among Airgas,
Inc., the Canadian Borrowers, the Lenders party thereto, the
Guarantors party thereto, Bank of America, N.A., as U.S. Agent
and Canadian Imperial Bank of Commerce, as Canadian Agent. Terms
defined in the Credit Agreement are used herein with the same
meanings.
1. The Assignor hereby sells and assigns, without recourse,
to the Assignee, and the Assignee hereby purchases and assumes
from the Assignor, effective as of the Effective Date set forth
below, the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth below in
the Commitments and outstanding Loans of the Assignor on the
effective date of the assignment designated below (the "Effective
Date"), together with unpaid Fees accrued on the assigned
Commitments to the Effective Date and unpaid interest accrued on
the assigned Loans to the Effective Date. Each of the Assignor
and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in [Section
2.5(g)] [Section 11.3(b)] of the Credit Agreement, a copy of
which has been received by the Assignee. From and after the
Effective Date (i) the Assignee, if it is not already a Lender
under the Credit Agreement, shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the
interests purchased and assumed by the Assignee under this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent of
the interests sold and assigned by the Assignor under this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
2. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the state of New York.
3. Terms of Assignment
(a)Date of Assignment:
(b)Legal Name of Assignor:
(c)Legal Name of Assignee:
(d)Effective Date of Assignment:
(e)Assigned Interest:
Total Amount of Percentage
Commitment/ Commitment/ Assigned
Loans for all Loans of Total
Facility Assigned Lenders Assigned Commitment/Loans
-------------------------- ------------- ----------- ----------------
Revolving U.S. Commitment $____________ $__________
Revolving U.S. Loans $____________ $__________ __________%
U.S. Term Loan $____________ $__________ __________%
Revolving Canadian $____________ $__________ __________%
Commitment $____________ $__________
Revolving Canadian Loans
4. This Assignment and Acceptance shall be effective only upon
consent of U.S. Agent [Airgas] [and the Canadian Agent], if
applicable, delivery to the [U.S./Canadian] Agent of this
Assignment and Acceptance together with the transfer fee payable
pursuant to [Section 2.5(g)] [Section 11.3(b)] in connection
herewith.
5. This Assignment and Acceptance may be executed in any number
of counterparts, each of which where 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 Assignment and Acceptance to produce or account for more
than one such counterpart.
The terms set forth above
are hereby agreed to:
____________________, as Assignor
By:_____________________________________
Title:__________________________________
_____________________, as Assignee
By:_____________________________________
Title:__________________________________
CONSENTED TO:
BANK OF AMERICA, N.A.,
as U.S. Agent
By:____________________________________
Title:_________________________________
AIRGAS, INC.
By:____________________________________
Title:_________________________________
