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<PAGE>
EXHIBIT 4
Note: Pursuant to a request submitted to the Securities and
Exchange Commission
for confidential treatment, a portion of section 1.1 of the
Twelfth Amended and
Restated Credit Agreement was omitted. The omitted information
is marked with
bolded brackets and double asterisks [**]. The omitted
information has been
filed separately with the Securities and Exchange
Commission.
TWELFTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 25, 2006
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.,
as Syndication Agent,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
and
PNC BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
and
BANC OF AMERICA SECURITIES LLC
and
J.P. MORGAN SECURITIES INC.,
as Joint Lead Arrangers and Co-Book Managers,
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
DEFINITIONS.....................................................
1
1.1
Definitions......................................................
1
1.2 Computation of Time
Periods...................................... 26
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............................. 38
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.................................................. 47
3.7 Certain
Waivers.................................................. 47
ARTICLE IV OTHER PROVISIONS RELATING TO CREDIT
FACILITIES................. 47
4.1 Default
Rate..................................................... 47
4.2 Extension and
Conversion......................................... 48
4.3
Prepayments......................................................
49
4.4 Termination and Reduction of Commitments; Increase of
Commitments......................................................
50
4.5
Fees.............................................................
53
4.6 Capital
Adequacy................................................. 55
4.7 Inability To Determine Interest
Rate............................. 56
4.8
Illegality.......................................................
56
4.9 Requirements of
Law.............................................. 57
4.10
Taxes............................................................
57
4.11
Indemnity........................................................
59
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..................................................... 67
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....................................... 68
6.11
Taxes............................................................
68
6.12
ERISA............................................................
68
6.13 Governmental Regulations,
Etc.................................... 69
</TABLE>
i
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<TABLE>
<S> <C>
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................................. 80
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.............................................. 81
9.1 Events of
Default................................................ 81
9.2 Acceleration;
Remedies........................................... 84
ARTICLE X AGENCY
PROVISIONS............................................... 85
10.1 Appointment and
Authority........................................ 85
10.2 Rights as a
Lender............................................... 85
10.3 Exculpatory
Provisions........................................... 86
10.4 Reliance by the
Agents........................................... 86
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.............................. 88
10.10 Collateral and Guaranty
Matters.................................. 89
ARTICLE XI
MISCELLANEOUS..................................................
89
11.1 Notices and Other Communications; Facsimile
Copies............... 89
11.2 Right of
Set-Off................................................. 91
11.3 Benefit of
Agreement............................................. 91
</TABLE>
ii
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<TABLE>
<S> <C>
11.4 No Waiver; Remedies
Cumulative................................... 94
11.5 Payment of Expenses,
Etc......................................... 94
11.6 Amendments, Waivers and
Consents................................. 95
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..................................................
99
11.15
Conflict.........................................................
100
11.16 USA PATRIOT Act
Notice........................................... 100
11.17 Replacement of
Lenders........................................... 100
11.18 Designation as Senior
Debt....................................... 101
11.19 No Advisory or Fiduciary
Responsibility.......................... 101
ARTICLE XII
GUARANTY......................................................
102
12.1 The
Guaranty.....................................................
102
12.2 Obligations
Unconditional........................................ 102
12.3
Reinstatement....................................................
104
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; Subsequent
Collateralization
Date........................................... 104
</TABLE>
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<PAGE>
SCHEDULES AND EXHIBITS
Schedules
Schedule 1.1A Excluded Asset Dispositions
Schedule 1.1B Existing Canadian Letters of Credit
Schedule 1.1C Existing U.S. Letters of Credit
Schedule 1.1D National Welder Liens
Schedule 1.1E Liens
Schedule 2.1(a) Lenders and Commitments
Schedule 5.1(d) Legal Opinions
Schedule 6.14 Subsidiaries
Schedule 6.19 Perfection Information
Schedule 8.1 Indebtedness
Schedule 8.5 Investments
Schedule 11.1 Certain Notices
Exhibits
Exhibit 2.1(b)(i) Form of Notice of U.S. Borrowing
Exhibit 3.1(b)(i) Form of Notice of Canadian Borrowing
Exhibit 4.2 Form of Notice of Extension/Conversion
Exhibit 4.4 Form of New Commitment Agreement
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment and Assumption
iv
<PAGE>
TWELFTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS TWELFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
July 25,
2006 (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").
