-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FlXteOyYCAB8I7B+tCSDZTWbhhRBjlUTDUcRprytZDceD4z1PKrAgh2Ulg0P/hqK 69d58fcVZslRonGQTgYEkw== 0000804212-95-000020.txt : 19951108 0000804212-95-000020.hdr.sgml : 19951108 ACCESSION NUMBER: 0000804212-95-000020 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19950930 FILED AS OF DATE: 19951107 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRGAS INC CENTRAL INDEX KEY: 0000804212 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-CHEMICALS & ALLIED PRODUCTS [5160] IRS NUMBER: 560732648 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-09344 FILM NUMBER: 95587891 BUSINESS ADDRESS: STREET 1: 100 MATSONFORD RD STE 550 STREET 2: 5 RADNOR CORPORATE CENTER CITY: RADNOR STATE: PA ZIP: 19087 BUSINESS PHONE: 2156875253 MAIL ADDRESS: STREET 1: 5 RADNOR CORPORATE CENTER, STE 550 STREET 2: 100 MATSONFORD ROAD CITY: RADNOR STATE: PA ZIP: 19087 10-Q 1 FORM 10-Q 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For Quarter Ended: September 30, 1995 _____________________________ Commission file number: 1-9344 _____________________________ AIRGAS, INC. ______________________________________________________________________________ (Exact name of Registrant as specified in its charter) Delaware 56-0732648 _______________________________ __________________ (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 5 Radnor Corporate Center, Suite 550 100 Matsonford Road Radnor, PA 19087-4579 _______________________________________ ________________ (Address of principal executive offices) (ZIP code) (610) 687-5253 __________________________________________________ (Registrant's telephone number, including area code) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ______ ______ Common Stock outstanding at November 1, 1995: 31,506,000 shares 2 AIRGAS, INC. FORM 10-Q September 30, 1995 INDEX PART I - FINANCIAL INFORMATION ______________________________ Consolidated Balance Sheets as of September 30, 1995 and March 31,1995.....................................................3 Consolidated Statements of Earnings for the Three Months Ended September 30, 1995 and 1994................5 Consolidated Statements of Earnings for the Six Months Ended September 30, 1995 and 1994..................6 Consolidated Statements of Cash Flows for the Six Months Ended September 30, 1995 and 1994..................7 Notes to Consolidated Financial Statements.................................8 Management's Discussion and Analysis of Financial Condition and Results of Operations..................................12 PART II - OTHER INFORMATION ___________________________ Submission of Matters to a Vote of Security Holders.......................19 Exhibits and Reports on Form 8-K..........................................20 Signatures................................................................21 3 PART I. FINANCIAL INFORMATION Item 1. Consolidated Financial Statements. AIRGAS, INC. CONSOLIDATED BALANCE SHEETS (In thousands)
September 30, March 31, 1995 1995 (Unaudited) _____________ ________ ASSETS Current Assets Trade receivables, less allowance for doubtful accounts of $3,647 at September 30, 1995 and $4,161 at March 31, 1995 $103,412 $ 93,423 Inventories 74,837 65,947 Prepaid expenses and other current assets 15,143 10,467 _______ _______ Total current assets 193,392 169,837 _______ _______ Plant and equipment, at cost 516,497 464,983 Less accumulated depreciation and amortization (132,312) (118,715) _______ _______ Plant and equipment, net 384,185 346,268 Other non-current assets 49,810 41,388 Goodwill, net of accumulated amortization of $17,066 at September 30, 1995 and $15,094 at March 31, 1995 109,717 88,144 _______ _______ Total assets $737,104 $645,637 ======= ======= See accompanying notes to consolidated financial statements.
4 AIRGAS, INC. CONSOLIDATED BALANCE SHEETS (CONTINUED) (In thousands, except per share amounts)
September 30, March 31, 1995 1995 (Unaudited) ___________ ________ LIABILITIES AND STOCKHOLDERS' EQUITY ____________________________________ Current Liabilities Current portion of long-term debt $ 11,436 $ 11,780 Accounts payable, trade 39,530 43,782 Accrued expenses and other current liabilities 60,448 60,191 _______ _______ Total current liabilities 111,414 115,753 _______ _______ Long-term debt 327,397 259,970 Deferred income taxes 73,816 67,540 Other non-current liabilities 14,696 11,116 Minority interest in subsidiaries 1,427 1,606 Stockholders' equity Common stock $.01 par value, 200,000 shares authorized, 32,440 and 31,501 shares issued at September 30, 1995 and March 31, 1995, respectively 324 315 Capital in excess of par value 77,411 62,135 Retained earnings 152,429 133,640 Cumulative translation adjustment (301) (469) Treasury stock, 883 and 236 common shares at cost at September 30, 1995 and March 31, 1995, respectively (21,509) (5,969) _______ _______ Total stockholders' equity 208,354 189,652 _______ _______ Total liabilities and stockholders' equity $737,104 $ 645,637 ======= ======= See accompanying notes to consolidated financial statements.
5 AIRGAS, INC. CONSOLIDATED STATEMENTS OF EARNINGS (Unaudited) (In thousands, except per share amounts)
Three Months Ended Three Months Ended September 30, 1995 September 30, 1994 __________________ __________________ Net sales: Distribution $190,456 $156,925 Manufacturing 8,574 8,061 _______ _______ Total net sales 199,030 164,986 _______ _______ Costs and expenses: Cost of products sold (excluding depreciation and amortization) Distribution 93,424 77,151 Manufacturing 5,293 5,144 Selling, distribution and administrative expenses 66,997 56,624 Depreciation and amortization 11,172 8,952 _______ _______ Total costs and expenses 176,886 147,871 _______ _______ Operating income: Distribution 20,260 15,499 Manufacturing 1,884 1,616 _______ _______ 22,144 17,115 Interest expense, net (5,867) (3,921) Other income, net 155 90 Minority interest (174) (127) _______ _______ Earnings before income taxes 16,258 13,157 Income taxes 6,923 5,697 _______ _______ Net earnings $ 9,335 $ 7,460 ======= ======= Earnings per share $ .29 $ .23 ======= ======= Weighted average shares 32,676 32,989 ======= ======= See accompanying notes to consolidated financial statements.
6 AIRGAS, INC. CONSOLIDATED STATEMENTS OF EARNINGS (Unaudited) (In thousands, except per share amounts)
Six Months Ended Six Months Ended September 30, 1995 September 30, 1994 __________________ __________________ Net sales: Distribution $376,090 $308,437 Manufacturing 17,212 16,011 _______ _______ Total net sales 393,302 324,448 _______ _______ Costs and expenses: Cost of products sold (excluding depreciation and amortization) Distribution 184,345 152,077 Manufacturing 11,029 10,268 Selling, distribution and administrative expenses 132,134 111,766 Depreciation and amortization 21,613 17,521 _______ _______ Total costs and expenses 349,121 291,632 _______ _______ Operating income: Distribution 40,739 29,766 Manufacturing 3,442 3,050 _______ _______ 44,181 32,816 Interest expense, net (11,455) (7,652) Other income, net 366 220 Minority interest (365) (253) _______ _______ Earnings before income taxes 32,727 25,131 Income taxes 13,938 10,882 _______ _______ Net earnings $ 18,789 $ 14,249 ======= ======= Earnings per share $ .58 $ .43 ======= ======= Weighted average shares 32,606 32,922 ======= ======= See accompanying notes to consolidated financial statements.
7 AIRGAS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) (In thousands)
Six Months Ended Six Months Ended September 30, 1995 September 30, 1994 __________________ __________________ CASH FLOWS FROM OPERATING ACTIVITIES Net earnings $ 18,789 $ 14,249 Adjustments to reconcile net earnings to net cash provided by operating activities: Depreciation and amortization 21,613 17,521 Deferred income taxes 5,924 4,897 Equity in earnings of joint venture (683) (377) Loss on sale of plant and equipment 13 48 Minority interest in earnings 365 253 Stock issued for employee benefit plan 1,603 1,230 Changes in assets and liabilities, excluding effects of business acquisitions: Trade receivables, net (1,777) (1,371) Inventories (632) (2,350) Prepaid expenses and other current assets (3,876) (612) Accounts payable, trade (8,943) (3,908) Accrued expenses and other current liabilities 1,403 (2,995) Other assets and liabilities, net (766) (4,280) _______ _______ Net cash provided by operating activities 33,033 22,305 _______ _______ CASH FLOWS FROM INVESTING ACTIVITIES Capital expenditures (19,414) (18,067) Proceeds from sale of plant and equipment 1,501 1,195 Business acquisitions, net of cash acquired (35,163) (37,549) Other, net (472) 201 _______ _______ Net cash used by investing activities (53,548) (54,220) _______ _______ CASH FLOWS FROM FINANCING ACTIVITIES Proceeds from borrowings 303,305 138,131 Repayment of debt (268,857) (108,857) Repurchase of treasury stock (15,540) 0 Exercise of options and warrants 2,991 818 Net overdraft (1,709) 1,270 Dividend from joint venture 293 550 _______ _______ Net cash provided by financing activities 20,483 31,912 _______ _______ EFFECTS OF DISCONTINUED ACTIVITIES, NET 32 3 _______ _______ CHANGE IN CASH $ -0- $ -0- Cash - beginning of period -0- -0- _______ _______ Cash - end of period $ -0- $ -0- ======= ======= See accompanying notes to consolidated financial statements.
8 AIRGAS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) (1) BASIS OF PRESENTATION _____________________ The consolidated financial statements include the accounts of Airgas, Inc. and its subsidiaries (the "Company"). The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles applicable to interim financial statements. These statements do not include all disclosures required for annual financial statements. These financial statements should be read in conjunction with the more complete disclosures contained in the Company's audited consolidated financial statements for the year ended March 31, 1995. The financial statements reflect, in the opinion of management, all adjustments (normal recurring adjustments) necessary to present fairly the Company's consolidated balance sheets at September 30, 1995 and March 31, 1995; the consolidated statements of earnings for the three and six months ended September 30, 1995 and 1994; and the consolidated statements of cash flows for the six months ended September 30, 1995 and 1994. The interim operating results are not necessarily indicative of the results to be expected for an entire year. (2) ACQUISITIONS ____________ From April 1, 1995 to October 31, 1995, the Company has acquired twenty- three businesses engaged in the distribution of industrial, medical and specialty gases and welding supplies with annual sales of approximately $90 million. The aggregate purchase price, including amounts related to non- competition and confidentiality agreements, amounted to approximately $99 million. Acquisitions have been recorded using the purchase method of accounting, and, accordingly, results of their operations have been included in the Company's consolidated financial statements since the effective dates of the respective acquisitions. 9 AIRGAS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED) (Unaudited) (3) INVENTORIES ___________ Inventories consist of: (In thousands)
September 30, March 31, 1995 1995 ________ ________ Finished goods $74,571 $ 65,693 Raw materials 1,387 1,315 _______ _______ 75,958 67,008 Less reduction to LIFO cost ( 1,121) (1,061) _______ _______ $74,837 $ 65,947 ======= =======
(4) PLANT AND EQUIPMENT ___________________ The major classes of plant and equipment are as follows: (In thousands)
September 30, March 31, 1995 1995 _____________ _________ Land and land improvements $ 18,597 $ 17,571 Building and leasehold improvements 47,627 43,714 Machinery and equipment, including cylinders 418,000 376,284 Transportation equipment 29,585 25,944 Construction in progress 2,688 1,470 _______ _______ $516,497 $464,983 ======= =======
10 AIRGAS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED) (Unaudited) (5) OTHER NON-CURRENT ASSETS _______________________ Other non-current assets include: (In thousands)
September 30, March 31, 1995 1995 _____________ _________ Investment in a joint venture $ 1,987 $ 1,597 Noncompete agreements and other intangible assets, at cost, net of accumulated amortization of $41.6 million at September 30, 1995 and $37.4 million at March 31, 1995 38,435 31,955 Other assets 9,388 7,836 _______ _______ $ 49,810 $ 41,388 ======= =======
(6) ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES ______________________________________________ Accrued expenses and other current liabilities include: (In thousands)
September 30, March 31, 1995 1995 _____________ _________ Cash overdraft $ 9,929 $ 11,638 Insurance payable and related reserves 6,250 6,304 Customer cylinder deposits 6,501 6,242 Other accrued expenses and current liabilities 37,768 36,007 _______ _______ $ 60,448 $ 60,191 ======= =======
11 AIRGAS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED) (Unaudited) (7) EARNINGS PER SHARE __________________ Earnings per share amounts were determined using the treasury stock method. (8) COMMITMENTS AND CONTINGENCIES _____________________________ The Company is involved in various legal proceedings which have arisen in the ordinary course of its business and have not been finally adjudicated. These actions, when ultimately concluded and determined will not, in the opinion of management, have a material adverse effect upon the Company's financial condition, results of operations or liquidity. 12 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FINANCIAL REVIEW ________________ OVERVIEW ________ The Company's financial results for the second quarter ended September 30, 1995 reflect substantial growth compared with the same quarter in the prior year. Net sales of $199.0 million, net earnings of $9.3 million and earnings per share of $.29 represent increases over the prior period of 21%, 25% and 26%, respectively. Net sales increased during the second quarter ended September 30, 1995 over the same period in the prior year primarily due to the acquisition of industrial gas distribution companies and an increase in same-store distribution sales. Same-store sales increased 2% compared to the second quarter last year. July sales were weak due to a sluggish economy and prolonged hot, dry weather throughout most of the country. Sales rebounded during the latter half of August and September. The increase in net earnings was primarily due to an increase in gross profits from higher same-store distribution sales and an increase in gross profit margins and earnings generated by industrial gas distribution businesses acquired since July 1, 1994. After tax cash flow (net earnings plus depreciation, amortization and deferred income taxes) increased 25% to $23.6 million from $18.9 million in the second quarter last year. After tax cash flow is an important measurement of the Company's ability to repay debt through operations and provides the Company with the ability to pursue investment alternatives such as acquisitions and the repurchase of Company stock. RESULTS OF OPERATIONS: THREE MONTHS ENDED SEPTEMBER 30, 1995 COMPARED TO THE THREE MONTHS ENDED SEPTEMBER 30, 1994 _____________________________________ Net sales increased 21% during the quarter ended September 30, 1995 compared to the same quarter in the prior year: (in thousands)
1995 1994 Increase ____ ____ __________ Distribution $190,456 $156,925 $ 33,531 Manufacturing 8,574 8,061 513 _______ _______ _______ $199,030 $164,986 $ 34,044 ======= ======= =======
For the quarter ended September 30, 1995, distribution sales increased approximately $30.6 million resulting from the acquisition of 40 industrial gas distributors since July 1, 1994 and approximately $2.9 million from same-store sales. The Company estimates that had all acquisitions during the quarter ended September 30, 1995 been consummated on July 1, 1995, distribution sales for the second quarter ended September 30, 1995 would have been approximately $3.3 million higher. The increase in same-store sales of approximately 2% is primarily the result of increased volume of gas and rental businesses. Hardgoods same-store sales were flat. The Company estimates same-store sales based on a comparison of current period sales to the prior 13 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) period's sales, adjusted for acquisitions. Future same-store sales growth is dependent on the economy and the Company's ability to expand markets for new and existing products and to increase prices. The Company believes that sales of lower margin hardgoods are adversely impacted during a recession, and conversely, are typically the fastest to rebound during an economic recovery. Sales for the Company's manufacturing operations increased 6.4% during the quarter ended September 30, 1995 compared to the same quarter in the prior year primarily as a result of an increase in the demand for carbon products and nitrous oxide. The increase in distribution gross profit of $17.3 million over 1994, is attributable to increases associated with acquisitions of $14.7 million and same-store gross profit growth of $2.6 million. The majority of the $2.6 million same-store gross profit growth came from volume growth in gas and rent revenues. Gas and rent volumes have increased due to the success of gas marketing programs, principally small bulk and specialty gases. On a same-store basis, distribution gross margins increased an estimated 0.2% compared to 1994. This increase is due to improved hardgoods gross margin from the Company's national purchasing program as well as improved gas and rent gross margins. Lower margin bulk gases have offset some margin improvements. Selling, distribution and administrative expenses as a percentage of sales decreased to 33.7% compared to 34.3% in 1994. The decrease is a result of acquisition consolidation efforts and from controlling certain operating costs, such as business insurance costs through improved claims management and reduced incident rates. Through improved management efforts, the Company has also reduced its bad debt expense. Also, certain operating costs, such as occupancy costs, are relatively fixed and did not increase proportionately with the increase in same-store sales. Partially offsetting these improvements were normal salary increases and slightly higher distribution costs. Operating income increased 29% during the quarter ended September 30, 1995 compared to the same quarter in the prior year: (in thousands)
1995 1994 Increase ____ ____ __________ Distribution $20,260 $15,499 $ 4,761 Manufacturing 1,884 1,616 268 ______ ______ ______ $22,144 $17,115 $ 5,029 ====== ====== ======
Distribution operating income as a percentage of net distribution sales increased to 10.6% during the second quarter ended September 30, 1995 compared to 9.9% in the same quarter in the prior year. The improvement in distribution operating income in 1995 was a result of the increase in gross profits from higher same-store sales, improved gross profit margins and operating income provided by acquisitions. 14 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) Manufacturing operating income increased $268 thousand compared to 1994 due to strong demand for carbon products and nitrous oxide during the second quarter ended September 30, 1995. Interest expense, net, increased $1.9 million compared to 1994 primarily as a result of the increase in average outstanding debt associated with the acquisition of industrial gas distributors since July 1, 1994, interest costs associated with the repurchase of treasury stock and slightly higher interest rates. As discussed in "Liquidity and Capital Resources" below, the Company has hedged floating interest rates under certain borrowings with interest rate swap agreements. Income tax expense represented 42.6% of pre-tax earnings in 1995 compared to 43.3% in 1994. The decrease in the effective income tax rate is primarily due to an increase in pre-tax earnings relative to non-deductible goodwill and other basis differences. 15 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) RESULTS OF OPERATIONS: SIX MONTHS ENDED SEPTEMBER 30, 1995 COMPARED TO THE SIX MONTHS ENDED SEPTEMBER 30, 1994 __________________________ Net sales increased 21% during the six months ended September 30, 1995 compared to the same period in the prior year: (in thousands)
1995 1994 Increase ____ ____ __________ Distribution $376,090 $308,437 $ 67,653 Manufacturing 17,212 16,011 1,201 _______ _______ _______ $393,302 $324,448 $ 68,854 ======= ======= =======
For the six months ended September 30, 1995, distribution sales increased approximately $59.2 million resulting from the acquisition of 45 industrial gas distributors since April 1, 1994 and approximately $8.4 million from same-store sales. The Company estimates that had all acquisitions during the six months ended September 30, 1995 been consummated on April 1, 1995, distribution sales for the six months ended September 30, 1995 would have been approximately $12.0 million higher. The increase in same-store sales of approximately 2% is primarily the result of increased volume of hardgoods sales and increases in gas and rental business. The Company estimates same-store sales based on a comparison of current period sales to the prior period's sales, adjusted for acquisitions. Future same-store sales growth is dependent on the economy and the Company's ability to expand markets for new and existing products and to increase prices. The Company believes that sales of lower margin hardgoods are adversely impacted during a recession, and conversely, are typically the fastest to rebound during an economic recovery. Sales for the Company's manufacturing operations increased 7.5% compared to 1994 primarily as a result of an increase in the volume of lower margin exports and increased demand for carbon products and nitrous oxide. The increase in distribution gross profit of $35.4 million over 1994, is attributable to increases associated with acquisitions of $28.6 million and same-store gross profit growth of $6.8 million. The same-store gross profit growth is attributable to increased hardgoods volumes combined with improved gross margins resulting from the Company's national purchasing arrangements, success of gas marketing programs and improved gas and rental gross margins due to price increases to customers. On a same-store basis, distribution gross margins increased an estimated 0.5% for the six months ended September 30, 1995 compared to the same period in the prior year. 16 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) Selling, distribution and administrative expenses as a percentage of sales decreased to 33.6% compared to 34.4% in 1994. The decrease is a result of acquisition consolidation efforts and from controlling certain operating costs, such as business insurance costs through improved claims management and reduced incident rates. Through improved management efforts, the Company has also reduced its bad debt expense. Also, certain operating costs, such as occupancy costs, are relatively fixed and did not increase proportionately with the increase in same-store sales. Partially offsetting these improvements were normal salary increases and slightly higher distribution costs. Operating income increased 35% during the six months ended September 30, 1995 compared to the same period in the prior year: (in thousands)
1995 1994 Increase ____ ____ __________ Distribution $40,739 $29,766 $10,973 Manufacturing 3,442 3,050 392 ______ ______ ______ $44,181 $32,816 $11,365 ====== ====== ======
