<PAGE>
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
<PAGE>
TABLE OF CONTENTS
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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
</TABLE>
i
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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
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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
</TABLE>
iii
<PAGE>
SCHEDULES AND EXHIBITS
<TABLE>
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Schedules
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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
</TABLE>
<TABLE>
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Exhibits
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<C>
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
</TABLE>
iv
<PAGE>
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
<PAGE>
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
<PAGE>
"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:
<TABLE>
<CAPTION>
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
-------- ---------
----------
--------
---------
----------
------------------
------------------ -----------
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<C>
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
</TABLE>
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
<PAGE>
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
<PAGE>
"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
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
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)
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<PAGE>
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
<PAGE>
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.
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<PAGE>
"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
<PAGE>
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
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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
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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
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<PAGE>
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.
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<PAGE>
"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.
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<PAGE>
"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
<PAGE>
(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
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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
<PAGE>
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
<PAGE>
"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
<PAGE>
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
<PAGE>
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
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
(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
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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
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<PAGE>
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
<PAGE>
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.
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<PAGE>
(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
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<PAGE>
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.
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<PAGE>
(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
<PAGE>
(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
<PAGE>
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
<PAGE>
(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
<PAGE>
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:
<TABLE>
<CAPTION>
PRINCIPAL AMORTIZATION
PAYMENT DUE ON THE
PAYMENT
DATES
CORRESPONDING PAYMENT DATE
------------------------
----------------------------
<S>
<C>
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
</TABLE>
(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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