WITNESSETH
WHEREAS, Airgas, the Canadian Borrowers and the Guarantors are
parties to a
Eleventh Amended and Restated Credit Agreement dated as of
January 14, 2005 (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 $966,000,000, (ii) U.S. Term Lenders agree to extend credit
to Airgas in an
aggregate principal amount of up to $600,000,000 and (iii)
Canadian Lenders
agree to extend credit to the Canadian Borrowers in an aggregate
principal
amount of up to C$40,000,000, 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 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.
1
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"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) and/or (iii) to
(A) make
Canadian Revolving Loans in accordance with the provisions of
Section 3.1(a),
(B) purchase participation interests in Canadian Letters of
Credit in accordance
with the provisions of Section 3.3(c) and (C) accept Bankers'
Acceptances in
accordance with the provisions of Section 3.4(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. Revolving
Commitment
Unused Fee, the U.S. Term Commitment Unused Fee, the Canadian
Unused Fee, the
issuance fee for standby U.S. Letters of Credit, the drawing fee
for trade U.S.
Letters of Credit, the issuance fee for standby Canadian Letters
of Credit, the
drawing fee for trade Canadian Letters of Credit, the
appropriate applicable
percentage, corresponding to the higher of the long term credit
ratings of
Airgas by S&P and Moody's in effect as of such date:
Applicable Percentages
U.S. Revolving Loans
and U.S. Term Loans
<TABLE>
<CAPTION>
U.S. Revolving
U.S. Revolving Loans Commitment
and U.S. Term Loans Issuance Fees Drawing Fees for Unused
Fee,
-------------------- for standby U.S. trade U.S. U.S. Term
U.S. Letters of Letters of Credit Commitment
Long term Base Canadian Credit and and trade Unused Fee and
Pricing credit Eurodollar Rate Base Rate Bankers' standby
Canadian Canadian Letters Canadian
Level rating Loans Loans Loans Acceptances Letters of Credit of
Credit Unused Fee
------- ---------------- ---------- ----- --------- -----------
----------------- ----------------- --------------
<S> <C> <C> <C> <C> <C>
<C> <C> <C>
I > or = BBB/ 0.500% 0.00% 0.00% 0.500% 0.500% 0.2500%
0.100%
> or = Baa2
II BBB-/Baa3 0.625% 0.00% 0.00% 0.625% 0.625% 0.3125% 0.125%
III BB+/Ba1 0.750% 0.00% 0.00% 0.750% 0.750% 0.3750% 0.175%
IV BB/Ba2 1.250% 0.250% 0.250% 1.250% 1.250% 0.6250% 0.275%
V < or = BB- or 1.750% 0.750% 0.750% 1.750% 1.750% 0.8750%
0.375%
unrated by
S&P / < or = Ba3
or unrated
by Moody's
</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 (or if Airgas
is unrated by
either S&P or Moody's), the Applicable Percentage for such
day shall be the
appropriate applicable percentage corresponding to the Pricing
Level which is
one Pricing Level lower (with Pricing Level I begin the highest
and Pricing
Level V being the lowest) than the Pricing Level corresponding
to the higher 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.
3
<PAGE>
"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 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
4
<PAGE>
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.
"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
increase in the
Canadian Revolving Committed Amount pursuant to Section 4.4(b)
or 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.
5
<PAGE>
"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.
"Canadian Issuing Lender" means BNS.