Distribution operating income as a percentage of net distribution sales increased to 10.8% compared to 9.7% in 1994. The improvement in distribution operating income in 1995 was a result of the increase in gross profits from higher same-store sales, improved gross profit margins and operating income provided by acquisitions. Manufacturing operating income increased $392 thousand compared to 1994 due to increased demand for carbon products and nitrous oxide, lower production and delivery costs related to the calcium carbide and nitrous oxide business, partially offset by an increase in lower margin sales of carbon products. Interest expense, net, increased $3.8 million compared to 1994 primarily as a result of the increase in average outstanding debt associated with the acquisition of industrial gas distributors since April 1, 1994, interest costs associated with the repurchase of treasury stock and slightly higher interest rates. As discussed in "Liquidity and Capital Resources" below, the Company has hedged floating interest rates under certain borrowings with interest rate swap agreements. Income tax expense represented 42.6% of pre-tax earnings in 1995 compared to 43.3% in 1994. The decrease in the effective income tax rate is primarily due to an increase in pre-tax earnings relative to non-deductible goodwill and other basis differences. 17 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) LIQUIDITY AND CAPITAL RESOURCES _______________________________ The Company has primarily financed its operations, capital expenditures, stock repurchases, and acquisitions with borrowings and funds provided by operating activities. Cash flows from operating activities totaled $33.0 million for the six months ended September 30, 1995. Depreciation and amortization represent $21.6 million of cash flow from operating activities. Deferred income taxes of $5.9 million principally resulted from temporary differences. Working capital components of cash flow increased $13.8 million as a result of an increase in accounts receivable, an increase in prepaid expenses and other current assets and a decrease in trade accounts payable, offset by an increase in accrued expenses and other current liabilities. Days-sales outstanding and days-supply of inventory levels have increased slightly from March 31, 1995 levels, principally due to fiscal 1996 acquisitions. Accounts payable decreased $8.9 million due to payments to vendors. Other current liabilities increased due to accrued interest, income taxes and insurance. Cash used by investing activities totaled $53.5 million for the six months ended September 30, 1995 which was primarily comprised of $19.4 million for capital expenditures and $35.1 million related to acquisitions. The Company's use of cash for capital expenditures was partially attributable to the continued assimilation of certain prior period acquisitions which required the Company to make capital expenditures in areas such as combining cylinder fill plants, improving truck fleets and purchasing cylinders in order to return cylinders rented from third parties. Additionally, capital expenditures include the purchase of cylinders and bulk tanks necessary to facilitate gas sales growth. The Company estimates that its maintenance capital expenditures are approximately 2% of net sales. The Company considers the replacement of existing capital assets to be maintenance capital expenditures. Financing activities provided cash of $20.5 million for the six months ended September 30, 1995 with total debt outstanding increasing by $67.1 million from March 31, 1995. Debt incurred in connection with the acquisition of industrial gas distribution businesses, including seller notes and assumed notes, totalled $67.8 million. In January, 1995, the Company approved a one million share stock repurchase program. Through October 25, 1995, the Company has purchased one million shares at an aggregate cost of $24.3 million. On October 27, 1995, the Company announced an additional one million share stock repurchase program. Through November 3, 1995, the Company has purchased 170,400 shares at an aggregate cost of $4.4 million shares under this program. The purchase of shares is dependent on prevailing market conditions. The Company's primary source of borrowing is an unsecured revolving credit facility with various commercial banks. On August 10, 1995, the Company amended and increased this facility from $250 million to $375 million, and terminated a $100 million bank revolving credit facility which was established in November 1994. At September 30, 1995, the bank facility provided for borrowings up to $375 million, with sub-limits 18 Item 2. AIRGAS, INC. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued) for money market loans, bankers acceptances and the issuance of letters of credit. At September 30, 1995, the Company had approximately $238 million in borrowings under the facility and approximately $45 million committed under letters of credit, resulting in availability under the facility of approximately $92 million. At September 30, 1995, the effective interest rate related to outstanding borrowings under credit lines was approximately 6.29%. The Company's loan agreements contain restrictive covenants which include the maintenance of a minimum equity level, maintenance of certain financial ratios and restrictions on additional borrowings and the level of dividend payments. In managing interest rate exposure, principally under the Company's floating rate revolving credit facilities, the Company has entered into thirteen interest rate swap agreements during the period from June 1992 through March 31, 1995. The swap agreements are with major financial institutions and have a total notional principal amount of $146 million at September 30, 1995. Approximately $126 million of the notional principal amount of the swap agreements require fixed interest payments based on an average effective rate of 6.97% for remaining periods ranging between 2 and 7 years. Two swap agreements require floating rates ($19.5 million notional amount at 6.0% at September 30, 1995). The Company continually monitors its positions and the credit ratings of its counterparties, and does not anticipate nonperformance by the counterparties. The Company will continue to look for appropriate acquisitions and expects to fund such acquisitions, future capital expenditure requirements and commitments related to foreign investments primarily through the use of cash flow from operations, debt, common stock for certain stock acquisition candidates and other available sources. Subsequent to September 30, 1995, through October 31, 1995, the Company has acquired two industrial gas distribution businesses with an aggregate purchase price of approximately $14 million. The Company does not currently pay dividends. OTHER _____ The Financial Accounting Standards Board (FASB) has issued Statement of Financial Accounting Standards No. 121 - "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" effective for fiscal years beginning after December 15, 1995. This statement provides guidance for the recognition of impaiment losses related to long-lived assets such as property, plant and equipment, and certain intangibles and related goodwill for (1) assets to be held and used and (2) assets to be disposed of. Management has not yet determined the impact of the adoption of this statement. The FASB has issued Statement of Financial Accounting Standards No. 123 - - "Accounting for Stock - Based Compensation," effective for fiscal years beginning after December 15, 1995. This statement establishes a fair value based method of accounting for stock-based compensation plans. This statement also applies to all transactions in which an entity acquires goods or services by issuing its equity instruments. Management has not yet determined the impact of the adoption of this statement. 19 AIRGAS, INC. PART II - OTHER INFORMATION Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS On August 7, 1995, the Registrant held its Annual Meeting of Stockholders. The stockholders voted to elect three members to the Board of Directors, to approve an amendment to the Company's Certificate of Incorporation to limit the potential liability of the directors for monetary damages for certain acts or omissions, to approve an amendment to the Company's Amended and Restated 1984 Stock Option Plan, to approve the Company's Management Incentive Plan and to ratify the selection of KPMG Peat Marwick LLP as the Company's independent auditors for the fiscal year ending March 31, 1996. Elected to the Board of Directors were W. Thacher Brown (27,223,602 shares voted for election and 18,614 shares were withheld), Frank B. Foster, III (27,226,350 shares voted for election and 15,866 shares were withheld) and Peter McCausland (27,080,188 shares voted for election and 162,028 shares were withheld). In addition to the board members elected at the Annual Meeting, the following are directors whose terms in office as directors continued after the meeting; James M. Hoak, Jr., John A.H. Shober, Merril L. Stott, Erroll C. Sult, Robert E. Naylor, Jr. and Robert L. Yohe. Also at the Annual Meeting, 25,940,951 shares voted to approve the amendment to the Company's Certificate of Incorporation, with 819,905 shares voting against the amendment and 481,360 shares abstaining. Second, 21,631,072 shares voted to approve the amendment to the Company's Amended and Restated 1984 Stock Option Plan, with 5,558,923 shares voting against the amendment and 52,221 shares abstaining. Next, 22,633,240 shares voted to approve the Airgas Management Incentive Plan, with 368,035 shares voting against the proposal, 44,099 shares abstaining and 4,196,842 broker no votes. Additionally, 27,210,522 shares voted to ratify the selection of KPMG Peat Marwick LLP as independent auditors, with 17,153 shares voting against the ratification and 14,541 shares abstaining. 20 Item 6. EXHIBITS AND REPORTS ON FORM 8-K a. Exhibits ________ 3.1 Amended and Restated Certificate of Incorporation of Airgas, Inc. dated as of August 7, 1995. 4.1 Seventh Amended and Restated Loan Agreement dated August 10, 1995 between Airgas, Inc. certain banks and NationsBank of North Carolina, N.A. ($375,000,000 credit facility). 10.1 Amended and Restated 1984 Stock Option Plan (as amended effective May 22, 1995) 10.2 Amendment to the 1989 Non-Qualified Stock Option Plan for Directors (Non-Employees) (As amended through August 7, 1995) 10.3 Airgas, Inc. Management Incentive Plan 11 Calculation of earnings per share b. Reports on Form 8-K ___________________ None 21 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. November 7, 1995 /s/Britton H. Murdoch _________________ _______________________ Date Britton H. Murdoch Vice President and Chief Financial Officer
EX-11 2 EXHIBIT 11 - STATEMENT RE COMPUTATION OF PER SHARE EARNINGS EX-1 EXHIBIT 11 AIRGAS, INC. EARNINGS PER SHARE CALCULATIONS
Three Months Ended Six Months Ended September 30, September 30, 1995 1994 1995 1994 ____ ____ ____ ____ Adjustment of Weighted Average Shares Outstanding: Shares of common stock outstanding - - weighted 31,244,553 31,265,907 31,095,291 31,211,245 Net common stock equivalents 1,431,132 1,723,175 1,510,391 1,711,251 __________ __________ __________ __________ Adjusted shares outstanding 32,675,685 32,989,082 32,605,682 32,922,496 ========== ========== ========== ========== Net earnings $ 9,335,000 $ 7,460,000 18,789,000 14,249,000 ========== ========== ========== ========== Primary and fully diluted earnings per share $ .29 $ .23 $ .58 $ .43 ========== ========= ========== =========
Earnings per share amounts were determined using the treasury stock method. This method assumes the exercise of all dilutive outstanding options and warrants and the use of the aggregate proceeds therefrom to acquire the Company's outstanding common stock. Net earnings were divided by the weighted average number of shares outstanding adjusted for the assumed exercise of the options and warrants outstanding and repurchase of common stock to calculate per share amounts.
EX-27 3 ART. 5 FDS FOR 2ND QUARTER 10-Q
5 1000 6-MOS MAR-31-1996 SEP-30-1995 0 0 103,412 3,647 74,837 193,392 516,497 132,312 737,104 111,414 0 324 0 0 208,030 737,104 393,302 393,302 195,374 195,374 0 0 11,455 32,727 13,938 18,789 0 0 0 18,789 .58 .58
EX-3 4 EX 3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION EX-3 AMENDED and RESTATED CERTIFICATE OF INCORPORATION OF AIRGAS, INC. AIRGAS, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware; DOES HEREBY CERTIFY: FIRST: That the Certificate of Incorporation of Airgas, Inc., originally filed with the Delaware Secretary of State on August 21, 1986, be and it is hereby amended and restated in its entirety, in accordance with Section 245 of the General Corporation Laws of the State of Delaware, to read as follows: ARTICLE 1 The name of the Corporation is Airgas, Inc. ARTICLE 2 The address of the registered office of the Corporation in the State of Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company. ARTICLE 3 The purpose of the Corporation is to engage in any lawful act or activity for which Corporations may be organized under the General Corporation Law of Delaware. ARTICLE 4 The total number of shares of capital stock of all classes which the Corporation has authority to issue is Two Hundred Twenty Million Thirty Thousand (220,030,000) shares, of which Two Hundred Million (200,000,000) shares shall be Common Stock, with a par value of One Cent ($0.01) per share, Twenty Million (20,000,000) shares shall be Preferred Stock, with a par value of One Cent ($0.01) per share, and Thirty Thousand (30,000) shares shall be Non-Voting Preferred Stock, with a par value of One Hundred Dollars ($100) per share. The designations and the powers, preferences and rights, and the qualifications, limitations or restrictions of the shares of each class of stock are as follows: COMMON STOCK Subject to all the rights of the Preferred Stock and Non-Voting Preferred Stock, and except as may be expressly provided with respect to the Preferred herein, by law or by the Board of Directors pursuant to this Article 4, the holders of Common Stock shall have the exclusive right to vote for the election of directors and on all other matters requiring stockholder action, each share being entitled to one vote. PREFERRED STOCK The Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series. Subject to the provisions hereof and the limitations prescribed by law, the Board of Directors is expressly authorized, prior to issuance, by adopting resolutions providing for the EX-4 issuance of, providing for a change in the number of, shares of any particular series and, to the extent from time to time required by law, by filing a certificate pursuant to the General Corporation Law or other law hereafter in effect relating to the same or substantially similar subject matter, to establish or change the number of shares to be included in each such series and to fix the designation and relative powers, preferences and rights and the qualifications and limitations or restrictions thereof relating to the shares of each such series. The authority of the Board of Directors with respect to each series include, but not limited to, determination of the following: (a) the distinctive serial designation of such series and the number of shares constituting such series provided that the aggregate number of shares constituting all series of Preferred Stock shall not exceed Twenty Million (20,000,000); (b) the annual dividend rate on shares of such series, whether dividends shall be cumulative and, if so, from which date or dates; (c) whether the shares of such series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon which such shares shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (d) the obligation, if any, of the Corporation to retire shares of such series pursuant to a sinking fund; (e) whether shares of such series shall be convertible into, or exchangeable for, shares of stock or any other class or classes and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any; (f) whether the shares of such series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights; (g) the rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation; and (h) any other relative rights, powers, preferences, qualification, limitations or restrictions thereof relating to such series. The share of Preferred Stock of any one series shall be identical with each other in all respects except as to the date from and after which the dividends thereon shall be cumulative, if cumulative. The number of authorized shares of Preferred Stock may be increased or decreased by the affirmative vote of a majority of the stock of the Corporation entitled to vote without the separate vote of holders of Preferred Stock as a class. NON-VOTING PREFERRED STOCK The designations, powers, preferences, rights, qualifications, limitations and restrictions thereof, and the powers conferred upon the Board of Directors with respect to the fixing of the preferences, limitations and relative rights of the shares of Non-Voting Preferred Stock, are as follows: EX-5 1. The shares of Non-Voting Preferred Stock may be issued from time to time, in one or more series of any number of shares, as and when the Board of Directors shall determine, provided that the aggregate number of shares issued and not cancelled of any and all such shares of Non-Voting Preferred Stock shall not exceed the total number of shares of Non-Voting Preferred Stock herein authorized. 2. All shares of the Non-Voting Preferred Stock shall be of equal rank and shall be identical in all respects, except that, authority is hereby vested in the Board of Directors to issue the Non-Voting Preferred Stock in series, and in connection with the creation of such series to fix by resolution or resolutions providing for the issue of shares thereof the preferences, limitations and relative rights of such series to the extent permitted by this Certificate of Incorporation and the applicable law, in the following respects: (a) whether the shares of such series shall be subject to redemption and, if so, whether redemption shall be mandatory, optional, or both; the redemption price or prices; and such other terms and conditions on which shares of Non-Voting Preferred Stock may be redeemed; (b) whether the shares of such series shall be entitled to limited voting powers or other special rights upon the failure of the Corporation to pay dividends on the Non-Voting Preferred Stock. 3. The holders of the Non-Voting Preferred Stock at the time outstanding shall be entitled to receive, out of funds legally available for the payments of dividends, cumulative preferential dividends at the annual dividend rate of $6.00 per share, payable quarter-yearly in each year, on the dates fixed for the purpose by the Board of Directors, to shareholders of record on the respective dates, not exceeding 40 days preceding such dividend payment dates, fixed for the purpose by the Board of Directors, provided however, that commencing with the first quarter-yearly dividend payment date after four (4) years after the issuance thereof, annual dividend rate for the Non-Voting Preferred Stock thereafter shall be $8.00 per share. The dividends on shares of Non-Voting Preferred Stock shall be cumulative, so that unless the dividends on outstanding shares of the Non-Voting Preferred Stock, at the annual dividend rates, and from the dates for accumulative thereof, shall have been paid or declared set apart for payment for all past quarter-yearly dividends, but without interest on accrued dividends, no dividend shall be made on the Common Stock. Any accumulation of dividends on the Non-Voting Preferred Stock shall not bear interest. The holders on the Non-Voting Preferred Stock shall not be entitled to receive any dividends thereon other than the dividends referred to in this Paragraph 3. 4. The Corporation, by action of its Board of Directors may redeem the whole or any parts of any series of the Non-Voting Preferred Stock at any time or from time to time, except as may be otherwise provided in the resolutions providing for the issuance thereof, at the redemption price of the shares fixed therefore, together with a sum in the case of each share so to be redeemed, computed at the annual dividend rate above provided from the date from which dividends on such share became cumulative to the date fixed for such redemption, less the aggregate of the dividends theretofore on such redemption date paid thereon. Whether any such redemption of the Non-Voting Preferred Stock shall be optional or mandatory, or both optional and mandatory, the redemption price or prices, and all other terms and conditions of any such redemption, shall be fixed by action of the Board of Directors in the resolution creating and issuing such series of such Non-Voting Preferred Stock. EX-6 5. Before any amount shall be paid to, or any assets distributed among, the holders of the Common Stock upon any liquidation, dissolution or winding up of the Corporation, and after paying or providing for the payment of all creditors of the Corporation, the holder of all shares of each series on Non- Voting Preferred Stock at the time outstanding shall be entitled to be paid $100 per share, together with a sum in the case of each such share, computed at the annual dividend rate herein provided, from the date from which dividends on such share became cumulative to the date fixed for the payment of such distributive amount, less the aggregate of the dividends theretofore or on such date paid thereon or declared and set aside for payment thereon, and no more. 6. Whenever the full dividends on the shares of all series of the Non-Voting Preferred Stock at the time outstanding for all past quarter-yearly dividend periods shall have been paid or declared and set apart for payment, then such dividends (payable in cash, stock or otherwise), as may be determined by the Board of Directors may be declared and paid on the Common Stock but only out of the funds legally available for payment of such dividends. 7. In the event of any liquidations, dissolution or winding up of the Corporation, all assets and funds of the Corporation remaining after paying or providing for the payment of all creditors of the Corporation remaining after paying or providing for payment to the holders of the shares of all series of the Non-Voting Preferred Stock of all the full distributive amounts to which they are respectively entitled, as herein provided, shall be divided among and paid to the holders of the Common Stock according to their respective shares. 8. (a) No holder or shares of the Common Stock shall be entitled as such a matter of rights to subscribe for or purchase any part of any new or additional issue of Common Stock, or securities convertible into Common Stock, whether issued for cash, property, services, by way of dividends or otherwise. 9. (a) At all meetings of the shareholders of the Corporation, the holders of shares of Common Stock shall be entitled to one vote for each share of Common Stock held by them respectively. The holders of shares of the Non-Voting Preferred Stock shall have a right to vote and shall not be entitled to notice of any meeting of shareholders of the Corporation, nor to participate in any such meeting except as herein otherwise expressly provided and except for those purposes, if any for which said rights cannot be denied or waived under any mandatory provision of law which shall be controlling. (b) If and when dividends payable on the Non-Voting Preferred Stock shall be in default in an amount equivalent to or exceeding four full quarter-yearly dividends on shares of any series of the Non-Voting Preferred Stock then outstanding, the holders of all shares of such series shall be entitled to elect the number of directors, and to exercise such limited voting powers, as shall be provided by action of the Board of Directors in the resolution creating and issuing the Non-Voting Preferred Stock. 10. The powers of the Board of Directors of the Corporation to fix the terms and conditions on which the shares of Non-Voting Preferred Stock may be redeemed, and to fix the limited voting powers of the holders of the shares of the Non-Voting Preferred Stock upon default of the payment of dividends payable on the Non-Preferred Stock, as authorized herein, shall be exercised by the Board of Directors, and may be exercised by the Executive Committee of the Board of Directors acting for the Board of Directors, by resolution duly adopted at or prior to the time of creating and issuing each series of Non-Voting Preferred Stock, by the vote of a majority of directors present at a duly convened meeting at which a quorum is present, or by unanimous consent in writing signed by all members of the Board of Directors or the Executive EX-7 Committee, as the case may be. Nothing in this paragraph shall authorize the Board of Directors to change in any manner the rights and preferences of any outstanding shares of the Non-Voting Preferred Stock previously issued and outstanding or required, so long as any shares of the Non-Voting Preferred Stock are then outstanding. 11. So long as any shares of the Non-Voting Preferred Stock are outstanding, to the extent amendment would change in any manner the rights and preferences of any shares of the Non-Voting Preferred Stock, this Article IV may not be amended without the approval of the holders of a majority of the outstanding shares of the Non-Voting Preferred Stock voting as a single class. ARTICLE 5 All power of the Corporation shall be exercised by or under the direction of the Board of Directors except as otherwise provided herein or required by law. For the management of the business and for the conduct of the affairs of the Corporation, and in further creation, definition, limitation and regulation of the power of the Corporation and of its directors and of its stockholders, it is further provided: 1. Number, Election and Terms of Directors. Except as otherwise fixed pursuant to the provisions of Article 4 hereof relating to the rights of the holders of any class or series of stock having preference over the Common Stock as to dividends to elect additional directors under specified circumstances, the number of Directors of the Corporation shall [be fixed at nine (9)] consist of no less than seven and no more than thirteen members, as shall be specifically determined from time to time by resolution of the Board of Directors. The Directors, other than those who may be elected by the holders of any class or series of stock having preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible as shall be provided in the manner specified in the By-Laws, one class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1987, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1988, and another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1989, with the members of each class to hold office until their successors are elected and qualified. At each annual meeting of the stockholders of the Corporation, the successors to the class of Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. 2. Newly Created Directorships and Vacancies. Expect as otherwise fixed pursuant to the provisions of Article 4 hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office until the next annual meeting of shareholders. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director. EX-8 3. Removal of Directors. Subject to the rights of any class or series of stock having preference over the Common Stock as to dividends or upon liquidation to elect Director under specified circumstances, any Director may be removed from office without cause only by the affirmative vote of the holders of 67% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class. 4. Stockholder Action. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. 5. Special Meetings. Except as otherwise required by law and subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, the President, the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors, or pursuant to the request of holders of 33% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class. 6. By-Law Amendments. The Board of Directors shall have power to make, alter, amend and repeal the By-Laws (except so far as the By-laws adopted by the stockholders shall otherwise provide.) Any By-Laws made by the Directors under the powers conferred hereby may be altered, amended or repealed by the Directors or by the stockholders. Notwithstanding the foregoing and anything contained in this certificate of incorporation to the contrary, Article III of the By-Laws shall not be altered, amended or repealed and no provision inconsistent therewith shall be adopted without the affirmative vote of the holders of at least 67% of the voting power of all the shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class. 