"Canadian Lenders" means (i) those Lenders that have Canadian
Revolving
Commitments and are identified as Lenders on the signature pages
attached hereto
and (ii) any Person which becomes a Canadian Lender by executing
a New
Commitment Agreement pursuant to Section 4.4(b), 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
6
<PAGE>
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 Committed Amount" shall have the meaning
assigned to
such term in Section 3.1(a).
"Canadian Revolving Loans" shall have the meaning assigned to
such term in
Section 3.1(a).
"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 (a) in the case of a corporation, capital
stock, (b)
in the case of an association or business entity, any and all
shares, interests,
participations, rights or other equivalents (however designated)
of capital
stock, (c) in the case of a partnership, partnership interests
(whether general
or limited), (d) in the case of a limited liability company,
membership
interests and (e) 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
7
<PAGE>
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 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 July 25, 2006.
"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 based on "Pricing Level I" or "Pricing
Level II" 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
8
<PAGE>
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 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 Project OT Acquisition to the extent such charges were
incurred not
later than March 31, 2008 and not exceeding $20,000,000 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.
"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) to the
extent not
included in the amount determined pursuant to clause (i) above
and to the extent
paid in cash to a
9
<PAGE>
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 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
10
<PAGE>
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.
"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.
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<PAGE>
"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 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, (xii) any Asset Disposition required or
advisable by law,
regulation or Governmental Authority as part of a
12
<PAGE>
Permitted Acquisition and (xiii) 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 (xiii) 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 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
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<PAGE>
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
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
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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 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
15
<PAGE>
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.
"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.
"Maximum Increase Amount" means, as of any date of
determination, an amount
equal to the lesser of (a) the aggregate principal repayments
made by Airgas on
the U.S. Term Loan prior to such date and (b) $200,000,000.
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<PAGE>
"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.
"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).
17
<PAGE>
"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);
(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;
18
<PAGE>
(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 (a) 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
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) 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 (ii) the
documentation for such
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<PAGE>
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 and (b) any other Securitization
Transaction on
substantially similar terms as the transaction described in the
forgoing clause
(a).
"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
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
20
<PAGE>
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.
"Project OT Acquisition" means the acquisition, through a
purchase of
stock, assets or otherwise, by Airgas of the type of [**] assets
or business
located in the United States or Canada as generally identified
by Airgas to the
Lenders in the Confidential Offering Memorandum dated April,
2006.
[**] - Confidential treatment requested.
"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 a
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 a 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.
"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).
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<PAGE>
"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 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
22
<PAGE>
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 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.
23
<PAGE>
"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 July [__], 2011.
"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
March 30, 2005, 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.
"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.
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<PAGE>
"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 and
consented to by such U.S. Revolving Lender (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.
"U.S. Revolving Commitment Unused Fee" shall have the meaning
assigned to
such term in Section 4.5(a)(i)(A).
"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.
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<PAGE>
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 Commitment Unused Fee" shall have the meaning
assigned to such
term in Section 4.5(a)(i)(B).
"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).
"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 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.
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<PAGE>
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
of March 31,
2006); 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.
(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 NINE
HUNDRED
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<PAGE>
SIXTY-THREE MILLION NINE HUNDRED THOUSAND U.S. DOLLARS
($963,900,000) (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
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.
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(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 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.
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<PAGE>
(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 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.
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Revolving Committed Amount or (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.
(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
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<PAGE>
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
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.
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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 U.S. Issuing Lender 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.
(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.
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<PAGE>
(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 any Indemnitee 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 such 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.
(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.
34
<PAGE>
(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 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
35
<PAGE>
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 (if not made prior thereto) 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:
(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.
(ii) 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).
36
<PAGE>
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 in one
or more drawings during the period from the Closing Date until
the
Termination Date term loans in U.S. Dollars (the "U.S. Term
Loans");
provided, however, (i) with regard to the U.S. Term Lenders
collectively,
the aggregate principal amount of all U.S. Term Loans shall not
exceed SIX
HUNDRED MILLION U.S. DOLLARS ($600,000,000) (as such aggregate
maximum
amount may be increased or reduced from time to time as provided
in Section
4.4, the "U.S. Term Loan Committed Amount") and (ii) with regard
to each
U.S. Term Lender individually, such U.S. Term Lender's
outstanding U.S.
Term Loans shall not exceed such U.S. Term Lender's U.S. Term
Loan
Commitment Percentage of the U.S. Term Committed Amount. U.S.
Term Loans
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 Loans 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 Business Day of the requested borrowing in
the case
of U.S. Base Rate Loans, or on the third Business Day prior to
the Business
Day of the requested borrowing in the case of 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 Business Day of the
requested
borrowing, then the full amount of the requested U.S. Term Loan
shall be
disbursed on the Business Day of the requested borrowing as a
U.S. Base
Rate Loan. Each U.S. Term Lender shall make its U.S. Term Loan
Percentage
of each 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
Business Day of
the requested borrowing 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 a 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 Committed
Amount, if
less).
(d) Repayment of U.S. Term Loans. Airgas promises to pay the
outstanding principal amount of the U.S. Term Loans in
consecutive
installments commencing on the earlier of (i) March 31, 2007 if,
prior to
such date, any portion of the U.S. Term Loan Commitments is
funded to
finance the Project OT Acquisition or (ii) otherwise, June 30,
2007 (such
date hereinafter referred to as the "Amortization Commencement
Date") 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:
37
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL AMORTIZATION
PAYMENT DUE ON THE
PAYMENT DATES CORRESPONDING PAYMENT DATE
------------- --------------------------
<S> <C>
Amortization Commencement Date 3.75%
and the last day of each of
the three subsequent fiscal
quarters
the last day of each of the 3.75%
four subsequent fiscal quarters
the last day of each of the 3.75%
four subsequent fiscal quarters
the last day of each of the 3.75%
two subsequent fiscal quarters
the last day of each of the 11.875%
three subsequent fiscal
quarters
either: (i) if the most recent Unpaid Balance
scheduled amortization payment
date occurred on March 31,
2011, June 30, 2011 or (ii)
otherwise, the Termination Date
</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 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
38
<PAGE>
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 FORTY MILLION CANADIAN DOLLARS (C$40,000,000) (as such
aggregate maximum
amount may be increased or 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).
(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.
39
<PAGE>
(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 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 (if not made prior thereto) 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
40
<PAGE>
on which Canadian Revolving Loans are otherwise permitted to be
made hereunder
or (VI) any termination of the Commitments relating thereto
immediately prior to
or contemporaneously with such borrowing.
(c) Interest on Canadian Swingline Loans.
(i) Interest Rate. Subject to the provisions of Section 4.1,
each
Canadian Swingline Loan shall bear interest at a per annum rate
(computed
on the basis of the actual number of days elapsed over a year of
365 days)
equal to the Canadian Base Rate plus the Applicable Percentage;
and
(ii) Payment of Interest. With respect to each Canadian
Swingline Loan
taken by a Canadian Borrower, such Canadian Borrower hereby
promises to pay
all interest on the outstanding principal amount of such
Canadian Swingline
Loan in arrears on each applicable Interest Payment Date (or at
such other
times as may be specified herein).
3.3 CANADIAN LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and of
the
Canadian LOC Documents, if any, and any other terms and
conditions which the
Canadian Issuing Lender may reasonably require, and in reliance
upon the
agreements of the Credit Parties and Canadian Lenders set forth
herein, the
Canadian Lenders will participate in the issuance by the
Canadian Issuing Lender
from time to time of such Canadian Letters of Credit in Canadian
Dollars from
the Closing Date until the Termination Date as a Canadian
Borrower may request,
in a form acceptable to the Canadian Issuing Lender; provided,
however, that (i)
the Canadian LOC Obligations outstanding shall not at any time
exceed FORTY
MILLION CANADIAN DOLLARS (C$40,000,000) (the "Canadian LOC
Committed Amount")
and (ii) the sum of the aggregate principal amount of
outstanding Canadian
Revolving Loans plus the aggregate principal amount of
outstanding Canadian
Swingline Loans plus Canadian LOC Obligations outstanding plus
BA Outstandings
shall not at any time exceed the aggregate Canadian Revolving
Committed Amount.