7. Amendment, Repeal, etc. Notwithstanding anything contained in this certificate of incorporation to the contrary, the affirmative vote of the holders of at least 67% of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class, shall be required to alter, amend, adopt any provision inconsistent with, or repeal, this Article 5 or any provision hereof. ARTICLE 6 1 Vote Required for Certain Business Combinations. (a) Higher Vote for Certain Business Combinations. In addition to any affirmative vote required by law or this certificate of incorporation, and except as otherwise expressly provided in Section 2 of this Article 6: (i) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as hereinafter defined) or (b) any other Corporation (whether or not itself an Interested Stockholder) which is, or after such merger or consolidation would be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate of any Interest Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $100 million or more; or EX-9 (iii) The issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $100 million or more; or (iv) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of any Interested Stockholder or any Affiliate of any Interested Stockholder; or (v) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of Equity Security (as hereinafter defined) of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder or any Affiliate of any Interested Stockholder; shall require the affirmative vote of the holders of at least 67% of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), voting together as a single class (it being understood that for the purpose of this Article 6, each share of the Voting Stock shall have the number of votes granted to it pursuant to Article 4 of this certificate of incorporation). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (b) Definition of "Business Combination". The term "Business Combination" used in this Article 6 shall mean any transaction which is referred to in any one or more of clauses (i) through (v) of Paragraph A of this Section 1. 2. When the Higher Vote is Note Required. The provisions of Section 1 of this Article 6 shall not be applicable to any particular Business Combination, and such Business Combination shall require only such affirmative vote as is required by law and any other provision of this certificate of incorporation, if all of the conditions specified in either of the following paragraphs A and B are met: (a) Approval by Disinterested Directors. The Business Combination shall have been approved by a majority of the Disinterested Directors (as hereinafter defined). (b) Price and Procedure Requirements. All of the following conditions shall have been met: (i) The aggregate amount of the cash and the Fair Market Value (as hereinafter defined) as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by holders of Common Stock in such Business Combination shall be at least equal to the higher of the following: (A) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder for any shares of Common stock acquired by it (1) within the two-year period immediately prior to the first public announcement of the terms of the proposed Business Combination (the "Announcement Date") or (2) in the transaction in which it became an EX-10 Interested Stockholder, whichever is higher; and (B) the fair market value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (such latter date is referred to in this Article 6 as the "Determination Date"), whichever is higher. (ii) The aggregate amount of the cash and the fair market value as of the date of the consummation of the business combination of consideration other than cash to be received per share by holders of shares of any other class of outstanding Voting Stock shall be at least equal to the highest of the following (it being intended that the requirements of this paragraph b(ii) shall be required to be met with respect to every class of outstanding Voting Stock, whether or not the Interested Stockholder has previously acquired any shares of a particular class of Voting Stock): (A) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder for any shares of Common stock acquired by it (1) within the two-year period immediately prior to the Announcement Date or (2) in the transaction in which it became an Interested Stockholder, whichever is higher; (B) (if applicable) the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; and (C) the fair market value per share of such class of Voting Stock on the Announcement Date or on the Determination Date, whichever is higher. (iii) The consideration to be received by holders of a particular class of outstanding Voting Stock (including Common Stock) shall be in cash or in the same form as the Interest Stockholder has previously paid for shares of such class of Voting Stock. If the Interested Stockholder has paid for shares of any class of Voting Stock with varying forms of consideration, the form of consideration for such class of Voting Stock previously acquired by it. The price determined in accordance with paragraphs B(i) and B(ii) of this Section 2 shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination of shares or similar event. (iv) After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (a) except as approved by a majority of the Disinterested Directors, there shall have been no failure to declare and pay at the regular date therefore any full quarterly dividends (whether or not cumulative) on any outstanding stock having preference over the Common Stock as to dividends or upon liquidation; (b) there shall have been (1) no reduction in the annual rate of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of the Disinterested Directors, and (2) an increase in such annual rate of dividends as necessary to reflect any reclassification (including any reverse stock split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure to increase such annual rate is approved by a majority of the Disinterested Directors; and (c) such Interested Stockholder shall have not become the beneficial owner of any additional shares of Voting Stock except as part of the transaction which results in such Interested Stockholder becoming an Interested Stockholder. EX-11 (v) After such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Corporation, whether in anticipation of or in connection with such Business Combination or otherwise. (vi) A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to public stockholders of the Corporation at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). 3. Certain Definitions. For the purpose of this Article 6: (a.) A "person" shall mean any individual, firm, Corporation or other entity. (b.) "Interested Stockholder" shall mean any person (other than the Corporation or any Subsidiary) who or which: (i) is the beneficial owner, directly or indirectly, of 20% or more of the voting power of the outstanding Voting Stock; or (ii) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, or 20% or more of the voting power of the then outstanding Voting Stock; or (iii) is an assignee of or has otherwise succeeded to any shares of Voting Stock which were at any time within the two-year period immediately prior to the date in question beneficially owned by any Interested Stockholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (c.) A person shall be a "beneficial owner" of any Voting Stock: (i) which such person or any of its Affiliates or Associates (as hereinafter defined) beneficially owns directly or indirectly; or (ii) which such person or any of its Affiliates or Associates has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (B) the right to vote pursuant to any agreement, arrangement or understanding; or (iii) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. (d.) For the purpose of determining whether a person is an Interested Stockholder pursuant to paragraph B of this Section 3, the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned through application of paragraph C of this Section 3 but shall not include any other shares of Voting Stock which may be issuable pursuant to any EX-12 agreement, arrangement or understanding upon exercise of conversion rights, warrants or options or otherwise. (e.) "Affiliate" or "Associate" shall have the respective meanings ascribed to such terms in Rule l2b-2 of the General Rules and Regulations under the Securities Exchange Act of l934, as in effect on January l, l985. (f.) "Subsidiary" means any Corporation of which a majority of any class of Equity Security is owned, directly or indirectly, by the Corporation, provided, however, that for the purposes of the definition of Interested Stockholder set forth in paragraph b of the Section 3, the term "Subsidiary" shall mean only a Corporation of which a majority of each class of Equity Security is owned, directly or indirectly, by the Corporation. (g.) "Disinterested Director" means any member of the Board of Directors who is unaffiliated with the Interested Stockholder and was a member of the Board of Directors prior to the time that the Interested Stockholder became an Interested Stockholder, and any successor of a Disinterested Director who is unaffiliated with the Interested Stockholder and is recommended to succeed a Disinterested Director by a majority of Disinterested Directors then on the Board of Directors. (h.) "Fair Market Value" means: (i) in the case of stock, the highest closing sale price during the 30 day period immediately preceding the date in question of a share of such stock on the Composite Tape for New York Stock Exchange - Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of l934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the 30 day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the Board of Directors in good faith; and (ii) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the Board of Directors in good faith. (i.) In the event of any Business Combination in which the Corporation survives, the phrase "consideration other than cash to be received" as used in paragraphs B(i) and (ii) of Section 2 of this Article 6 shall include the shares of Common Stock and/or the shares of any other class of outstanding Voting Stock retained by the holders of such shares. (j.) "Equity Security" shall have the meaning ascribed to such term in Section 3(a)(II) of the Securities Exchange Act of 1934, as in effect on January l, l985. 4. Powers of the Board of Directors. A majority of the Directors shall have the power and duty to determine for the purposes of this Article 6, on the basis of information known to them after reasonable inquiry, (a) whether a person is an Interested Stockholder, (b) the number of shares of Voting Stock beneficially owned by any person, (c) whether a person is an Affiliate or Associate of another, (d) whether the assets which are the object of any Business Combination have, or the consideration to be received for the issuance or transfer of securities by the Corporation or any Subsidiary in any Business Combination has, an aggregate Fair Market Value of $l00 million or more. A majority of the Directors shall have the further power to interpret all of the terms and provisions of this Article 6. EX-13 5. No Effect on Fiduciary Obligations of Interested Shareholders. Nothing contained in this Article 6 shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. 6. Amendment, Repeal, etc. Notwithstanding any other provisions of this certificate of incorporation or the By-Laws (and notwithstanding the fact that a lesser percentage may be specified by law, this certificate of incorporation or the By-Laws) the affirmative vote of the holders of 67% or more of the outstanding Voting Stock, voting together as a single class, shall be required to amend or repeal, or adopt any provisions inconsistent with this Article 6 or any provision hereof. ARTICLE 7 1. Prevention of "Greenmail". Any direct or indirect purchase or other acquisition by the Corporation of any Equity Security (as hereinafter defined) of any class from any Interested Securityholder (as hereinafter defined) who has beneficially owned such securities for less than two years prior to the date of such purchase or any agreement in respect thereof shall, except as hereinafter expressly provided, require the affirmative vote of the holders of at least a majority of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), excluding Voting Stock beneficially owned by such Interested Securityholder, voting together as a single class (it being understood that for the purposes of this Article 7, each share of Voting Stock shall have the number of votes granted to it pursuant to Article 4 of this certificate of incorporation). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or any agreement with any national securities exchange, or otherwise, but no such affirmative vote shall be required with respect to any purchase or other acquisition of securities made as part of a tender or exchange offer by the Corporation to purchase securities of the same class made on the same terms to all holders of such securities and complying with the applicable requirements of the Securities Exchange Act of l934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations). 2. Certain Definitions. For the purposes of this Article 7: (a.) A "person" shall mean any individual, firm, Corporation or other entity. (b.) "Interested Securityholder" shall mean any person (other than the Corporation or any Corporation of which a majority of any class of Equity Security is owned, directly or indirectly, by the Corporation) who or which: (i) is the beneficial owner, directly or indirectly, of 20% or more of the class of securities to be acquired; or (ii) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 20% or more of the class of securities to be acquired; or (iii) is an assignee or has otherwise succeeded to any shares of the class of securities to be acquired which were at any time within the two year period immediately prior to the date in question beneficially owned by an Interested Securityholder, if such assignment or succession shall have occurred in the course of a transaction or transactions not involving a public offering with the meaning of the Securities Act of l933. EX-14 (c.) A person shall be a "beneficial owner" of any security of any class of the Corporation: (i) which such person or any of its Affiliates or Associates (as hereinafter defined) beneficially owns, directly or indirectly; or (ii) Which such person or any of its Affiliates or Associates has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (B) any right to vote pursuant to any agreement, arrangement or understanding; or (iii) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing any security of any class of the Corporation. (d.) For the purposes of determining whether a person is an Interested Securityholder pursuant to paragraph b of this Section 2, the relevant class of securities outstanding shall be deemed to comprise all such securities deemed owned through application of paragraph c of this Section 2, but shall not include other securities of such class which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. (e.) "Affiliate" or "Associate" shall have the respective meanings ascribed to such terms in Rule l2b-2 of the General Rules and Regulations under the Securities Exchange Act of l934, as in effect on January l, l985. (f.) "Equity Security" shall have the meaning ascribed to such term in Section 3(a)(ll) of the Securities Exchange Act of l934, as in effect on January l, l985. ARTICLE 8 The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute and this certificate of incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. Any such amendment, alteration, change or repeal shall be of no force and effect prior to the expiration of thirty (30) days after the affirmative vote of the holders of the appropriate majority of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors. ARTICLE 9 The Corporation is to have perpetual existence. ARTICLE 10 A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (the "GCL"),or (iv) for any transaction from which the EX-15 director derived an improper personal benefit. If the GCL hereafter is amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the amended GCL. Any repeal or modification of this Article 10 by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting was necessary number of shares as required by statute were voted in favor of the amendment and restatement. THIRD: That said amendment and restatement was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment and restatement. IN WITNESS WHEREOF, said Airgas, Inc., has caused its corporate seal to be hereunto affixed and this certificate to be signed by Todd R. Craun, its Secretary, and McKinley C. McAdoo, its Assistant Secretary, as of the 7th day of August, 1995. ______________________________ _____________________________ Assistant Secretary Secretary EX-4 5 EX 4.1 - SEVENTH AMENDED AND RESTATED LOAN AGREEMENT EX-16 [EXECUTION COPY] SEVENTH AMENDED AND RESTATED LOAN AGREEMENT DATED AS OF AUGUST 10, 1995 BY AND AMONG AIRGAS, INC., THE BANKS NAMED HEREIN, AND NATIONSBANK, N.A. (CAROLINAS), AS AGENT EX-17 TABLE OF CONTENTS ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . .1 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . .1 1.02 Accounting Terms.. . . . . . . . . . . . . . . . . . 13 ARTICLE II REVOLVING CREDIT LOANS. . . . . . . . . . . . . 13 2.01 Revolving Credit Loans.. . . . . . . . . . . . . . . 13 2.02 Borrowing Procedures.. . . . . . . . . . . . . . . . 14 (a) Minimum Amounts.. . . . . . . . . . . . . . . . 14 (b) Interest Rate Options.. . . . . . . . . . . . . 14 (c) Notice of Borrowing.. . . . . . . . . . . . . . 14 (d) Interest Period Limitations, etc. . . . . . . . 15 2.03 Revolving Credit Notes.. . . . . . . . . . . . . . . 15 2.04 Interest.. . . . . . . . . . . . . . . . . . . . . . 15 2.05 Commitment Fee; Commitment Reductions. . . . . . . . 16 (a) Commitment Fee. . . . . . . . . . . . . . . . . 16 (b) Commitment Reductions.. . . . . . . . . . . . . 17 ARTICLE III LETTERS OF CREDIT . . . . . . . . . . . . . . . 17 3.01 Letters of Credit. . . . . . . . . . . . . . . . . . 17 (a) General Provisions. . . . . . . . . . . . . . . 17 (b) Requests for Letters of Credit. . . . . . . . . 18 (c) Participations of Banks in Letters of Credit. . . . . . . . . . . . . . . . . . . . . 18 (d) Reimbursement of Drawings.. . . . . . . . . . . 18 (e) Indemnity.. . . . . . . . . . . . . . . . . . . 19 (f) Letter of Credit Fees. . . . . . . . . . . . . 20 3.02 Additional Costs.. . . . . . . . . . . . . . . . . . 21 3.03 Account Parties. . . . . . . . . . . . . . . . . . . 21 ARTICLE IV MONEY MARKET LOANS. . . . . . . . . . . . . . . 21 4.01 Money Market Loans.. . . . . . . . . . . . . . . . . 21 (a) Money Market Loan Requests. . . . . . . . . . . 21 (b) Money Market Quotes.. . . . . . . . . . . . . . 22 (c) Acceptance of Money Market Quotes.. . . . . . . 22 (d) Funding of Money Market Loans.. . . . . . . . . 23 (e) Money Market Notes. . . . . . . . . . . . . . . 23 (f) Repayment of Money Market Loans.. . . . . . . . 24 (g) Interest. . . . . . . . . . . . . . . . . . . . 24 (h) Limitation on Number of Money Market Loans. . . 24 (i) Change in Procedures for Requesting Money Market Loans. . . . . . . . . . . . . . . . . . 24 ARTICLE V ADDITIONAL PROVISIONS REGARDING REVOLVING CREDIT LOANS AND MONEY MARKET LOANS . . . . . . 25 5.01 Additional Interest Rate Provisions. . . . . . . . . 25 (a) Default Rate. . . . . . . . . . . . . . . . . . 25 (b) Inability to Determine LIBOR Base Rate. . . . . 25 (c) Inability to Determine CD Rate. . . . . . . . . 25 5.02 Conversion and Continuation of Revolving Credit Loans. . . . . . . . . . . . . . . . . . . . . . . . 26 5.03 Prepayments. . . . . . . . . . . . . . . . . . . . . 28 5.04 Additional Costs.. . . . . . . . . . . . . . . . . . 28 5.05 Change in Circumstances. . . . . . . . . . . . . . . 31 5.06 Indemnity. . . . . . . . . . . . . . . . . . . . . . 31 5.07 Payments.. . . . . . . . . . . . . . . . . . . . . . 32 5.08 Capital Adequacy.. . . . . . . . . . . . . . . . . . 33 ARTICLE VI INITIAL CONDITIONS PRECEDENT. . . . . . . . . . 34 6.01 Conditions Precedent to Initial Extensions of Credit.. . . . . . . . . . . . . . . . . . . . . . . 34 EX-18 ARTICLE VII CONDITIONS OF ALL EXTENSIONS OF CREDIT. . . . . 35 7.01 Conditions of all Extensions of Credit.. . . . . . . 35 7.02 Commitment Limitations; Reaffirmation. . . . . . . . 36 ARTICLE VIII REPRESENTATIONS AND WARRANTIES. . . . . . . . . 36 8.01 Representations and Warranties.. . . . . . . . . . . 36 (a) Corporate Organization. . . . . . . . . . . . . 36 (b) Corporate Power and Authority to Own Properties, etc.. . . . . . . . . . . . . . . . 36 (c) Corporate Power and Authority with Respect to Loan Documents. . . . . . . . . . . . . . . . . 37 (d) Validity of Loan Documents. . . . . . . . . . . 37 (e) Execution, Delivery and Performance of Loan Documents.. . . . . . . . . . . . . . . . . . . 37 (f) Title of Properties.. . . . . . . . . . . . . . 37 (g) Subsidiaries. . . . . . . . . . . . . . . . . . 37 (h) Interests in Other Persons. . . . . . . . . . . 37 (i) Financial Statements. . . . . . . . . . . . . . 37 (j) Litigation. . . . . . . . . . . . . . . . . . . 38 (k) Compliance with Laws. . . . . . . . . . . . . . 38 (l) Environmental Matters.. . . . . . . . . . . . . 38 (m) Governmental Regulations, etc.. . . . . . . . . 38 (n) Patents, Licenses and Trademarks. . . . . . . . 39 (o) MEPP. . . . . . . . . . . . . . . . . . . . . . 39 (p) "Investment" or "Holding" Company.. . . . . . . 39 (q) Judgments; Defaults.. . . . . . . . . . . . . . 39 (r) Taxes.. . . . . . . . . . . . . . . . . . . . . 39 (s) ERISA.. . . . . . . . . . . . . . . . . . . . . 40 (t) Full Disclosure.. . . . . . . . . . . . . . . . 40 (u) Governmental Consent. . . . . . . . . . . . . . 40 ARTICLE IX AFFIRMATIVE COVENANTS . . . . . . . . . . . . . 40 9.01 Affirmative Covenants. . . . . . . . . . . . . . . . 40 (a) Annual Financial Information. . . . . . . . . . 40 (b) Quarterly Financial Information.. . . . . . . . 41 (c) Financial Information Concerning Acquired Companies.. . . . . . . . . . . . . . . . . . . 41 (d) Officer's Compliance Certificate. . . . . . . . 41 (e) Stockholder and SEC Reports.. . . . . . . . . . 42 (f) Other Information.. . . . . . . . . . . . . . . 42 (g) Primary Depository. . . . . . . . . . . . . . . 42 (h) Fiscal Year.. . . . . . . . . . . . . . . . . . 42 (i) Use of Loan Proceeds. . . . . . . . . . . . . . 42 (j) Maintenance of Properties.. . . . . . . . . . . 42 (k) Preservation of Existence, etc. . . . . . . . . 43 (l) Compliance with Laws; Payment of Taxes. . . . . 43 (m) Environmental Matters.. . . . . . . . . . . . . 43 (n) Indemnity.. . . . . . . . . . . . . . . . . . . 43 (o) Insurance.. . . . . . . . . . . . . . . . . . . 44 (p) Patents, Licenses and Trademarks. . . . . . . . 44 (q) Books and Records.. . . . . . . . . . . . . . . 44 (r) Inspection. . . . . . . . . . . . . . . . . . . 44 (s) Discussions with Accountants. . . . . . . . . . 44 (t) Notice of Defaults. . . . . . . . . . . . . . . 44 (u) Payment of Agent's Fee. . . . . . . . . . . . . 44 (v) Notices of Certain Events.. . . . . . . . . . . 44 (w) ERISA.. . . . . . . . . . . . . . . . . . . . . 45 (x) Further Assurances. . . . . . . . . . . . . . . 46 EX-19 ARTICLE X NEGATIVE COVENANTS. . . . . . . . . . . . . . . 46 10.01 Negative Covenants. . . . . . . . . . . . . . . 46 (a) Indebtedness. . . . . . . . . . . . . . . . . . 46 (b) Liens.. . . . . . . . . . . . . . . . . . . . . 47 (c) Acquisitions, Consolidations, Mergers, etc. . . 48 (d) Asset Sales, etc. . . . . . . . . . . . . . . . 48 (e) Sale/Leasebacks.. . . . . . . . . . . . . . . . 49 (f) Dissolution, etc. . . . . . . . . . . . . . . . 49 (g) Guarantees. . . . . . . . . . . . . . . . . . . 49 (h) Investments.. . . . . . . . . . . . . . . . . . 50 (i) Receivables Sales.. . . . . . . . . . . . . . . 51 (j) Transactions with Affiliates. . . . . . . . . . 51 (k) Loans and Advances. . . . . . . . . . . . . . . 52 (l) Dividends.. . . . . . . . . . . . . . . . . . . 52 (m) Partnerships, Joint Ventures, etc.. . . . . . . 52 (n) Line of Business. . . . . . . . . . . . . . . . 53 (o) Changes in Accounting Practices.. . . . . . . . 53 (p) Funded Debt Coverage Ratio. . . . . . . . . . . 53 (q) Fixed Charge Coverage Ratio.. . . . . . . . . . 53 (r) Minimum Book Net Worth. . . . . . . . . . . . . 53 (s) Prepayments of Indebtedness, etc. . . . . . . . 54 (t) Payments on Subordinated Debt.. . . . . . . . . 54 (u) Amendment of Subordinated Debt Documents. . . . 54 ARTICLE XA INCORPORATION OF SUBORDINATED DEBT COVENANTS. . 55 10A.01 Incorporation of Subordinated Debt Covenants.. . . . . . . . . . . . . . . . . . . 55 ARTICLE XI EVENTS OF DEFAULT AND ACCELERATION. . . . . . . 55 11.01 Events of Default and Acceleration. . . . . . . 55 ARTICLE XII THE AGENT . . . . . . . . . . . . . . . . . . . 58 12.01 Appointment and Authorization.. . . . . . . . . 58 12.02 Use of Agents, etc. . . . . . . . . . . . . . . 58 12.03 General Immunity. . . . . . . . . . . . . . . . 58 12.04 Reliance, etc.. . . . . . . . . . . . . . . . . 58 12.05 Events of Default.. . . . . . . . . . . . . . . 59 12.06 No Representations. . . . . . . . . . . . . . . 59 12.07 Indemnification of Agent. . . . . . . . . . . . 60 12.08 Dealings with the Borrower. . . . . . . . . . . 60 12.09 Resignation and Removal.. . . . . . . . . . . . 60 ARTICLE XIII MISCELLANEOUS . . . . . . . . . . . . . . . . . 61 13.01 Notices.. . . . . . . . . . . . . . . . . . . . 61 13.02 No Waiver: Remedies Cumulative. . . . . . . . . 62 13.03 Survival of Certain Provisions, etc.. . . . . . 62 13.04 Payment of Expenses, etc. . . . . . . . . . . . 62 13.05 Amendments, Waivers and Consents. . . . . . . . 63 13.06 Computations. . . . . . . . . . . . . . . . . . 63 13.07 Right of Set Off. . . . . . . . . . . . . . . . 64 13.08 Interim Interest. . . . . . . . . . . . . . . . 64 13.09 Counterparts. . . . . . . . . . . . . . . . . . 64 13.10 Assignments, Participations, etc. . . . . . . . 64 13.11 Binding Effect; Termination of Prior Loan Agreement; Term of Agreement. . . . . . . . . . 65 13.12 Governing Law; Submission to Jurisdiction; Venue.. . . . . . . . . . . . . . . . . . . . . 65 13.13 Obligations Senior to Subordinated Debt.. . . . 66 13.14 Currency Conversions. . . . . . . . . . . . . . 66 13.15 Dealings by Banks with the Borrower.. . . . . . 66 13.16 Net Payments. . . . . . . . . . . . . . . . . . 66 EX-20 Exhibits Exhibit A Banks' Commitment Levels Exhibit B Contingent Liability Exhibit C Form of Revolving Credit Note Exhibit D Form of Money Market Note Exhibit E Form of Legal Opinion Exhibit F Existing Liens Exhibit G Subsidiaries Exhibit H Interest in Other Persons Exhibit I Litigation Exhibit J Form of Officer's Compliance Certificate Exhibit K Insurance Coverage Exhibit L Existing Indebtedness EX-21 Schedules Schedule 1 $25,000,000 Senior Subordinated Note Purchase Agreement Schedule 2 $30,000,000 Senior Subordinated Note Purchase Agreement Schedule 3 Existing Letters of Credit EX-22 SEVENTH AMENDED AND RESTATED LOAN AGREEMENT THIS SEVENTH AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 10, 1995 (the "Loan Agreement"), amends and restates that certain Sixth Amended and Restated Loan Agreement dated as of August 30, 1994 (as amended from time to time, the "Prior Loan Agreement") by and among Airgas, Inc. and certain of its Subsidiaries and certain of the Banks hereinafter referred to and defined and NationsBank, N.A. (Carolinas) (successor in interest to NationsBank of North Carolina, N.A.), as agent for such Banks, and is made by and among AIRGAS, INC., a Delaware corporation (the "Borrower"); the banks from time to time parties hereto (the "Banks"); and NATIONSBANK, N.A. (CAROLINAS), as Agent for the Banks. RECITALS: A. The Borrower has requested that the Banks provide the Borrower with a $375,000,000.00 credit facility for the purposes of (i) refinancing certain existing indebtedness of the Borrower and certain of its Subsidiaries to the Banks, (ii) financing the acquisition of new Subsidiaries, (iii) financing other investments permitted under this Loan Agreement and (iv) satisfying capital expenditure, working capital and letter of credit needs of the Borrower and its Subsidiaries. B. The Banks have agreed to provide the requested credit facility to the Borrower on the terms and conditions hereinafter set forth. NOW, THEREFORE, the Borrower, the Agent and the Banks agree as follows: ARTICLE I DEFINITIONS 1.01 Definitions. For the purposes hereof: "Affiliate", with respect to any Person, means any other Person (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such first Person; or (ii) which beneficially owns or holds 5% or more of any class of the Voting Stock (or in the case of such first Person which is not a corporation, 5% or more of the equity interest) of such first Person; or (iii) of which 5% or more of the Voting Stock (or in the case of a Person which is not a corporation, 5% or more of the equity interest) is beneficially owned or held by such first Person. EX-23 "Applicable Percentage" means, at any time, the applicable margin corresponding to the ratios described below in effect as of the most recent Rate Determination Date (as hereinafter defined): Applicable Applicable Applicable Percentage Percentage Percentage Applicable for for for Percentage Standby Pricing Funded Debt Eurodollar Commitment for Letter of Level Coverage Ratio Loans Fee CD Loans Credit Fee _________________________________________________________________________ VII Greater than 4.0 to 1.0 100.0bps 25.0bps 112.5bps 100.0bps VI Equal to or less than 4.0 to 1.0 but greater than 3.5 to 1.0 75.0bps 25.0bps 87.5bps 75.0bps V Equal to or less than 3.5 to 1.0 but greater than 3.0 to 1.0 62.5bps 20.0bps 75.0bps 62.5bps IV Equal to or less than 3.0 to 1.0 but greater than 2.5 to 1.0 50.0bps 18.75bps 62.5bps 50.0bps III Equal to or less than 2.5 to 1.0 but greater than 2.0 to 1.0 45.0bps 18.75bps 57.5bps 45.0bps II Equal to or less than 2.0 to 1.0 but greater than 1.5 to 1.0 37.5bps 15.0bps 50.0bps 37.5bps I Equal to or less than 1.5 to 1.0 30.0bps 12.5bps 42.5bps 30.0bps Determination of the appropriate Applicable Percentage based on the Funded Debt Coverage Ratio shall be made as of the Closing Date and as of each March 31, June 30, September 30 and December 31 thereafter (each such date a "Rate Determination Date"). The Funded Debt Coverage Ratio in effect as of a Rate Determination Date (as calculated by the chief financial officer of the Borrower and set forth in the related statement of such chief financial officer delivered to the Banks in accordance with Section 9.01(d) hereof) shall establish the Applicable Percentages for the second calendar quarter immediately following such Rate Determination Date. A change in the Applicable Percentages shall be effective as of the first day of the second calendar quarter after the Rate Determination Date giving rise to such change and shall be applicable thereafter until the effective date of any subsequent change. The Agent shall (i) verify the calculations of the Funded Debt Coverage Ratio provided by the chief financial officer of the Borrower as described above for each Rate Determination Date and (ii) determine the Applicable Percentages as of each Rate EX-24 Determination Date. The Agent shall promptly notify the Borrower and the Banks of the Applicable Percentages so determined. Such conclusive absent manifest error. The Applicable Percentages as of the Closing Date are 50.0bps for Revolving Credit Loans which are Eurodollar Loans, 62.5bps for Revolving Credit Loans which are CD Loans, 18.75bps for the Commitment Fee, and 50.0bps for the Standby Letter of Credit Fee. "Assessment Rate" means, for any day, the annual assessment rate (rounded upward to the nearest 1/100th of 1%) which is payable by NationsBank to the Federal Deposit Insurance Corporation (or any successor) for insurance for dollar time deposits with NationsBank at its principal office as determined by the Agent. The CD Rate shall be adjusted automatically as of the effective date of each change in the Assessment Rate. "Banks" means each of the Banks listed on Exhibit A hereto and any Person which becomes a Bank in accordance with the terms of Section 13.10(a). "Base Rate" means, for any day, a rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. For purposes hereof, (i) "Prime Rate" shall mean the rate of interest per annum publicly announced from time to time by NationsBank as its prime rate in effect at its principal office in Charlotte, North Carolina, with each change in the Prime Rate being effective on the date such change is publicly announced as effective (it being understood and agreed that the Prime Rate is a reference rate used by NationsBank 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 NationsBank to any debtor) and (ii) "Federal Funds Rate" shall mean, for any day, the rate of interest per annum (rounded upwards to the next 1/100 of 1%) 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 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 quoted to the Agent on such day on such transactions as determined by the Agent. If for any reason the Agent shall have determined (which determination shall be conclusive absent demonstrable error) that it is unable after due inquiry to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to clause (a) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively. "Base Rate Loan" means a Revolving Credit Loan bearing interest based on the Base Rate in accordance with the provisions of Articles II and V hereof. EX-25 "Book Net Worth" means, at any time, consolidated net stockholders' equity of the Borrower and its Subsidiaries determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis excluding any Capital Stock to which a Redemption Obligation relates so long as such Redemption Obligation is outstanding. "Business Day" means any day not a Saturday, Sunday or legal holiday on which each of the Banks is open for business; provided, however, that, when used in connection with a Eurodollar Loan, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London Interbank Market. "Canadian Lender" means a bank or other financial institution organized and existing under the laws of Canada or any province or other political subdivision thereof, or any subsidiary of such a bank or other financial institution. "Canadian Subsidiary" means a direct or indirect Subsidiary of the Borrower which is organized and existing under the laws of Canada or any province or other political subdivision thereof. "Capital Stock" means common stock and any class or series of preferred stock. "CD Base Rate" means, for any CD Loan for any Interest Period therefor, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Agent to be the average of the bid rates quoted to the Agent at approximately 10:00 a.m. (or as soon thereafter as practicable) at the principal office of NationsBank on the first day of such Interest Period by three (3) or more certificate of deposit dealers of recognized standing selected by the Agent for the purchase at face value of certificates of deposit of NationsBank having a term comparable to the such Interest Period and in an amount comparable to the principal amount of the CD Loan to be made by NationsBank for such Interest Period. "CD Loan" means a Revolving Credit Loan bearing interest based on the CD Rate in accordance with the provisions of Articles II and V hereof; "CD Rate" means, with respect to any CD Loan for the Interest Period applicable thereto, a simple rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) determined by the Agent pursuant to the following formula: CD Base Rate 1 - CD Reserve Percentage + Assessment Rate "CD Reserve Percentage" means, for any day, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including without limitation any basic, supplemental or emergency reserves) for a member bank of the Federal Reserve System in the Federal Reserve District in which the principal office of NationsBank is located in respect of new nonpersonal dollar time deposits in the amount of $100,000 or more and having a maturity comparable to the related Interest Period. The CD Rate shall be EX-26 adjusted automatically as of the effective date of each change in the CD Reserve Percentage. "Closing Date" means the date as of which this Loan Agreement is executed by the Borrower, the Banks and the Agent and all of the conditions precedent set forth in Article VI hereof have been satisfied. "Commitment Fee" shall have the meaning assigned to such term in Section 2.05(a) hereof. "Consistent Basis", in reference to the application of Generally Accepted Accounting Principles, means that the accounting principles observed in the period referred to are comparable in all material respects to those applied in the most recent preceding period. "Controlled Group" means the group of trades or businesses under common control as defined in Section 414(c) of the Internal Revenue Code of 1986 (as the same may be amended from time to time) and the applicable regulations thereunder, of which the Borrower or any of its Subsidiaries is a part or may become a part. "Current Maturities" means, at any time, (i) current maturities of Long Term Debt as of such time and (ii) short term notes payable by the Borrower or any of its Subsidiaries as of such time, all as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. "Domestic Subsidiary" means any Subsidiary of the Borrower which is incorporated or organized under the laws of any State or territory of the United States or the District of Columbia. "EBITDA" means, with respect to the twelve-month period ending on the date such calculation is made, the sum of (i) Operating Income for such period and (ii) depreciation expense of the Borrower and its Subsidiaries on a consolidated basis for such period, all as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. "ERISA" shall have the meaning given to said term in Section 9.01(w) hereof. "Eurodollar Loan" means a Revolving Credit Loan bearing interest based on the LIBOR Base Rate in accordance with the provisions of Articles II and V hereof. "Event of Default" shall have the meaning given to said term in Section 11.01 hereof. "Executive Officer" means the chief executive officer, chief operating officer or chief financial officer of the Borrower. "Existing Letters of Credit" means the letters of credit set forth on Schedule 3 attached hereto. "Extension of Credit" means any Revolving Credit Loan or Money Market Loan advanced hereunder or any Letter of Credit issued hereunder (and obligations to make advances thereunder). EX-27 "Fixed Charge Coverage Ratio" means, with respect to the twelve-month period ending on the date such calculation is made, the ratio of (i) Operating Income for such period to (ii) Fixed Charges for such period. "Fixed Charges" means, for any period, the sum of (i) Interest Expense for such period, plus (ii) Current Maturities as of the first day of such period. "Funded Debt" means, with respect to any Person, without duplication, (i) all Indebtedness of such Person for borrowed money, (ii) all purchase money Indebtedness of such Person, including without limitation the principal portion of all obligations of such Person under leases required to be capitalized in accordance with Generally Accepted Accounting Principles, (iii) all Guaranty Obligations of such Person with respect to Funded Debt of another Person, (iv) the maximum amount available to be drawn (assuming satisfaction under all conditions to drawing) of all standby letters of credit or acceptances issued or created for the account of such Person and (v) all Funded Debt of another Person secured by a lien, security interest or other encumbrance on or in any property or assets of such Person, whether or not such Funded Debt has been assumed. The Funded Debt of any Person shall include the Funded Debt of any partnership or joint venture in which such Person is a general partner (except for any such Funded Debt with respect to which the holder thereof is limited to the assets of such partnership or joint venture). "Funded Debt Coverage Ratio" means, at any time, the ratio of (i) Funded Debt of the Borrower and its Subsidiaries on a consolidated basis at such time to (ii) EBITDA for the twelve-month period then ended. "Generally Accepted Accounting Principles" means those principles of accounting set forth in pronouncements of the Financial Accounting Standards Board of the American Institute of Certified Public Accountants, as such principles are from time to time supplemented and amended. "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) for the benefit of any holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or services solely 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. EX-28 "Indebtedness" of any Person means, 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 under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations (excluding intercompany items) 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, (v) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on or security interest in, 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, (vi) all Guaranty Obligations of such Person, (vii) the principal portion of all obligations of such Person under leases required to be capitalized in accordance with Generally Accepted Accounting Principles, (viii) the maximum amount available to be drawn (assuming satisfaction under all conditions to drawing) of all standby letters of credit or acceptances issued or created for the account of such Person and (ix) all preferred or other capital stock issued by such Person required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date. The Indebtedness of any Person (a) shall not include any obligations of such Person in respect of endorsements in the ordinary course of business of negotiable instruments for deposit or collection and (b) shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner (except for any such Indebtedness with respect to which the holder thereof is limited to the assets of such partnership or joint venture). "Interest Expense" means, for any period, consolidated interest expense of the Borrower and its Subsidiaries for such period, as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. "Interbank Offered Rate" means, with respect to any Eurodollar Loan for the Interest Period applicable thereto, the rate appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in U.S. dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If, for any reason, such rate is not available, the term "Interbank Offered Rate" shall mean, with respect to any Eurodollar Loan for the Interest Period applicable thereto, the rate per annum appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. "Interest Payment Date" means, (i) as to any CD Loan having an Interest Period of 30, 60 or 90 days, any Eurodollar Loan having an EX-29 Interest Period of 1, 2 or 3 months or any Money Market Loan, the last day of the applicable Interest Period, (ii) as to any CD Loan having an Interest Period longer than 90 days or any Eurodollar Loan having an Interest Period longer than 3 months, the last day of June, September, December and March in each year and the last day of the applicable Interest Period and (iii) as to any Base Rate Loan, the last day of June, September, December and March in each year. If any Interest Payment Date falls on a day which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day (unless, in case of a Eurodollar Loan, the same would fall in a succeeding month, in which case such Interest Payment Date shall be deemed to be the first preceding Business Day). "Interest Period" means, (i) as to any CD Loan, a period of 30, 60, 90 or 180 days' duration or, unless unavailable pursuant to the terms of Section 5.01(c) hereof, of 270 or 360 days, as the Borrowers may elect, commencing on the date such CD Loan shall have been made or immediately upon expiration of the Interest Period of the preceding CD Loan, (ii) as to any Eurodollar Loan, the period commencing on the date of such Eurodollar Loan and ending on the numerically corresponding day (or if there is no corresponding day, the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter or, unless unavailable pursuant to the terms of Section 5.01(b) hereof, in the calendar month that is 9 or 12 months thereafter, as the Borrower may elect; or (iii) as to any Money Market Loan, such period as a Bank shall offer and the Borrower may elect, in any event not to be less than 1 nor more than 90 days; provided, however, that (A) if any Interest Period would end on a day which shall not be a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, with respect to Eurodollar Loans, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (B) no Interest Period with respect to a Money Market Loan, to a CD Loan or to a Eurodollar Loan shall end later than the Termination Date. "Jackson" means Jackson Products, Inc., a former Delaware corporation and Subsidiary of the Borrower. "LC Agent" means NationsBank. "LC Agent Standby Letter of Credit Facing Fee" shall have the meaning assigned to such term in Section 3.01(f)(i)(B) hereof. "LC Documents" means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered thereunder, any application therefor, and any other agreements, instruments, guarantees or other documents (whether general in application or applicable only to such 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. "LC Outstandings" 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 all Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate LC Reimbursement Obligations at such time. EX-30 "LC Reimbursement Obligations" means, at any time with respect to any Letter of Credit, any unpaid obligation of the Borrower to reimburse the LC Agent for amounts theretofore paid by the LC Agent pursuant to a drawing under such Letter of Credit. "Letter of Credit" means (i) any letter of credit issued by the LC Agent for the account of the Borrower (or, as contemplated by Section 3.03 hereof, a Subsidiary of the Borrower) in accordance with the terms of Section 3.01 hereof and (ii) any Existing Letter of Credit. "LIBOR Base Rate" means, for the Interest Period for each Eurodollar Loan comprising part of the same borrowing (including conversions, extensions and renewals), a per annum interest rate determined by the Agent pursuant to the following formula: LIBOR Base Rate = Interbank Offered Rate 1 - LIBOR Base Rate Reserve Percentage "LIBOR Base Rate Reserve Percentage" means for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of Eurodollar Loans is determined), whether or not any Bank has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Bank. The LIBOR Base Rate shall be adjusted automatically on and as of the effective date of any change in the LIBOR Base Rate Reserve Percentage. "Loan Documents" means this Loan Agreement, the Revolving Credit Notes and the Money Market Notes. "Long Term Debt" means, at any time, all items which, in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis, would be classified as long term debt (including Subordinated Debt, purchase money Indebtedness, Indebtedness permitted under Section 10.01(a)(vi) hereof, and capitalized leases) on a consolidated balance sheet of the Borrower and its Subsidiaries. "Majority Banks" means, at any time, Banks which are then in material compliance with their obligations hereunder (as reasonably determined by the Agent) and holding in the aggregate more than 50% of (i) the Revolving Credit Loan Commitments at the time or (ii) if the Revolving Credit Loan Commitments have been terminated, the sum of (A) the aggregate unpaid principal amount of the Revolving Credit Notes at such time, plus (B) the aggregate unpaid principal amount of the Money Market Notes at such time, plus (C) the LC Outstandings at such time. EX-31 "Management Team" means the Executive Officers, presidents and vice presidents of the Borrower. "Material Plan" shall have the meaning given to said term in Section 11.01(h) hereof. "Money Market Loan" means a loan made pursuant to Section 4.01 hereof. "Money Market Note" or "Money Market Notes" means a promissory note or promissory notes, as the case may be, of the Borrower, executed and delivered as provided in Section 4.01(e) hereof. "Money Market Quote" means an offer by a Bank to make a Money Market Loan in accordance with Section 4.01(b) hereof. "Money Market Rate" means that fixed rate of interest equal to the rate quoted for such amounts and for such time periods specified by a Bank to the Borrower upon a request for a Money Market Quote pursuant to Section 4.01(b) hereof. "Multiemployer Plan" means an employee pension benefit plan within the meaning of Section 3(37) of ERISA to which a member of the Controlled Group is making, or accruing an obligation to make, contributions or has within the preceding 5 plan years made contributions, including for these purposes any Person which ceased to be a member of the Controlled Group during such 5 year period. "NationsBank" means NationsBank, N.A. (Carolinas) and its successors. "Net Income" means, for any period, net income after taxes of the Borrower and its Subsidiaries on a consolidated basis for such period, as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. "Operating Income" means, for any period, the sum of (i) the amount by which total operating revenues exceed total operating expenses for such period as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis and as reported in the related consolidated financial statements for such period of the Borrower and its Subsidiaries described in Sections 9.01(a)(i) and (b) hereof, plus (ii) consolidated cash income of the Borrower and its Subsidiaries for such period from investments in partnerships, joint venturers or similar investments permitted under Section 10.01(m) hereof, plus (iii) consolidated amortization expense with respect to intangible assets of the Borrower and its Subsidiaries for such period, all as determined in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. "PBGC" shall have the meaning given to said term in Section 9.01(w) hereof. "Person" means an individual, partnership, corporation, trust, unincorporated organization, association, joint venture or a government or agency or political subdivision thereof. "Plan" shall have the meaning given to said term in Section 9.01(w) hereof. EX-32 "Pro Forma Basis" means, with respect to any transaction, that such transaction shall be deemed to have occurred as of the first day of the twelve-month period ending as of the most recent fiscal quarter end of the Borrower preceding the date of such transaction with respect to which the Banks shall have received the financial information required to be delivered by Section 9.01(a) or (b) hereof, as applicable (such fiscal quarter end for purposes hereof being referred to as the "Applicable Quarter End"), for purposes of calculation of each of the financial covenants set forth in Section 10.01(p) and (q) hereof as of such Applicable Quarter End. As used herein, "transaction" shall mean (i) any incurrence, creation or assumption of Indebtedness as referred to in Section 10.01(a)(vi) hereof or (ii) any incurrence, creation or assumption of a Guaranty Obligation as referred to in Section 10.01(g)(iv) hereof. With respect to any such transaction regarding Indebtedness, or a Guaranty Obligation of Indebtedness, which has a floating or formula rate, the implied rate of interest for such Indebtedness for the applicable period for purposes of this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination. "Redemption Obligation" means (i) the contingent liability of the Borrower or any of its Subsidiaries with respect to cash redemption obligations relating to Capital Stock issued by the Borrower or any of its Subsidiaries to any officer, director, shareholder or other principal of any Subsidiary created or acquired after the Closing Date and (ii) the contingent liability described on Exhibit B attached hereto. "Reportable Event" shall have the meaning given to said term in Section 9.01(w) hereof. "Revolving Credit Loan" means a loan made pursuant to Sections 2.01 and 2.02 hereof. "Revolving Credit Loan Commitment", for each Bank, means the commitment of such Bank to make Revolving Credit Loans in a maximum principal amount equal to the amount set forth beside the name of such Bank on Exhibit A hereto. "Revolving Credit Note" or "Revolving Credit Notes" shall mean a promissory note or promissory notes, as the case may be, of the Borrower, executed and delivered as provided in Section 2.03 hereof. "Sale/Leaseback Transaction" shall have the meaning given to such term in Section 10.01(e) hereof. "Senior Subordinated Note Purchase Agreements" means a collective reference to (i) the agreement, as amended, in the form attached hereto as Schedule 1 whereby the Borrower has issued $25,000,000.00 of its 11.375% senior subordinated notes due June 1, 1997 and (ii) the agreement, as amended, in the form attached hereto as Schedule 2 whereby the Borrower has issued $30,000,000.00 of its 11.375% senior subordinated notes due August 1, 1998. "Standby Letter of Credit Fee" shall have the meaning assigned to such term in Section 3.01(f)(i)(A) hereof. EX-33 "Subordinated Debt" means (i) the indebtedness of up to $55,000,000.00 incurred by the Borrower pursuant to the terms of the Senior Subordinated Note Purchase Agreements, the repayment of which is subordinated to the repayment of the indebtedness of the Borrower to the Banks hereunder on terms described in the Senior Subordinated Note Purchase Agreements, and (ii) additional subordinated indebtedness incurred by the Borrower provided that (A) no Event of Default specified in Article XI hereof, nor any event which upon notice or lapse of time or both, would constitute such an Event of Default, exists immediately prior to or would exist immediately after such additional subordinated indebtedness is incurred and (B) all of the terms and conditions of such additional subordinated indebtedness (including the terms relating to the subordination of such indebtedness to the indebtedness of the Borrower hereunder) are consented to by the Majority Banks prior to the time such indebtedness is incurred. "Subsidiary" or "Subsidiaries" means any Person of which more than fifty percent (50%) of the equity interest in such Person at the time of computation is owned, directly or indirectly, by the Borrower or a Subsidiary of the Borrower. "Termination Date" shall mean August 10, 2000. "Total Assets" means, at any time, all items which would, in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis, be classified as assets (other than intangible assets) on a consolidated balance sheet of the Borrower and its Subsidiaries. "Unutilized Revolving Credit Loan Commitments" means, at any time, the excess of (i) the aggregate Revolving Credit Loan Commitments at such time over (ii) the sum of (A) the aggregate outstanding principal balance of the Revolving Credit Loans at such time, plus (B) the aggregate LC Outstandings at such time, plus (C) 50% of the aggregate outstanding principal amount of the Money Market Loans at such time. "U.S. currency" and "U.S." shall each mean freely transferable lawful money of the United States. "Voting Stock" means common stock of a corporation, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of the corporate directors (or Persons performing similar functions). 