No Canadian Letter of Credit shall (x) have an original expiry
date more than
one year from the date of issuance (provided that such Canadian
Letter of Credit
may contain customary "evergreen" provisions pursuant to which
the expiry date
is automatically extended by a specific time period unless the
Canadian Issuing
Lender gives notice of non-renewal to the beneficiary of such
Canadian Letter of
Credit at least a specified time period prior to the expiry date
then in
effect), or (y) as originally issued or as extended, have an
expiry date
extending beyond the Termination Date. The Canadian Issuing
Lender shall be
under no obligation to issue any Canadian Letter of Credit if
the issuance of
such Canadian Letter of Credit would violate any applicable
Requirement of Law
or any policy of the Canadian Issuing Lender. Each Canadian
Letter of Credit
shall comply with the related Canadian LOC Documents. The
issuance date of each
Canadian Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a
Canadian Letter
of Credit shall be submitted by the applicable Canadian Borrower
(by its duly
authorized officers or representatives) to the Canadian Issuing
Lender with a
copy to the Canadian Agent at least three (3) Business Days
prior to the
requested date of issuance. The Canadian Issuing Lender will, at
least quarterly
and more frequently upon request, disseminate to each of the
Canadian Lenders a
detailed report specifying the Canadian Letters of Credit which
are then issued
and outstanding and any activity with respect thereto which may
have occurred
since the date of the prior report, and including therein, among
other things,
the beneficiary, the face amount and expiry date as well as any
payments or
expirations which may have occurred.
(c) Participation. Each Canadian Lender, upon issuance of a
Canadian Letter
of Credit (or, in the case of each Existing Canadian Letter of
Credit, on the
Closing Date), shall be deemed to have purchased without
recourse a risk
participation from the Canadian Issuing Lender in such Canadian
Letter of Credit
and the obligations arising thereunder, in each case in an
amount equal to its
pro rata share of the obligations under such Canadian Letter of
Credit (based on
the respective Canadian Commitment Percentages of the
41
<PAGE>
Canadian Lenders) and shall absolutely, unconditionally and
irrevocably assume,
as primary obligor and not as surety, and be obligated to pay to
the Canadian
Issuing Lender therefor and discharge when due, its pro rata
share of the
obligations arising under such Canadian Letter of Credit.
Without limiting the
scope and nature of each Canadian Lender's participation in any
Canadian Letter
of Credit, to the extent that the Canadian Issuing Lender has
not been
reimbursed as required hereunder or under any such Canadian
Letter of Credit,
each such Canadian Lender shall pay to the Canadian Issuing
Lender its pro rata
share of such unreimbursed drawing pursuant to the provisions of
subsection (d)
hereof. The obligation of each Canadian Lender to so reimburse
the Canadian
Issuing Lender shall be absolute and unconditional and shall not
be affected by
the occurrence of a Default, an Event of Default or any other
occurrence or
event. Any such reimbursement shall not relieve or otherwise
impair the
obligation of each Canadian Borrower to reimburse the Canadian
Issuing Lender
under any Canadian Letter of Credit issued for the account of
such Canadian
Borrower, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Canadian Letter of
Credit, the Canadian Issuing Lender will promptly notify the
applicable Canadian
Borrower and the Canadian Agent. Unless the applicable Canadian
Borrower shall
immediately notify the Canadian Issuing Lender that such
Canadian Borro
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