1.02 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. ARTICLE II REVOLVING CREDIT LOANS 2.01 Revolving Credit Loans. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Bank, severally and not jointly, agrees to make Revolving Credit Loans to the Borrower at any time or from time to time on or after the date hereof and until the Termination Date, in an aggregate principal amount at any time outstanding not EX-34 exceeding the amount of its then applicable Revolving Credit Loan Commitment; provided that, at no time shall (i) the sum of (A) the aggregate principal balance of all outstanding Revolving Credit Loans made by all of the Banks, plus (B) the aggregate LC Outstandings, plus (C) the aggregate principal balance of all outstanding Money Market Loans, exceed (ii) the aggregate Revolving Credit Loan Commitments of all of the Banks. The Borrower may borrow, repay and reborrow hereunder on or after the date hereof and prior to the Termination Date, subject to the terms, provisions and limitations set forth herein. 2.02 Borrowing Procedures. (a) Minimum Amounts. The Revolving Credit Loans made by the Banks on any one date shall be in a minimum aggregate principal amount of $1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof. Revolving Credit Loans shall be made ratably from the Banks in accordance with their respective Revolving Credit Loan Commitments; provided, however, that the failure of any Bank to make its Revolving Credit Loan shall not in itself relieve any other Bank of its obligation to lend hereunder. The initial Revolving Credit Loan by each Bank shall be made against delivery to such Bank of an appropriate Revolving Credit Note, payable to the order of such Bank, as referred to in Section 2.03 hereof. In the event any Bank shall fail to make a Revolving Credit Loan to the Borrower in accordance with the terms hereof, any other Bank may, but shall not be obligated to, make such Revolving Credit Loan to the Borrower. (b) Interest Rate Options. Each Revolving Credit Loan shall be either a CD Loan, a Eurodollar Loan or a Base Rate Loan (or a combination thereof) as the Borrower may request subject to and in accordance with this Section. Subject to other provisions of this Section and the provisions of Section 5.02 hereof, Revolving Credit Loans of more than one type may be outstanding at the same time. (c) Notice of Borrowing. Except for Revolving Credit Loans made pursuant to the terms of Section 3.01 hereof, the Borrower shall give the Agent prior written, telefax or telephonic notice, no later than the Business Day of the proposed borrowing in the case of a Base Rate Loan, no later than two Business Days prior to the Business Day of the proposed borrowing in the case of a CD Loan and no later than three Business Days prior to the Business Day of the proposed borrowing in the case of a Eurodollar Loan, of each borrowing under Section 2.01 hereof. In each case, such notice shall be irrevocable and shall specify the aggregate amount of the proposed borrowing and the date thereof (which shall be a Business Day). Such notice, to be effective, must be received by the Agent not later than 10:00 a.m. (or 1:00 p.m. with respect to a Eurodollar Loan), Charlotte, North Carolina time, on the Business Day specified for a borrowing consisting of a Base Rate Loan, on the second Business Day prior to the date specified for a borrowing consisting of a CD Loan and on the third Business Day prior to the date specified for a borrowing consisting of a Eurodollar Loan. Such notice shall specify whether the Revolving Credit Loan then being requested is to be (or what portion or portions thereof are to be) a Base Rate Loan, CD Loan or a Eurodollar Loan and, if such Revolving Credit Loan or any portion or portions thereof is to be a CD Loan or a Eurodollar Loan, the Interest Period with respect thereto. If no election is specified in such notice, such Revolving Credit Loan (or the portion thereof as to which no EX-35 election is specified) shall be a Base Rate Loan. The Agent shall promptly on the same day provide the Banks notice that it has received notice from the Borrower pursuant to this paragraph. On the borrowing date specified in such notice, each Bank shall make its ratable share of the borrowing available to the Borrower at Account No. 001-641-844 maintained at the offices of NationsBank, no later than 5:00 p.m., Charlotte, North Carolina time, in Federal or other immediately available funds. (d) Interest Period Limitations, etc. Notwithstanding any provision to the contrary in this Loan Agreement, the Borrower shall not in any notice of borrowing under this Section 2.02 request any CD Loan or any Eurodollar Loan which, if made, would result in an aggregate of more than nine separate CD Loans of any Bank or nine separate Eurodollar Loans of any Bank or nine separate CD Loans of any Bank and Eurodollar Loans of any Bank being outstanding hereunder at any one time. For purposes of the foregoing, (i) Revolving Credit Loans made ratably by the Banks pursuant to a discrete borrowing request shall be considered a single Revolving Credit Loan and (ii) Revolving Credit Loans of any single type having different Interest Periods, regardless of whether they commence or expire on the same date, shall be consid- ered separate Revolving Credit Loans. The Borrower may continue any CD Loan or Eurodollar Loan, or convert all or any part of any Base Rate Loans, CD Loan or Eurodollar Loans into Revolving Credit Loans of another type, in accordance with Section 5.02 hereof and subject to the limitations set forth therein. 2.03 Revolving Credit Notes. The Revolving Credit Loans by each Bank shall be evidenced by a Revolving Credit Note duly executed on behalf of the Borrower, dated the date hereof, in substantially the form of Exhibit C attached hereto, payable to the order of such Bank in a principal amount equal to the Revolving Credit Loan Commitment of such Bank. Each Revolving Credit Loan shall bear interest from the date of disbursement thereof on the outstanding principal balance thereof as set forth in Section 2.04 hereof. The aggregate unpaid principal amount of the Revolving Credit Loans of each Bank at any time shall be the principal amount owing on the Revolving Credit Note of such Bank at such time. The principal amount of each Revolving Credit Loan, as evidenced by a Revolving Credit Note, shall be due and payable on the Termination Date. All accrued and unpaid interest on the outstanding principal balance of each Revolving Credit Note shall be payable on each Interest Payment Date; provided that, if any such day is not a Business Day, such interest shall be payable on the next succeeding Business Day (unless, in case of a Eurodollar Loan, the same would fall in a succeeding month, in which case such principal shall be payable on the first preceding Business Day). All payments under the Revolving Credit Notes shall be made in accordance with Section 5.07 hereof. 2.04 Interest. (a) Subject to the provisions of Section 5.01 hereof, each Revolving Credit Loan which is a Base Rate Loan shall bear interest at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 days) equal to the Base Rate. Interest shall be payable on each Base Rate Loan quarterly on each Interest Payment Date, commencing with the first of such dates to occur after the date of such Base Rate Loan, and on the Termination Date or the date of conversion of such Base Rate Loan to a Revolving Credit Loan of a different type. EX-36 (b) Subject to the provisions of Section 5.01 hereof, each Revolving Credit Loan which is a CD Loan shall bear interest at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the CD Rate plus the Applicable Percentage. Interest shall be payable on each CD Loan on each applicable Interest Payment Date and at maturity or the date of conversion of such CD Loan to a Revolving Credit Loan of a different type. The Agent shall determine the applicable CD Rate for each Interest Period at 10:00 a.m., or as soon as practicable thereafter, on the date when such determination is to be made in respect of such Interest Period and shall promptly and on the same day notify the Borrower and the Banks of the CD Rate so determined. Such determination shall be conclusive absent manifest error. (c) Subject to the provisions of Section 5.01 hereof, each Revolving Credit Loan which is a Eurodollar Loan shall bear interest at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the LIBOR Base Rate plus the Applicable Percentage. Interest shall be payable on each Eurodollar Loan on each applicable Interest Payment Date and at maturity or the date of conversion of such Eurodollar Loan to a Revolving Credit Loan of a different type. The Agent shall determine the applicable LIBOR Base Rate for each Interest Period at 11:00 a.m., London time, or as soon as practicable thereafter, on the date when such determination is to be made in respect of such Interest Period and shall promptly and on the same day notify the Borrower and the Banks of the LIBOR Base Rate so determined. Such determination shall be conclusive absent manifest error. 2.05 Commitment Fee; Commitment Reductions. (a) Commitment Fee. The Borrower agrees to pay in immediately available funds to the Agent (without offset or counterclaim), for the account of the Banks, in consideration of the Revolving Credit Loan Commitments hereunder, on the last day of each June, September, December and March, commencing with the first such date after the date hereof, and on the date of any reduction or termination of the Revolving Credit Loan Commitments of the Banks hereunder, a per annum fee (the "Commitment Fee") equal to the Applicable Percentage for the Commitment Fee (computed on the basis of the actual number of days elapsed in a year of 360 days) on the average daily Unutilized Revolving Credit Loan Commitments during the preceding period or quarter. The Commitment Fee shall commence to accrue as of the date hereof, and shall cease to accrue on the earlier of the Termination Date or the termination of the Revolving Credit Loan Commitments of the Banks hereunder. (b) Commitment Reductions. (i) The Borrower may in full permanently terminate, or from time to time in part permanently reduce, the Revolving Credit Loan Commitments, in each case upon at least three Business Days' prior written, telefax or telephonic notice to the Agent. Reductions of the Revolving Credit Loan Commitments pursuant to the terms of Section 3.01 or Section 4.01 hereof shall not be considered permanent reductions of the Revolving Credit Loan Commitments. Each partial reduction of the Revolving Credit Loan Commitments shall be in an aggregate principal amount of $5,000,000.00 or in an integral multiple of $1,000,000.00 in excess thereof. The Agent shall promptly on the same day provide the Banks notice that it has received notice from the Borrower pursuant to this subparagraph. EX-37 (ii) In the case of any termination or reduction of the Revolving Credit Loan Commitments pursuant to subparagraph (i) above, immediately after giving effect to such termination or reduction, (A) the sum of (1) the aggregate principal balance of all outstanding Revolving Credit Loans made by all of the Banks, plus (1) the aggregate LC Outstandings, plus (3) the aggregate principal balance of all outstanding Money Market Loans, shall not exceed (B) the aggregate Revolving Credit Loan Commitments of all of the Banks. Each reduction in the aggregate Revolving Credit Loan Commitments pursuant to subparagraph (i) above shall be made ratably among the Banks in accordance with each Bank's Revolving Credit Loan Commitment. ARTICLE III LETTERS OF CREDIT 3.01 Letters of Credit. (a) General Provisions. Subject to the terms and conditions and relying upon the representations and warranties set forth herein and in the LC Documents, if any, executed in connection with the issuance of each Letter of Credit and any other terms and conditions which the LC Agent may reasonably require, the LC Agent will, at any time and from time to time from the Closing Date until the day five (5) Business Days prior to the Termination Date, issue such Letters of Credit as the Borrower may request in a form acceptable to the LC Agent; provided, however, that (i) at no time shall the LC Outstandings exceed $150,000,000.00, (ii) no Letter of Credit shall be issued hereunder if, after giving effect to the issuance of such Letter of Credit, (A) the sum of (1) the aggregate principal balance of all outstanding Revolving Credit Loans made by all of the Banks, plus (2) the aggregate LC Outstandings, plus (3) the aggregate principal balance of all outstanding Money Market Loans, would exceed (B) the aggregate Revolving Credit Loan Commitments of all of the Banks, (iii) no Letter of Credit shall be issued hereunder if it would support any tax exempt obligations of the applicable account party, (iv) the stated expiry date of each Letter of Credit shall be a date falling on or before the Termination Date, (v) the aggregate undrawn amount of issued and outstanding standby Letters of Credit having an expiration date later than the date one year from the date of issuance thereof shall not at any time exceed $20,000,000.00 and (vi) the expiration date of any documentary Letter of Credit shall be not more than 180 days from the date of issuance thereof. Subject to the limitations set forth in the preceding sentence, the Borrower shall be permitted to request the issuance of annually renewable standby Letters of Credit. Each Letter of Credit shall comply with the related LC Documents. The issuance and expiration dates of each Letter of Credit shall be a Business Day. (b) Requests for Letters of Credit. The request for the issuance of a Letter of Credit shall be submitted in writing to the LC Agent not later than 10:00 a.m., Charlotte, North Carolina time, three (3) Business Days prior to the requested date of issuance and shall be accompanied by such documents as are specified therein and in the related LC Documents. Upon issuance of a Letter of Credit, the LC Agent shall promptly and on the same day notify the Banks of the amount and terms thereof. EX-38 (c) Participations of Banks in Letters of Credit. (i) Upon the issuance of each Letter of Credit, each Bank shall automatically acquire a participation in the liability of the LC Agent under such Letter of Credit in an amount equal to such Bank's pro rata share (based on such Bank's portion of the total Revolving Credit Loan Commitments) of such liability and shall thereby absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the LC Agent and discharge when due in accordance with subsection (d) below, its pro rata share of the LC Agent's liability under such Letter of Credit. (ii) On the Closing Date, (A) each Bank shall automatically acquire a participation in the liability of the LC Agent under each Existing Letter of Credit in an amount equal to such Bank's pro rata share (based on such Bank's portion of the total Revolving Credit Loan Commitments) of such liability and shall thereby absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the LC Agent and discharge when due in accordance with subsection (d) below, its pro rata share of the LC Agent's liability under such Existing Letters of Credit and (B) each Existing Letter of Credit shall be deemed for all purposes of this Loan Agreement and the other Loan Documents to be a Letter of Credit. (d) Reimbursement of Drawings. In the event of any drawing under any Letter of Credit, the LC Agent will promptly and on the same day notify the Borrower. The Borrower shall reimburse the LC Agent on the date of drawing under any Letter of Credit for the full amount of the related LC Reimbursement Obligation (with proceeds of a Revolving Credit Loan as provided above, or otherwise) in accordance with Section 5.07 hereof. Unless the Borrower shall immediately notify the LC Agent of its intent to otherwise reimburse the LC Agent any drawing under a Letter of Credit shall be considered a request by the Borrower for a Revolving Credit Loan in an amount equal to such drawing pursuant to the terms hereof. Each Revolving Credit Loan made pursuant to the foregoing sentence shall be a Base Rate Loan (unless and until later converted to a Revolving Credit Loan of a different type pursuant to the terms hereof) and shall be applied to satisfy the related LC Reimbursement Obligation. If the Borrower shall fail to reimburse the LC Agent as provided hereinabove, the related LC Reimbursement Obligation shall bear interest at a per annum rate equal to the Base Rate plus two percent (2%). The Borrower's reimbursement obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of set-off, counterclaim or defense to payment the Borrower (or any other applicable account party as permitted by Section 3.03 hereof) may claim or have against the LC Agent, the Agent, the Banks, the beneficiary of the Letter of Credit drawn upon or any other Person, including without limitation any defense based on any failure of the Borrower (or any other applicable account party as permitted by Section 3.03 hereof) to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit or any related LC Documents. The LC Agent will promptly notify the other Banks of the amount of any unpaid LC Reimbursement Obligation, and each Bank shall promptly pay to the Agent for the account of the LC Agent the amount of such Bank's pro rata share of such unpaid LC Reimbursement Obligation by means of a Revolving Credit Loan made pursuant to this Section 3.01(d) or otherwise. Such payment shall be made on the day such notice is received by EX-39 such Bank from the LC Agent 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 5:00 p.m., Charlotte, North Carolina time, on the Business Day next succeeding the day such notice is received. Each Bank's obligation to make such payment to the LC Agent, and the right of the LC Agent to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be made without any offset, abatement, withholding or reduction whatsoever. Simultaneously with the making of each such payment by a Bank to the LC Agent, such Bank shall, automatically and without any further action on the part of the LC Agent or such Bank, acquire a participation in an amount equal to such payment (excluding the portion of such payment constituting interest owing to the LC Agent) in the related LC Reimbursement Obligation, in the interest thereon and in the related LC Documents, and shall have a claim against the Borrower with respect thereto. In allocating to the Banks interest payments received from the Borrower on the Revolving Credit Loans, the Agent is hereby directed to consider the date of reimbursements to the Agent for the account of the LC Agent as described in this Section 3.01(d). (e) Indemnity. The Borrower hereby agrees to indemnify and hold harmless the LC Agent, each other Bank, the 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 Letter of Credit; provided that the Borrower shall not be required to indemnify the Indemnitees for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, (i) caused by the willful misconduct or gross negligence of any Indemnitee in determining whether a request presented under any Letter of Credit complied with the terms of such Letter of Credit or (ii) caused by the LC Agent's failure to pay under any Letter of Credit after the presentation to it of a request strictly complying with the terms and conditions of such Letter of Credit (unless such payment is prohibited by any law, regulation, court order or decree). The provisions of this Section 3.01(e) shall remain operative and in full force and effect regardless of the expiration of this Loan Agreement. (f) Letter of Credit Fees. (i) (A) The Borrower agrees to pay (without offset or counterclaim) to the Agent, for the account of the Banks, a per annum fee (the "Standby Letter of Credit Fee") equal to the Applicable Percentage for the Standby Letter of Credit Fee on the maximum amount available to be drawn from time to time under each outstanding Standby Letter of Credit. This Standby Letter of Credit Fee shall be payable quarterly in arrears on the last day of each March, June, September and December, and on the Termination Date. (B) The Borrower agrees to pay (without offset or counterclaim) to the Agent, for the account of the LC Agent, a per annum fee (the "LC Agent Standby Letter of Credit Facing Fee") of 10 basis points on the maximum amount available to be drawn from time to time under each outstanding Standby Letter of Credit. This LC Agent Standby Letter of Credit Facing Fee shall be payable EX-40 quarterly in arrears on the last day of each March, June, September and December, and on the Termination Date. (ii) The Borrower agrees to pay to the Agent (without offset or counterclaim) for the account of the Banks (A) an issuance fee equal to twenty-five (25) basis points on the face amount of each documentary Letter of Credit and (B) a drawing fee equal to fifteen (15) basis points on the amount of each drawing under any documentary Letter of Credit. The issuance fee described in subclause (A) above shall be payable on the date of issuance of each documentary Letter of Credit, and the drawing fee described in subclause (B) above shall be payable on each date of drawing under a documentary Letter of Credit. (iii) In addition to the fees payable pursuant to clauses (i) and (ii) above, the Borrower hereby agrees to pay to the Agent, for the account of the LC Agent, (A) a negotiation fee equal to ten (10) basis points on the amount of each drawing under a documentary Letter of Credit and (B) the customary charges from time to time of the LC Agent with respect to the issuance, amendment, transfer, administration, cancellation and conversion of, and drawings under, any Letters of Credit. (iv) Any fee paid in connection with a Letter of Credit (including an Existing Letter of Credit) other than the fees and other amounts payable pursuant to subsection (f)(i)(B) or (f)(iii) above, shall be shared by the LC Agent with the Banks pro rata in accordance with Section 5.07 hereof; provided, however, the Banks shall not be entitled to any such fee for an Existing Letter of Credit which has been deemed to be earned during the period prior to June 19, 1987; provided further, any such fee shall be deemed to be earned evenly throughout the period for which it is paid regardless of when it was paid. 3.02 Additional Costs. In the event of the imposition hereafter of, or changes hereafter in, the reserve or capital allocation requirements promulgated by the Board of Governors of the Federal Reserve System of the United States or any public body or governmental agency having jurisdiction over any Bank with respect to the issuance of or the participation in letters of credit or the maintenance of loan commitments, the Borrower will pay to the Agent for the benefit of such Bank such additional amount or amounts as will compensate such Bank for the effect of such reserve or capital allocation requirements as determined by such Bank on the basis of such reserve or capital allocation requirements applicable to it, which determination shall be conclusive absent manifest error. The provisions of this Section shall survive termination of this Loan Agreement. 3.03 Account Parties. Notwithstanding anything to the contrary set forth in this Loan Agreement, including without limitation Section 3.01(a) hereof, a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of any Subsidiary of the Borrower, provided that notwithstanding such statement, the Borrower shall be the actual account party for all purposes of this Loan Agreement for such Letter of Credit and such statement shall not affect the Borrower's obligations hereunder with respect to such Letter of Credit. EX-41 ARTICLE IV MONEY MARKET LOANS 4.01 Money Market Loans. The Banks agree that the Borrower may at any time or from time to time on or after the date hereof and until the Termination Date request the Banks to make Money Market Loans in an aggregate principal amount at any time outstanding not exceeding the aggregate Revolving Credit Loan Commitments of all the Banks; provided, however, that the aggregate principal amount of the outstanding Money Market Loans of any Bank (individually or taken together with the outstanding Revolving Credit Loans of such Bank) may (but shall not be required to) exceed such Bank's Revolving Credit Loan Commitment. The Banks may, but shall have no obligation to, make Money Market Loans and the Borrower may, but shall have no obligation to, accept Money Market Quotes, pursuant to the following terms and conditions: (a) Money Market Loan Requests. The Borrower may at any time and from time to time on or after the Closing Date and until the Termination Date make a written, telefax or telephonic request to all of the Banks for a Money Market Loan. To be effective, such request must be received by each of the Banks by such time as determined by each such Bank in accordance with such Bank's customary practices (in any event not to be later than 12:00 noon Eastern Standard (or Daylight) Time) on the date of the requested borrowing and must specify (i) that a Money Market Loan is requested, (ii) the amount of such Money Market Loan, which amount shall be not less than $1,000,000.00 or an integral multiple of $100,000.00 in excess thereof and (iii) the Interest Period for such Money Market Loan. (b) Money Market Quotes. Upon receipt of a request by the Borrower for a Money Market Loan, each Bank may, in its sole discretion, submit a Money Market Quote containing an offer to make a Money Market Loan in an amount up to the amount specified in the related request for Money Market Loans. Such Money Market Quote shall be submitted to the Borrower by telephone notice by such time as determined by such Bank in accordance with such Bank's customary practices (in any event not to be later than 1:00 p.m. Eastern Standard (or Daylight) Time), on the date of the requested Money Market Loan. Money Market Quotes so made shall be irrevocable. Each Money Market Quote shall specify (i) the date of the proposed Money Market Loan, (ii) the maximum and minimum principal amounts of the Money Market 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 the Borrower), (iii) the applicable Money Market Rate, and (iv) the applicable Interest Period. (c) Acceptance of Money Market Quotes. The Borrower may, before such time as determined by the applicable Bank in accordance with such Bank's customary practices (in any event until 2:00 p.m. Eastern Standard (or Daylight) Time, on the date of the requested Money Market Loan, accept any Money Market Quote by giving the applicable Bank and the Agent telephone notice EX-42 (immediately confirmed in writing) of (i) the Bank or Banks whose Money Market Quote(s) is/are accepted, (ii) the principal amount of the Money Market Quote(s) so accepted and (iii) the Interest Period of the Money Market Quote(s) so accepted. The Borrower may accept any Money Market Quote in whole or in part; provided, however, that (a) the principal amount of each Money Market Loan may not exceed the maximum amount offered in the Money Market Quote and may not be less than the minimum amount offered in the Money Market Quote, (b) the principal amount of each Money Market Loan may not exceed the total amount requested pursuant to subsection (a) above, (c) the Borrower shall not accept a Money Market Quote made at a particular Money Market Rate if it has decided to reject a Money Market Quote made at a lower Money Market Rate and (d) if the Borrower shall accept a Money Market Quote or Quotes made at a particular Money Market Rate but the amount of such Money Market Quote or Quotes shall cause the total amount of Money Market Quotes to be accepted by the Borrower to exceed the total amount requested pursuant to subsection (a) above, then the Borrower shall accept a portion of such Money Market Quote or Quotes in an amount equal to the total amount requested pursuant to subsection (a) above less the amount of other Money Market Quotes accepted with respect to such request, which acceptance, in the case of multiple Money Market Quotes at the same Money Market Rate, shall be made pro rata in accordance with each such Money Market Quote at such Money Market Rate. Money Market Quotes so accepted by the Borrower shall be irrevocable. (d) Funding of Money Market Loans. Upon acceptance by the Borrower pursuant to subsection (c) above of all or a portion of any Bank's Money Market Quote, such Bank shall, before such time as determined by such Bank in accordance with such Bank's customary practices, on the date of the requested Money Market Loan, make such Money Market Loan available to the Agent in Federal or other immediately available funds. Upon receipt of such funds, the Agent will promptly make such funds available to the Borrower at Account No. 001-641-844 maintained at the offices of NationsBank; provided, however, that if on the date of such Money Market Loan the Borrower is to repay all or any part of an outstanding Revolving Credit Loan, then the Agent shall apply such Money Market 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 the Borrower. (e) Money Market Notes. The Money Market Loans of each Bank shall be evidenced by a single Money Market Note duly executed on behalf of the Borrower, dated the date hereof, in substantially the form of Exhibit D attached hereto, payable to the order of such Bank in the original principal amount of up to $375,000,000.00 with interest on the unpaid principal amount from time to time outstanding of each Money Market Loan evidenced thereby as prescribed in subparagraph (h). Each Bank is hereby authorized to record the date and amount of each Money Market Loan made by such Bank, the maturity date thereof, EX-43 the date and amount of each payment of principal thereof and interest thereon and the interest rate with respect thereto on the schedule annexed to and constituting a part of its Money Market Note, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded; provided, however, that neither the failure to make any such recordation nor any error in such recordation shall not affect the obligations of the Borrower hereunder or under such Money Market Note. Each Money Market Loan shall bear interest for the period from and including the date of such Money Market Loan on the principal amount thereof from time to time outstanding at the applicable Money Market Rate determined as provided in subparagraph (h), and such interest shall be payable as specified in subparagraph (h). (f) Repayment of Money Market Loans. The Borrower shall repay to each Bank which has made a Money Market Loan on the last day of the Interest Period for such Money Market Loan the then unpaid principal amount of such Money Market Loan. The Borrower may not prepay any Money Market Loan unless such prepayment is accompanied by payment of amounts specified in Section 5.06 hereof. Money Market Loans may not be converted into Revolving Credit Loans of a different type. (g) Interest. The Borrower shall pay interest to each Bank on the unpaid principal amount of each Money Market Loan from and including the date of such Money Market Loan to but excluding the stated maturity date thereof, at the applicable Money Market Rate for such Money Market Loan (calculated on the basis of a year of 360 days), payable on the last day of the Interest Period therefor. (h) Limitation on Number of Money Market Loans. The Borrower shall not request a Money Market Loan if, assuming the maximum amount of Money Market Loans so requested is borrowed as of the date of such request, (i) the sum of (A) the aggregate principal balance of all outstanding Revolving Credit Loans made by all of the Banks, plus (B) the aggregate LC Outstandings, plus (C) the aggregate principal balance of all outstanding Money Market Loans, would exceed (ii) the aggregate Revolving Credit Loan Commitments of all of the Banks. (i) Change in Procedures for Requesting Money Market Loans. The Borrower and the Banks hereby agree that, notwithstanding any other provision to the contrary contained in this Loan Agreement, at the written direction of the Agent in its sole discretion to the Borrower and the Banks, all further requests by the Borrower for Money Market Loans shall be made by the Borrower to the Banks through the Agent in accordance with such procedures as shall be prescribed by the Agent and acceptable to the Borrower and the Banks. EX-44 ARTICLE V ADDITIONAL PROVISIONS REGARDING REVOLVING CREDIT LOANS AND MONEY MARKET LOANS 5.01 Additional Interest Rate Provisions. (a) Default Rate. Upon the occurrence and during the continuance of any Event of Default, the Borrower shall on demand from time to time pay interest on the principal balance of the Revolving Credit Loans and the Money Market Loans and, to the extent permitted by law, on overdue payments of interest and any other amounts payable hereunder or under any of the other Loan Documents up to the date of actual payment (after as well as before judgment): (i) in the case of principal of or interest on a Revolving Credit Loan or Money Market Loan, at a rate determined by the Agent to be 2% per annum plus the rate which would otherwise be payable under Section 2.04 or 4.01(g) hereof, as applicable; and (ii) in the case of any other amount payable hereunder or under any of the other Loan Documents (other than amounts referred to in clause (i) or (ii) above), at a rate 2% per annum plus the Base Rate. (b) Inability to Determine LIBOR Base Rate. If prior to the first day of any Interest Period for any Eurodollar Loan, the Agent shall have determined (which determination shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Base Rate for such Interest Period, the Agent shall give telecopy or telephonic notice thereof to the Borrower and the Banks as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Revolving Credit Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Loans shall be converted to or continued as Base Rate Loans and (z) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right to convert CD Loans or Base Rate Loans to Eurodollar Loans. (c) Inability to Determine CD Rate. If prior to the first day of any Interest Period for any CD Loan, the Agent shall have determined (which determination shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the CD Rate for such Interest Period, the Agent shall give telecopy or telephonic notice thereof to the Borrower and the Banks as soon as practicable thereafter. If such notice is given (x) any CD Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Revolving Credit Loans that were to have been converted on the first day of such Interest Period to or continued as CD Loans shall be converted to or continued as Base EX-45 Rate Loans and (z) any outstanding CD Loans shall be converted, on the first day of such Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Agent, no further CD Loans shall be made or continued as such, nor shall the Borrower have the right to convert Eurodollar Loans or Base Rate Loans to Eurodollar Loans. 5.02 Conversion and Continuation of Revolving Credit Loans. The Borrower shall have the right, at any time, upon prior written, telefax or telephonic notice to the Agent (which notice shall be irrevocable and, to be effective, must be received by the Agent not later than 10:00 a.m., Charlotte, North Carolina time, in the case of Base Rate Loans, on the Business Day of any conversion, in the case of CD Loans, on the second Business Day preceding the date of any continuation or conversion, and in the case of Eurodollar Loans, on the third Business Day preceding the date of any continuation or conversion), (i) to continue any CD Loan or Eurodollar Loan or portion thereof into a subsequent Interest Period and (ii) to convert any Revolving Credit Loan (but not a Money Market Loan) or portion thereof into a Revolving Credit Loan (but not a Money Market Loan) of a different type, subject to the following: (a) no Event of Default shall have occurred and be continuing at the time of such continuation or conversion, and the representations and warranties set forth in Article VIII hereof shall be true and correct in all material respects on and as of the date of such continuation or conversion with the same effect as though such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties expressly relate to an earlier date; (b) if less than all Revolving Credit Loans at the time outstanding shall be continued or converted, such continuation or conversion shall be made pro rata among the Banks in accordance with the respective principal amounts of the Revolving Credit Loans held by the Banks immediately prior to such continuation or conversion and the notice given to the Banks by the Borrower shall specify the aggregate amount of Revolving Credit Loans to be continued or converted; (c) in the case of a continuation or conversion of less than all Revolving Credit Loans, the aggregate principal amount of Revolving Credit Loans continued or converted shall not be less than $1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof; (d) each conversion shall be effected by each Bank by applying the proceeds of the new Base Rate Loan, CD Loan or Eurodollar Loan, as the case may be, to the Revolving Credit Loan (or portion thereof) being converted, and accrued interest on the CD Loan or Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion; (e) if the new Revolving Credit Loan made in respect of a conversion shall be a CD Loan or Eurodollar Loan, the first Interest Period with respect thereto EX-46 shall commence on the date of conversion; (f) no Revolving Credit Loan may be converted to a CD Loan or a Eurodollar Loan less than thirty (30) days or one (1) month, respectively, before the Termination Date; (g) no Interest Period shall be selected by the Borrower for a Revolving Credit Loan converted to or continued as a CD Loan or a Eurodollar Loan if such Interest Period is not available to the Borrower pursuant to the terms of the definition of "Interest Period" set forth in Section 1.01 and/or Section 5.01(b) or (c) hereof, as the case may be; (h) a CD Loan or Eurodollar Loan may be converted to another type of Revolving Credit Loan only on the last day of an Interest Period; (i) each request for a CD Loan or Eurodollar Loan or continuation thereof which shall fail to state an applicable Interest Period shall be deemed to be a request for an Interest Period of a thirty (30) day duration with respect to a CD Loan and of a one (1) month duration with respect to a Eurodollar Loan; (j) Money Market Loans may not be converted into Revolving Credit Loans of any type and Revolving Credit Loans may not be converted into Money Market Loans; and (k) no more than nine separate CD Loans or nine separate Eurodollar Loans or nine separate CD Loans and Eurodollar Loans shall be outstanding hereunder at any one time, it being understood that, for purposes of the foregoing, (i) Revolving Credit Loans made ratably by the Banks pursuant to a discrete borrowing request shall be considered a single Revolving Credit Loan and (ii) Revolving Credit Loans of any single type having different Interest Periods, regardless of whether they commence or expire on the same date, shall be considered separate Revolving Credit Loans. In the event that the Borrower shall (i) not give notice to continue any Eurodollar Loan or CD Loan into a subsequent Interest Period, (ii) not give notice to convert any such Revolving Credit Loan into a Revolving Credit Loan of the other type or (iii) be prevented from continuing or converting any Eurodollar Loan or CD Loan pursuant to the terms of this Section 5.02, such Revolving Credit Loan (unless repaid) shall automatically become a Base Rate Loan at the expiration of the then current Interest Period. 5.03 Prepayments. (a) The Borrower shall have the right at any time and from time to time to prepay any Base Rate Loan, in whole or in part, without premium or penalty, upon prior written, telefax or telephonic notice to the Agent no later than 10:00 a.m., Charlotte, North Carolina time, on the Business Day of the proposed prepayment; provided, however, that each such partial prepayment shall be in the aggregate principal amount of at least $1,500,000.00 (or in an integral multiple of $100,000.00 in excess EX-47 thereof) or the balance of such Revolving Credit Loan, if less. (b) The Borrower shall have the right to prepay any Eurodollar Loan, in whole or in part, upon at least three Business Days' prior written, telefax or telephonic notice to the Agent; provided, however, that (i) each such partial prepayment shall be in the aggregate principal amount of at least $1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and (ii) no such prepayment made before the last day of the Interest Period in effect for such Revolving Credit Loan shall be permitted unless accompanied by payment of amounts specified in Section 5.06 hereof. (c) The Borrower shall have the right to prepay any CD Loan, in whole or in part upon at least three Business Days' prior written, telefax or telephonic notice to the Agent; provided, however, that (i) each such partial prepayment shall be in the aggregate principal amount of at least $1,500,000.00 or in an integral multiple of $100,000.00 in excess thereof and (ii) no such prepayment made before the last day of the Interest Period in effect for such Loan shall be permitted unless accompanied by payment of amounts specified in Section 5.06 hereof. (d) The Borrower may not prepay any Money Market Loan unless such prepayment is accompanied by payment of amounts specified in Section 5.06 hereof. (e) Each notice of prepayment shall specify the prepayment date and the principal amount to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Revolving Credit Loan by the amount stated therein. All prepayments under this Section shall be shared pro rata by the Banks (except in the case of prepayment of a Money Market Loan) and shall be accompanied by accrued interest on the principal amount being prepaid to the date of prepayment. Amounts prepaid under the Revolving Credit Notes pursuant to this Section prior to the Termination Date shall be available to be reborrowed from the Banks under this Loan Agreement in accordance with the terms hereof. 5.04 Additional Costs. (a) The cost to any Bank of making or maintaining any CD Loans or Eurodollar Loans, of issuing or maintaining, or participating in, any Letters of Credit or of maintaining its Revolving Credit Loan Commitment may fluctuate as a result of imposition hereafter of, or changes hereafter in, the reserve requirements promulgated by the Board of Governors of the Federal Reserve System of the United States. Accordingly, the Borrower shall pay to each Bank such additional amount or amounts as will compensate it for the effect of such reserve requirements applicable to it, which determination shall be conclusive absent manifest error. For purposes hereof, the aforesaid reserve requirements shall include any reserve on Eurocurrency Liabilities as defined by Regulation D of said Board at the ratios provided in such Regulation D from time to time. It is hereby agreed that Eurodollar Loans made hereunder shall be deemed to constitute Eurocurrency Liabilities (as defined in such Regulation D). Such Bank shall promptly refund any amounts received by it pursuant to this Section 5.04(a) that were erroneously billed to the Borrower together with interest thereon at the Federal Funds Rate. The provisions of this subsection shall survive termination of this Loan Agreement. EX-48 (b) In the event that after the date hereof any change in applicable law or regulations or in the interpretation or administration thereof (including, without limitation, any request, guideline or policy not having the force of law) by any authority charged with the administration or interpretation thereof shall occur which shall: (i) subject any Bank to any tax with respect to any CD Loan, Eurodollar Loan, Money Market Loan or Letter of Credit (including participations therein) (other than any tax on the overall net income of such Bank imposed by the United States of America or by the jurisdiction in which such Bank has its principal office or political subdivision or taxing authority therein); or (ii) change the basis of taxation of any payment to any Bank of principal of or interest on any CD Loan, Eurodollar Loan, Money Market Loan or LC Reimbursement Obligation or fees and other amounts payable hereunder, or any combination of the foregoing; or (iii) impose, modify or deem applicable any reserve, deposit or similar requirement against any assets held by, deposits with or for the account of or loans or commitments by an office of such Bank as it relates to CD Loans, Eurodollar Loans, Money Market Loans, Letters of Credit (including participations therein) or the Revolving Credit Loan Commitment of such Bank; or (iv) impose upon such Bank any other condition with respect to the CD Loans, Eurodollar Loans, Money Market Loans or Letters of Credit (including participations therein), or upon such Bank any other condition with respect to this Loan Agreement as it relates to CD Loans, Eurodollar Loans, Money Market Loans or Letters of Credit (including participations therein) or the Revolving Credit Loan Commitment of such Bank; and the result of any of the foregoing shall be to increase the cost to such Bank of making or maintaining any CD Loan, Eurodollar Loan or Money Market Loan, of issuing or maintaining, or participating in, any Letter of Credit or of maintaining its Revolving Credit Loan Commitment or to reduce the amount of any payment (whether of principal, interest or otherwise) received or receivable by such Bank, or to require such Bank to make any payment in connection with any CD Loan, Eurodollar Loan, Money Market Loan or Letter of Credit (or participation therein), in each case by or in an amount which such Bank in its sole reasonable judgment shall deem material, then and in each such case the Borrower agrees to pay to such Bank, as provided in paragraph (c) below (but without duplication of the payments required under paragraph (a) above), such amounts as shall be necessary to compensate such Bank for such cost, reduction or payment; provided, however, that if any Bank shall request compensation under this Section 5.04(b) with respect to any CD Loan or Eurodollar Loan, the Borrower may, at its option and upon written notice to the Banks, elect to convert such Revolving Credit Loan of such Bank into a Base Rate Loan upon the payment by the Borrower of the increased costs described above incurred prior to such conversion and any amount owing in respect of Section 5.06 hereof, it being understood that (A) for purposes of Sections 5.02 and 5.03 hereof, such Base EX-49 Rate Loan, until the expiration of the Interest Period of the CD Loan or Eurodollar Loan so converted into a Base Rate Loan, shall be subject to prepayment or conversion only at such times and on such conditions as the Revolving Credit Loan from which it was converted and (B) upon such increased costs being eliminated, or reduced by an amount deemed sufficient by the Borrower, such Base Rate Loan may be reconverted into a CD Loan or Eurodollar Loan, as the case may be, having an Interest Period expiring on the same date as the CD Loan or Eurodollar Loan previously converted into such Base Rate Loan; provided further, however, that if the result of any the foregoing shall be to decrease the cost to any Bank of making or maintaining any CD Loan, Eurodollar Loan or Money Market Loan, of issuing or maintaining or participating in any Letter of Credit by a material amount, then such Bank will credit to the Borrower an amount equal to such decreased costs. Promptly after actual notice to any Bank that a change referred to in this paragraph has occurred, such Bank will give notice of such occurrence to the Borrower and the Agent. Each Bank agrees that it will promptly refund any amounts received by it pursuant to this Section 5.04(b) that were erroneously billed to the Borrower together with interest thereon at the Federal Funds Rate. The provisions of this subsection shall survive termination of this Loan Agreement. (c) Each Bank shall promptly deliver to the Borrower from time to time one or more certificates setting forth the amounts due to such Bank under paragraph (a) or (b) above, the reserve requirements or changes as a result of which such amounts are due and the manner of computing such amounts. Each such certificate shall be conclusive in the absence of manifest error. The Borrower shall pay to each Bank the amounts shown as due on any such certificate within 10 days after its receipt of the same. No failure on the part of any Bank to demand compensation under paragraph (a) or (b) above on any one occasion shall constitute a waiver of its right to demand such compensation on any other occasion with respect to any other event. The protection of this Section shall be available to each Bank regardless of any possible contention of the invalidity or inapplicability of any law, regulation or other condition which shall give rise to any demand by such Bank for compensation hereunder; provided, however, if such law, regulation or other condition giving rise to such demand is determined to be invalid or inapplicable, the Bank will promptly refund any amount erroneously billed to the Borrower together with interest thereon at the Federal Funds Rate. 5.05 Change in Circumstances. (a) Notwithstanding anything to the contrary contained elsewhere in this Loan Agreement, if any change after the date hereof in any law or regulation or in the interpretation thereof by any governmental authority charged with the administration thereof shall make it unlawful for a Bank to make or maintain a Eurodollar Loan or to effect to its obligations as contemplated hereby with respect to a Eurodollar Loan, then, by written notice to the Borrower, such Bank may: (i) declare that Eurodollar Loans will not thereafter be made by such Bank hereunder, whereupon the Borrower shall be prohibited from requesting Eurodollar Loans from such Bank hereunder unless such declaration is subsequently withdrawn; and EX-50 (ii) require that all outstanding Eurodollar Loans made by it be converted to Base Rate Loans, whereupon all of such Eurodollar Loans shall be automatically converted to Base Rate Loans as of the effective date of such notice as provided in paragraph (b) below (notwithstanding the provisions of Section 5.07 hereof but subject to the provisions of Section 5.06 hereof). (b) For purposes of this Section 5.05, a notice to the Borrower by any Bank pursuant to paragraph (a) above shall be effective with respect to outstanding Eurodollar Loans, if lawful, on the last day of the then current Interest Period; in all other cases, such notice shall be effective on the date of receipt by the Borrower. 5.06 Indemnity. The Borrower shall reimburse each Bank on demand for any actual out-of-pocket loss incurred by it in the reemployment of the funds released by any prepayment or conversion of any CD Loan, Eurodollar Loan or Money Market Loan required or permitted by any other provision of this Loan Agreement if such Revolving Credit Loan or Money Market Loan is prepaid or converted other than on the last day of any Interest Period for such Revolving Credit Loan or Money Market Loan or upon any failure by the Borrower to borrow or convert or continue any Revolving Credit Loan or Money Market Loan after giving notice thereof. Determinations by any Bank under this Section 5.06 shall be conclusive absent manifest error. The provisions of this Section shall remain operative and in full force and effect regardless of the expiration of this Loan Agreement. 5.07 Payments. Except as required in connection with the payment of interest on Revolving Credit Loans made in connection with drawings under Letters of Credit as described in Section 3.01(d) hereof, all payments and prepayments of principal, interest and fees (other than the agent's fee payable to the Agent and other than the fees and other amounts payable to the LC Agent pursuant to Section 3.01(f)(iii) hereof) in respect of the Revolving Credit Loans and the Letters of Credit shall be made pro rata among the Banks in accordance with the then outstanding principal amount of the Revolving Credit Notes (or in accordance with the Revolving Credit Loan Commitments if there are no amounts then outstanding under the Revolving Credit Notes). Except as otherwise expressly provided in Article V hereof, all payments by the Borrower hereunder (other than payments in respect of Money Market Loans) and under the Revolving Credit Notes shall be made to the Agent at its offices at Charlotte, North Carolina, for the account of each Bank in dollars in Federal or other immediately available funds by 11:00 a.m. Charlotte, North Carolina time, on the date on which such payment shall be due. All payments received by the Agent for the account of a Bank shall be promptly on the same day remitted by the Agent to such Bank. Upon receipt by a Bank of more than its pro rata share of any such principal or interest payment (after taking into account any adjustment necessary to compensate the LC Agent for the situation referred to in the first sentence of this Section 5.07), whether voluntary or involuntary, or of any proceeds of collateral securing the Revolving Credit Loans, it is hereby agreed among the Banks and the Borrower that the Bank receiving such excess payment or proceeds (the "Receiving Bank") shall be obligated to pay to the other Banks for application to such Banks' Revolving Credit Notes, an amount necessary to reduce the outstanding principal and interest balances on such Banks' EX-51 Revolving Credit Notes to the balances that would be outstanding on such Banks' Revolving Credit Notes if the Receiving Bank had not received more than its pro rata share of such payment; provided, however, that in the event any amount paid by any Receiving Bank to any other Bank pursuant to the immediately preceding sentence is rescinded or must otherwise be returned by the Receiving Bank, each other Bank shall, upon request of the Receiving Bank, repay to the Receiving Bank the amount so paid by the Receiving Bank to such Bank, with interest for the period commencing on the date such payment is returned by the Receiving Bank until the date the Receiving Bank receives such repayment at the Federal Funds Rate. Interest in respect of any Revolving Credit Loan or Money Market Loan hereunder shall accrue from and including the date of such Revolving Credit Loan or Money Market Loan to but excluding the date on which such Revolving Credit Loan or Money Market Loan is paid in full. All payments of principal and interest under the Money Market Notes shall be in accordance with the terms of Article IV hereof. Notwithstanding anything to the contrary contained in this Section 5.07 or elsewhere in this Loan Agreement or any other of the Loan Documents, each Bank agrees with respect to all payments, whether voluntary or involuntary, on account of any Money Market Loan of such Bank received by such Bank during any period following the occurrence of an event or condition which is, or upon lapse of a cure period specified in this Loan Agreement would constitute, an Event of Default and until such event or condition shall have been cured (as determined by the Agent), that such payments shall be shared pro rata among the Banks in accordance with the then outstanding principal amounts of the Revolving Credit Notes and the Money Market Notes and each Bank's pro rata share of the LC Outstandings at such time. The portion of any such payment referred to in the preceding sentence required pursuant to such preceding sentence to be allocated to the aggregate undrawn amount of issued and outstanding Letters of Credit shall be paid to the Agent and, subject to the immediately succeeding sentence, held by the Agent as cash collateral in an interest bearing account for the benefit of the Banks until such time, if ever, as the event or condition referred to above shall have been cured (as determined by the Agent), at which time such proceeds shall be distributed by the Agent to the Banks on a pro rata basis based on the then outstanding principal amounts of the Revolving Credit Notes and the Money Market Notes. If, at any time that the Agent is holding any such proceeds on account of issued and outstanding Letters of Credit, any amounts are drawn under any such Letter of Credit, then the Agent shall distribute the proceeds so held by the Agent to the extent of such drawing to the Banks based on the pro rata shares of the Banks in the related LC Reimbursement Obligation. To the extent that aggregate proceeds held by the Agent on account of issued and outstanding Letters of Credit at any time exceed the aggregate undrawn amount of Letters of Credit at such time, the Agent shall distribute the proceeds so held by the Agent to the extent of such excess to the Banks on a pro rata basis based on the then outstanding principal amounts of the Revolving Credit Notes and the Money Market Notes. All payments and prepayments of principal, interest and fees in respect of the Revolving Credit Loans, the Money Market Loans and the Letters of Credit shall be without deduction for or on account of any present or future taxes, duties or other charges levied or imposed by the nation of Canada or any political subdivision or taxing authority thereof. EX-52 5.08 Capital Adequacy. In the event that any Bank shall have determined that the adoption hereafter of or any change hereafter in any applicable law, rule, regulation or guideline regarding capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or by any court, or compliance by such Bank (or any lending office of such Bank) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Bank's capital or on the capital of such Bank's holding company as a consequence of its obligations hereunder to a level below that which such Bank or such Bank's holding company could have achieved but for such adoption, change or compliance (taking into consideration such Bank's policies or the policies of such Bank's holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank or such Bank's holding company for any such reduction suffered. Within a reasonable time after making a request for such additional amount hereunder, such Bank will furnish to the Borrower a statement certifying the amount of such reduction and describing the event giving rise to such reduction, which determination shall be conclusive absent manifest error. Failure on the part of such Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Bank's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital in such period or in any other period. The protection of this Section 5.08 shall be available to the Banks regardless of any possible conflict or invalidity or inapplicability of the law, regulation or condition which shall have been imposed. The provisions of this Section shall remain operative and in full force and effect regardless of the expiration of this Loan Agreement. ARTICLE VI INITIAL CONDITIONS PRECEDENT 6.01 Conditions Precedent to Initial Extensions of Credit. The obligations as of the Closing Date of the Banks to make any Revolving Credit Loans or Money Market Loans and of the LC Agent to issue Letters of Credit, are subject to the conditions precedent that the Agent shall have received on or before such day the following, in form and substance satisfactory to the Agent: (a) fully executed copies of this Loan Agreement (including exhibits), the Revolving Credit Notes and the Money Market Notes; (b) copies of the articles or certificates of incorporation or other charter documents of the Borrower certified by the corporate secretary or an assistant secretary of the Borrower to be true and correct as of the Closing Date; EX-53 (c) a copy of the bylaws of the Borrower certified by the corporate secretary or an assistant secretary of the Borrower to be true and correct as of the Closing Date; (d) resolutions of the directors of the Borrower certified by an officer of the Borrower as of the Closing Date, approving and adopting the documents described in subparagraph (a) above and authorizing the execution, delivery and performance thereof; (e) a copy of the certificates of good standing, existence or its equivalent with respect to the Borrower certified as of a recent date by the State of Delaware; (f) a certificate of the corporate secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign the documents described in subparagraph (a) above on behalf of the Borrower; (g) the favorable opinion of Messrs. McCausland, Keen & Buckman, counsel to the Borrower, substantially in the form of Exhibit E hereto; (h) repayment of all obligations of the Borrower and Airgas Holdings, Inc., and termination of the lending commitments, under the Loan Agreement dated as of November 8, 1994, as amended, among the Borrower and Airgas Holdings, Inc., as co-borrowers, NationsBank and The Bank of New York ("BNY"), as lending banks, NationsBank as agent for such lending banks and BNY as administrative agent for such lending banks. (i) evidence satisfactory to the Agent of the cancellation of the guarantees by any of the Subsidiaries of the Borrower of the obligations of the Borrower under each of the Senior Subordinated Note Purchase Agreements. (j) such other information and documents as the Agent may reasonably request. ARTICLE VII CONDITIONS OF ALL EXTENSIONS OF CREDIT Except with respect to Revolving Credit Loans made pursuant to the terms of Section 3.01(d) hereof, the obligations of the Banks to make any Revolving Credit Loans or Money Market Loans and of the LC Agent to issue any Letters of Credit, are subject to the satisfaction of the conditions precedent set forth in Article VI hereof on the Closing Date and to the satisfaction of the following further conditions: 7.01 Conditions of all Extensions of Credit. In the case of each Revolving Credit Loan (other than a Revolving Credit Loan made pursuant to the terms of Section 3.01(d) hereof) or Money Market Loan to be made hereunder and each Letter of Credit to be issued hereunder: EX-54 (a) proper notice of such Revolving Credit Loan, Money Market Loan or Letter of Credit, as the case may be, shall have been given in accordance with Section 2.02(c), Section 3.01(b), or Section 4.01(a)-(c) hereof, as applicable; (b) the representations and warranties set forth in Article VIII hereof shall be true and correct in all material respects on and as of the date of such Revolving Credit Loan, Money Market Loan or Letter of Credit, as the case may be, with the same effect as though such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties expressly relate to an earlier date; and (c) at the time of and immediately after giving effect to each such Revolving Credit Loan (other than Revolving Credit Loans made pursuant to the terms of Section 3.01(d) hereof), Money Market Loan or Letter of Credit, as the case may be, no Event of Default, nor any event which upon notice or lapse of time or both would constitute an Event of Default, shall have occurred and be continuing. 7.02 Commitment Limitations; Reaffirmation. In the case of each Revolving Credit Loan to be made hereunder, each Money Market Loan to be made hereunder, each Letter of Credit to be issued hereunder, immediately after giving effect to such Revolving Credit Loan, Money Market Loan or Letter of Credit, as the case may be, (i) the sum of (A) the aggregate principal balance of all outstanding Revolving Credit Loans made by all of the Banks, plus (B) the aggregate LC Outstandings, plus (C) the aggregate principal balance of all outstanding Money Market Loans, shall not exceed (ii) the aggregate Revolving Credit Loan Commitments of all of the Banks. Each borrowing hereunder and each issuance of a Letter of Credit hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such borrowing, issuance or creation, as the case may be, as to the matters specified in Sections 7.01(b) and (c) hereof and each borrowing hereunder that is a Revolving Credit Loan or a Money Market Loan and each issuance of a Letter of Credit hereunder also shall be deemed to be a representation and warranty by the Borrower on the date of such borrowing, issuance or creation, as the case may be, as to the matters specified in Section 7.02 hereof. ARTICLE VIII REPRESENTATIONS AND WARRANTIES 8.01 Representations and Warranties. The Borrower represents and warrants that: (a) Corporate Organization. Each of the Borrower and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation and is duly authorized and qualified to carry on its business in the manner now being conducted by it in states in which failure to so qualify would or might have a material adverse effect on the business or operations of such Person. EX-55 (b) Corporate Power and Authority to Own Properties, etc. Each of the Borrower and its Subsidiaries has the legal power and authority to own its properties and assets and to carry on its businesses as now being conducted and as contemplated by this Loan Agreement and the other Loan Documents. (c) Corporate Power and Authority with Respect to Loan Documents. The Borrower has the power and authority to execute, deliver and perform the Loan Documents. (d) Validity of Loan Documents. When executed and delivered, the Loan Documents will be legal, valid and binding obligations of the Borrower and will be enforceable in accordance with their respective terms. (e) Execution, Delivery and Performance of Loan Documents. The execution, delivery and performance of the Loan Documents: (i) have been duly authorized by all requisite corporate action of the Borrower required for the lawful creation and issuance thereof; (ii) do not violate any material provision of law, any order of any court or other agency of government or the corporate charter, certificate of incorporation or by-laws of the Borrower, or any provisions of any indenture, agreement or other instrument to which the Borrower or its properties or assets are or will become bound; (iii) will not be in conflict with, result in a breach of or constitute an event of default or an event which, upon notice or lapse of time, or both, would constitute such an event of default under any indenture, agreement or other instrument to which the Borrower is a party; (iv) do not and will not result in the creation of any lien on any assets of the Borrower. (f) Title of Properties. Except as set forth in Exhibit F attached hereto and except for minor defects in title that do not reduce in any material respect the value of such property, each of the Borrower and its Subsidiaries has good and marketable title in fee simple to all of its real property and good title to all of its other property, and none of such property is subject to any mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever except as may be permitted hereunder or contemplated hereby. (g) Subsidiaries. All of the direct and indirect Subsidiaries of the Borrower as of the Closing Date are set forth in Exhibit G attached hereto. (h) Interests in Other Persons. Except as set forth in Exhibit H attached hereto, neither the Borrower nor any of its Subsidiaries owns any interest in any Person. (i) Financial Statements. The audited consolidated balance sheet, income statement and statement of cash flows of the Borrower and its Subsidiaries prepared as of March 31, 1995, copies of each EX-56 of which have been furnished to each Bank, fairly present the assets, liabilities and financial condition of the Borrower and its Subsidiaries as at the date thereof, all in accordance with Generally Accepted Accounting Principles, and since such date to and including the date of this Loan Agreement there has been no material adverse change in such condition or in the operations of the Borrower and its Subsidiaries taken as a whole. (j) Litigation. Except as set forth in Exhibit I attached hereto, there is no pending or, to the Borrower's knowledge following due inquiry, threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, specifically including without limitation any federal, state or local environmental agency, (i) which would, if adversely determined, materially adversely affect the financial condition or operations of the Borrower and its Subsidiaries taken as a whole, or (ii) challenging the execution, delivery, validity or enforceability of any of the Loan Documents. (k) Compliance with Laws. Each of the Borrower and its Subsidiaries is in material compliance with all statutes, governmental regulations, and applicable judgments, specifically including without limitation all federal, state, and local requirements relating to protection of health or the environment in connection with the operation of such corporation's business. (l) Environmental Matters. During the time in which the Borrower or any of its Subsidiaries has owned any real property, no Hazardous Materials were disposed of on, under or about such real property in such a manner as would give rise to a liability which would have a material adverse effect on the Borrower and its Subsidiaries taken as a whole, and that, to the extent that the Borrower or any of its Subsidiaries generated, stored or transported Hazardous Materials, such activities were done in such a manner as would not give rise to a liability for failure to comply with any applicable federal, state and local laws, ordinances and regulations which would have a material adverse effect on the Borrower and its Subsidiaries taken as a whole. For purposes hereof, "Hazardous Materials" shall be defined as "hazardous substances" or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.; Hazardous Materials Transportation Act, 42 U.S.C. Section 6901 et seq.; and those substances defined as "hazardous wastes" in any state or local laws, rules or regulations applicable to the Borrower or any of its Subsidiaries. (m) Governmental Regulations, etc. None of the Borrower or its Subsidiaries is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Revolving Credit Loan or Money Market Loan nor any Letter of Credit will be used whether directly or indirectly, incidentally or ultimately (i) to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock, or to refund Indebtedness incurred for such purpose, or (ii) for any purpose which entails a violation of, or which is inconsistent with, the provisions of the regulations of the Board of Governors of the Federal Reserve System, including without limitation Regulation G, U, T or X thereof. If requested by the Agent, each Borrower agrees that it will (and will cause each of EX-57 its Subsidiaries to) furnish to the Banks a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in said Regulation U. (n) Patents, Licenses and Trademarks. Each of the Borrower and its Subsidiaries possesses all necessary patents, licenses, trademarks, trademark rights, tradenames, tradename rights and copyrights to conduct its business without known conflict with any patent, license, trademark, tradename or copyrights of any other Person. (o) MEPP. Each of the Borrower and its Subsidiaries is in compliance with the Multi-Employer Pension Plan Amendments Act of 1980 ("MEPP") and has no liability from pension contributions pursuant to MEPP. (p) "Investment" or "Holding" Company. None of the Borrower or its Subsidiaries is an "investment company" as that term is defined in, or otherwise subject to regulation under, the Investment Company Act of 1940. None of the Borrower or its Subsidiaries is a "Holding Company" as that term is defined in, and is not otherwise subject to regulation under, the Public Utility Holding Company Act of 1935. (q) Judgments; Defaults. None of the Borrower or its Subsidiaries is (i) a party to any judgment, order, decree or any agreement or instrument or subject to corporate restrictions materially adversely affecting its business, properties or assets, operation or condition (financial or otherwise); or (ii) in default (except where waived) in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which such corporation is a party, which default would or might have a material adverse effect on the business, properties or assets of the Borrower and its Subsidiaries as a whole. (r) Taxes. Each of the Borrower and its Subsidiaries has filed all United States federal tax returns and all other tax returns that are required to be filed and has paid all taxes due pursuant to said returns or pursuant to any assessment received by such corporation, except such taxes, if any, as are being contested in good faith and as to which adequate reserves in accordance with Generally Accepted Accounting Principles have been provided. No tax liens have been filed, and no claims are being asserted with respect to any such taxes. The charges, accruals and reserves on the books of each of the Borrower and its Subsidiaries in respect of any taxes or other governmental charges are reasonably adequate. (s) ERISA. (i) Each of the Borrower and its Subsidiaries is in compliance in all material respects with those provisions of ERISA and the regulations and public interpretations thereunder which are applicable to such corporation. EX-58 (ii) No Reportable Event (as defined in ERISA) has occurred and is continuing with respect to any Plan. (iii) No proceedings have been instituted, or, to the knowledge of the Borrower, planned, to terminate any Plan or to cause a trustee to be appointed to administer any Plan. (iv) Neither the Borrower, any other member of the Controlled Group, nor any duly-appointed administrator of a Plan has instituted or intends to institute proceedings to withdraw from any Multiemployer Plan. (v) Each Plan has been maintained and funded in all material respects with its terms and with the provisions of ERISA applicable thereto. (t) Full Disclosure. The information, exhibits and reports furnished by the Borrower to the Banks in connection with the negotiation of the Loan Documents did not, taken as a whole, contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading. (u) Governmental Consent. No consent, approval or authorization of, or filing, registration or qualification with, any governmental agency, authority, instrumentality or regulatory body on the part of the Borrower is required in conjunction with the execution, delivery or performance by the Borrower, or for the validity or enforceability, of the Loan Documents. ARTICLE IX AFFIRMATIVE COVENANTS 9.01 Affirmative Covenants. The Borrower covenants and agrees with the Banks and the Agent that, so long as this Loan Agreement shall remain in effect or any Letter of Credit shall be outstanding or the principal of or interest on any Revolving Credit Note, Money Market Note or LC Reimbursement Obligation or any other expense or amount payable hereunder remains unpaid, and until the Revolving Credit Loan Commitments are terminated, unless the Majority Banks shall otherwise consent in writing, it will and will cause each of its Subsidiaries to: (a) Annual Financial Information. (i) As soon as practical and in any event not later than 90 days after the end of each fiscal year ending after the Closing Date, deliver to each of the Banks a financial report of the Borrower and all of its Subsidiaries including a balance sheet of the Borrower and all of its Subsidiaries as at the end of such fiscal year, and the notes thereto, and the related statements of income and retained earnings and the notes thereto and of cash flows for such fiscal year, prepared on a consolidated and consolidating basis setting forth in each case comparative financial statements for the corresponding date or period in the preceding year, all prepared in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis and containing, with respect to such consolidated financial reports an unqualified opinion of KPMG Peat Marwick, or other independent certified public accountants selected by the Borrower and acceptable to the Banks. EX-59 (ii) As soon as practical and in any event not later than June 30 of each fiscal year, deliver to each of the Banks projections of profit and loss statements, balance sheets and cash flow reports for the Borrower and all of its Subsidiaries on a consolidated basis for such fiscal year. (b) Quarterly Financial Information. As soon as practical and in any event not later than 60 days after the end of each of the first three quarters of each fiscal year of the Borrower deliver to each of the Banks a financial report of the Borrower and all of its Subsidiaries including a balance sheet of the Borrower and all of its Subsidiaries as at the end of such quarterly period and the related statements of income and retained earnings and of cash flows for the quarter then ended and for the period from the beginning of the current fiscal year to the end of such quarter, prepared on a consolidated and consolidating basis and setting forth in each case comparative financial statements for the corresponding date or period in the preceding year, all prepared in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis and certified by the chief financial officer or other Executive Officer of the Borrower (acting for the Borrower and not as an individual) as presenting fairly the financial condition and the results of operations of the Borrower and all of its Subsidiaries. (c) Financial Information Concerning Acquired Companies. As soon as practical and in any event not later than 90 days after the end of any fiscal quarter during which there occurs an acquisition of a company permitted by Section 10.01(h)(iv) hereof for a purchase price greater than 10% of Book Net Worth as at the quarter end immediately preceding the date of such acquisition, to make available to any Bank upon its request therefor (i) historical financial information consisting of a balance sheet of such acquired company prepared as of a recent date and income statements of such company for the two immediately preceding fiscal years and (ii) a projected income statement of the Borrower, its Subsidiaries and the acquired company, prepared on a consolidated basis, for the twelve-month period immediately following such acquisition. (d) Officer's Compliance Certificate. Together with each delivery of the financial reports required by Section 9.01(a)(i) and (b) hereof, deliver to each of the Banks a statement signed by the chief financial officer or other Executive Officer of the Borrower (acting for the Borrower and not as an individual) substantially in the form of Exhibit J hereto, setting forth (i) that, to the best of his knowledge, the Borrower has kept, observed, performed and fulfilled each and every agreement (including without limitation any covenant incorporated herein by reference pursuant to Section 10A.01 hereof) binding on it contained in the Loan Documents (and containing calculations demonstrating compliance by the Borrower and its Subsidiaries with the financial covenants set forth in Section 10.01(p), (q) and (r) hereof as at such quarter end) and is not at the time in default in the keeping, observance, performance or fulfillment of any of the terms, provisions and conditions of any of the Loan Documents and (ii) that no Event of Default, nor any event, which upon notice or lapse of time or both, would constitute an Event of Default, has occurred, or if such Event of Default exists or would occur as the case may be, stating the nature thereof, the period of existence thereof and what action the Borrower proposes to take with respect thereto. EX-60 (e) Stockholder and SEC Reports. Promptly upon becoming available, deliver to each Bank a copy of all financial statements, reports, notices and proxy statements sent by the Borrower or any of its Subsidiaries to stockholders, and a copy of all regular, periodic and special reports filed by the Borrower or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission ("SEC") or any governmental authority succeeding to any or all of the functions of the SEC. (f) Other Information. Promptly, from time to time, deliver to the Banks such information regarding its (and its Subsidiaries') operations, business affairs and financial condition as the Banks may reasonably request. The Banks are hereby authorized to deliver a copy of any such financial information delivered hereunder to the Banks to any regulatory authority having jurisdiction over any of the Banks pursuant to any request therefor. (g) Primary Depository. Use any Bank as its primary depository. (h) Fiscal Year. For the purpose of financial reporting maintain its fiscal year as one ending on March 31. (i) Use of Loan Proceeds. Use the proceeds of the Revolving Credit Loans and Money Market Loans for the purposes set forth in RECITAL A hereof. (j) Maintenance of Properties. Maintain all properties and assets used or useful in the conduct of its businesses in good working order and condition and make all needed repairs, replacements, betterments, improvements, and renewals as are necessary to conduct its business in accordance with prudent business practices. (k) Preservation of Existence, etc. Except to the extent otherwise provided in Section 10.01(f) hereof, do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, trademarks, tradenames, material rights, franchises and licenses. (l) Compliance with Laws; Payment of Taxes. (i) Comply with or contest in good faith all statutes, governmental regulations and applicable judgments, specifically including without limitation all federal, state and local environmental laws, rules, and regulations, and (ii) pay all taxes, assessments, governmental charges, claims for labor, supplies, rent and any other obligations which, if unpaid, might become a lien against any of its property except (A) liabilities being contested in good faith and by appropriate proceedings and against which reserves in accordance with Generally Accepted Accounting Principles have been established and (B) taxes that are due but not yet payable. (m) Environmental Matters. (i) If the failure to do so would have a material adverse effect on the Borrower or any of its Subsidiaries, conduct and complete all investigations, studies, sampling, and testing and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials on, from, or affecting its real property (A) in accordance with all applicable federal, state, and local laws, regulations, rules, and policies, (B) to the satisfaction of the Banks, and (C) in accordance with the orders and directives of all federal, state, EX-61 and local governmental authorities, and (ii) defend, indemnify, and hold harmless the Banks, the Agent, their employees, agents, officers, affiliates and directors, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs, and expenses (including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs, and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to (A) the presence, disposal, release, or threatened release of any Hazardous Materials which are on, from, or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise in or on its real property; (B) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials on, from or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise in or on its real property; (C) any lawsuit brought or threatened, settlement reached, or government order relating to Hazardous Materials on, from or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise in or on its real property; and/or (D) any violation of laws, orders, regulations, requirements, or demands of governmental authorities, or any policies or requirements of the Banks, which are based upon or in any way related to Hazardous Materials on, from or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise in or on its real property. (n) Indemnity. Defend, indemnify and hold harmless the Banks, the Agent, their employees, agents, officers, affiliates and directors, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses (including without limitation attorney and consultant fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to any acquisition permitted by Section 10.01(h)(iv), (v) or (vi) hereof including, without limitation, all claims of the seller or sellers of any acquired company. (o) Insurance. At all times keep its insurable properties insured to such extent and against such risks, including, without limitation, general comprehensive liability insurance, product liability insurance, worker's compensation and other insurance required by law, as is customary with companies of comparable size in the same or similar businesses. The coverage as of the Closing Date of each of the Borrower and its Subsidiaries is outlined as to carrier, policy number, expiration date, type and amount in Exhibit K hereto. (p) Patents, Licenses and Trademarks. Preserve and protect its patents, licenses, trademarks, trademark rights, tradenames, tradename rights and copyrights. (q) Books and Records. Keep true books of records and accounts in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis, and in which full, true and correct entries will be made of all of its dealings and transactions. (r) Inspection. Permit any officer of any of the Banks designated in writing by such Bank, to visit and inspect any of its properties, corporate books and financial records at such times as EX-62 such Bank may reasonably request upon reasonable notice and during ordinary business hours. (s) Discussions with Accountants. Upon the written request of any of the Banks, authorize any officer of such Bank to discuss its financial statements and financial affairs at any time from time to time with the independent certified public accountants of the Borrower and its Subsidiaries upon reasonable notice and during ordinary business hours. (t) Notice of Defaults. Deliver to the Banks forthwith, upon any Executive Officer of the Borrower obtaining knowledge of an Event of Default or an event which would constitute an Event of Default but for the requirement that notice be given or time elapse or both, a certificate of the chief financial officer or other Executive Officer of the Borrower specifying the nature and period of existence thereof and what action the Borrower proposes to take with respect thereto. (u) Payment of Agent's Fee. Pay the fee to the Agent as set forth in agent's fee agreement of even date herewith. (v) Notices of Certain Events. Notify the Agent in writing within five (5) Business Days after any Executive Officer of the Borrower knows or has reason to know of the occurrence of any of the following with respect to the Borrower or any of its Subsidiaries: (i) the pendency or commencement of any material action, suit or proceeding at law or in equity wherein the opposing party either seeks damages of more than $250,000.00 in excess of applicable insurance coverage or damages of more than $3,000,000.00 in any instance; (ii) any event or condition which shall constitute an event of default under any other agreement for borrowed money in excess of $500,000.00; (iii) any levy of an attachment, execution or other process against a significant part of its assets; or (iv) any change in any existing agreement or contract which would likely materially adversely affect the business or affairs, financial or otherwise, of the Borrower and its Subsidiaries taken as a whole. The Agent shall promptly notify the Banks of any notice received by the Agent pursuant to this Section 9.01(v). (w) ERISA. (i) Comply with the applicable provisions of the Employee Retirement Income Security Act of 1974 as amended ("ERISA") where the failure so to comply might reasonably be expected materially to impair the right of the Borrower or any of its Subsidiaries to carry on business as now being conducted or to affect materially adversely the financial condition of such corporation and (ii) furnish to the Banks, (A) as soon as possible, and in any event within five (5) Business Days after any Executive Officer of the Borrower knows or has reason to know that any Reportable Event with respect to any Plan has occurred, a statement of the chief financial officer of the Borrower setting forth details as to such Reportable Event and the action that the EX-63 Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event, if any, given to the Pension Benefit Guaranty Corporation or any successor thereto ("PBGC"), and (B) promptly after the receipt or filing thereof, a copy of any notice the Borrower or any of its Subsidiaries may receive from the PBGC relating to the intention of PBGC to terminate any Plan or to appoint a trustee to administer any Plan and all reports and notices relating to any Reportable Event or Prohibited Transaction (as defined in ERISA). For purposes hereof, (1) "Plan" shall mean any employee plan which is subject to the provisions of Title IV of ERISA and which is maintained for employees of the Borrower or any of its Subsidiaries or any other trade or business which is under common control with the Borrower or any of its Subsidiaries within the meaning of Section 414(c) of the Internal Revenue Code of 1986, as amended, or the regulations thereunder; and (2) "Reportable Event" shall mean any Reportable Event as defined in Section 4043 of ERISA or the regulations thereunder for which the 30-day notice requirement has not been waived by PBGC. (x) Further Assurances. Execute any and all further documents, agreements and instruments, and take all further actions which may be required under applicable law, or which the Majority Banks may reasonably request, in order to effectuate the transactions contemplated by this Loan Agreement. The provisions of subsections (m)(ii) and (n) of this Section 9.01 shall remain operative and in full force and effect regardless of the expiration of this Loan Agreement. ARTICLE X NEGATIVE COVENANTS 10.01 Negative Covenants. The Borrower covenants and agrees with the Banks and the Agent that, so long as this Loan Agreement shall remain in effect or any Letter of Credit shall be outstanding or the principal of or interest on any Revolving Credit Note, Money Market Note or LC Reimbursement Obligation or any other expense or amount payable hereunder remains unpaid, and until the Revolving Credit Loan Commitments are terminated, without the prior written consent of the Majority Banks, it will not nor will it enter into any binding agreement to or permit any Subsidiary to: (a) Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except (i) the Revolving Credit Loans, the Letters of Credit (and the related LC Reimbursement Obligations) and the Money Market Loans; (ii) existing Indebtedness set forth in Exhibit L hereto (and renewals, refinancings or extensions (but not any increases in the outstanding principal amount) thereof on terms and conditions no less favorable to the applicable obligor than the terms and conditions of such existing Indebtedness); EX-64 (iii) unsecured Indebtedness of any Domestic Subsidiary, provided that at no time shall (A) the sum of (1) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under clause (ii) above to the extent not backed or guaranteed by a Letter of Credit issued hereunder, plus (2) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under this clause (iii), plus (3) the aggregate outstanding principal amount of all Guaranty Obligations of Domestic Subsidiaries permitted under Section 10.01(g) hereof, plus (4) the aggregate outstanding amount of investments permitted under Section 10.01(h)(vi) hereof, plus (5) the aggregate outstanding principal amount of all loans and advances permitted under Section 10.01(k)(iii) hereof, plus (6) the aggregate outstanding amount of investments permitted under Section 10.01(m) hereof, exceed (B) 25% of Book Net Worth as of the end of the then immediately preceding fiscal quarter; (iv) unsecured Indebtedness of any Canadian Subsidiary to a Canadian Lender, provided that at no time shall (A) the sum of (1) the aggregate outstanding principal amount of all Indebtedness of Canadian Subsidiaries permitted under clause (ii) above, plus (2) the aggregate outstanding principal amount of all Indebtedness of Canadian Subsidiaries permitted under this clause (iv), plus (3) the aggregate outstanding principal amount of all Guaranty Obligations of Canadian Subsidiaries permitted under Section 10.01(g) hereof, exceed (B) $50,000,000.00; (v) unsecured Indebtedness of any Subsidiary of the Borrower to the extent that such Indebtedness is backed or guaranteed by a Letter of Credit issued hereunder; and (vi) in addition to the Indebtedness otherwise permitted by this Section 10.01(a), other Indebtedness (other than Guaranty Obligations) hereafter incurred, created or assumed by the Borrower provided that (A) the loan documentation with respect to such Indebtedness shall not contain covenants or default provisions more restrictive than the covenants and default provisions contained in the Loan Documents and (B) on the date of incurrence, creation or assumption of such Indebtedness after giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of the Borrower or any of its Subsidiaries, no Event of Default or event or condition which, with the giving of notice or lapse of time or both, would constitute such an Event of Default, would exist hereunder. (b) Liens. Incur, create, assume or permit to exist any mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets, now or hereafter owned, other than (i) liens in favor of the Agent, on behalf of the Banks, arising after the Closing Date; (ii) existing liens as set forth in Exhibit F hereto; (iii) any unfiled lien of materialmen, mechanics, workmen, warehousemen, carriers, landlords or repairmen; provided that if such a lien shall be perfected and shall EX-65 not be contested in good faith, it shall be discharged of record immediately by payment, bond or otherwise; (iv) tax liens for taxes which are not yet due and payable or which are being contested in good faith and by appropriate proceedings and against which reserves in accordance with Generally Accepted Accounting Principles have been established; (v) condemnation actions; (vi) easements, rights-of-way, restrictions and other similar encumbrances that do not reduce in any material respect the value of the applicable real property; and (vii) purchase money liens securing purchase money Indebtedness provided that (A) any such lien shall attach to the asset(s) financed concurrently with or within 90 days after the acquisition thereof; (B) the total of all Indebtedness secured by such liens for the Borrower and its Subsidiaries taken together shall not exceed an aggregate principal amount of $5,000,000.00 at any one time outstanding; (C) the Indebtedness secured by any such lien when incurred shall not exceed the purchase price of the asset(s) financed; and (D) the Indebtedness secured by any such lien shall not be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing. (c) Acquisitions, Consolidations, Mergers, etc. Acquire, consolidate, merge or combine with any Person; provided, however, (i) the Borrower and its Subsidiaries may acquire, by purchase, consolidation, merger, combination or otherwise, the companies described in Section 10.01(h)(iv) or (v) hereof so long as the Borrower or such Subsidiary is the surviving corporation; (ii) the Borrower may merge with any Subsidiary so long as the Borrower is the surviving corporation; and (iii) any Subsidiary of the Borrower may merge with another Subsidiary of the Borrower. (d) Asset Sales, etc. Sell, transfer or otherwise dispose of any of its properties and assets (including without limitation any Capital Stock in any of its Subsidiaries) except: (i) sales or leases in the ordinary course of business; and (ii) other non-ordinary course of business sales (including Sale/Leaseback Transactions permitted by Section 10.01(e) hereof) provided that (A) the aggregate net book value of the assets sold by the Borrower or any of its Subsidiaries in all such transactions in any fiscal year does not exceed 10% of Total Assets as of the end of the immediately preceding fiscal year, (B) the aggregate net book value of the assets sold by the Borrower or any of its Subsidiaries in all such transactions after the Closing Date does not exceed 25% of Total Assets as of the end of the fiscal year immediately preceding the then current fiscal year, (C) the sale price for any asset sold in any such transaction shall not be less than the fair market value of such asset, (D) each such transaction involving assets having EX-66 a net book value of $5,000,000.00 or more shall be on an arms- length basis with a wholly independent third party and (E) no Event of Default nor any event or condition which, with the giving of notice or lapse of time or both, would constitute an Event of Default, shall have occurred and be continuing at the time of any such sale or shall result upon giving effect thereto; provided, however, that each of the Borrower and its Subsidiaries may enter into leases as lessor in the ordinary course of such Person's business. (e) Sale/Leasebacks. Enter into any arrangement (a "Sale/Leaseback Transaction"), directly or indirectly, with any Person whereby the Borrower or any of its Subsidiaries shall sell or transfer any property, real or personal, whether now owned or hereafter acquired, and used or useful in such Person's business, and thereafter rent or lease such property or other property which such Person intends to use for substantially the same purpose or purposes as the property being sold or transferred; provided that the Borrower and its Subsidiaries may enter into any Sale/Leaseback Transaction if (i) such transaction would be permitted under Section 10.01(d) hereof; and (ii) the net cash proceeds of each such transaction are applied immediately to repay or prepay the Borrower's obligations hereunder and under the Revolving Credit Notes (which repayments and/or prepayments shall not reduce the Revolving Credit Loan Commitments of the Banks hereunder). (f) Dissolution, etc. Seek or permit dissolution, liquidation, or termination in whole or in part of the Borrower or any Subsidiary, provided, however that any Subsidiary of the Borrower of which 85% or more of the Capital Stock is owned by the Borrower, either directly or indirectly through Subsidiaries, may be dissolved, liquidated, or terminated in whole or in part. (g) Guarantees. Incur, create, assume or permit to exist any Guaranty Obligations, except for: (i) existing unsecured Guaranty Obligations of the Borrower set forth in Exhibit L hereto (and renewals, refinancings or extensions (but not any increases in the outstanding principal amount) thereof on terms and conditions no less favorable to the Borrower than the terms and conditions of such existing Guaranty Obligation); (ii) unsecured Guaranty Obligations of any Domestic Subsidiary, provided that at no time shall (A) the sum of (1) the aggregate outstanding principal amount of all Guaranty Obligations of Domestic Subsidiaries permitted under this Section 10.01(g) hereof, plus (2) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(ii) hereof to the extent not backed or guaranteed by a Letter of Credit issued hereunder, plus (3) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(iii) hereof, plus (4) the aggregate outstanding amount of investments permitted under Section 10.01(h)(vi) hereof, plus (5) the aggregate outstanding principal amount of all loans and advances permitted under Section 10.01(k)(iii) hereof, plus (6) the aggregate outstanding amount of investments permitted under Section 10.01(m) hereof, exceed (B) 25% of Book Net Worth as of the end of the then immediately preceding fiscal quarter; EX-67 (iii) unsecured Guaranty Obligations of any Canadian Subsidiary of any Indebtedness of any other Canadian Subsidiary permitted under Section 10.01(a)(iv) hereof, provided that at no time shall (A) the sum of (1) the aggregate outstanding principal amount of all Guaranty Obligations of Canadian Subsidiaries permitted under Section 10.01(g) hereof, plus (2) the aggregate outstanding principal amount of all Indebtedness of Canadian Subsidiaries permitted under Section 10.01(a)(iv) hereof, exceed (B) $50,000,000.00; and (iv) in addition to Guaranty Obligations otherwise permitted by this Section 10.01(g), other unsecured Guaranty Obligations hereafter incurred, created or assumed by the Borrower provided that (A) no such Guaranty Obligation shall be incurred in respect of any Indebtedness or other monetary obligations of any Subsidiary of the Borrower, (B) the guaranty agreement with respect to any such Guaranty Obligation shall not contain covenants or default provisions more restrictive than the covenants and default provisions contained in the Loan Documents and (C) on the date of incurrence of any such Guaranty Obligation after giving effect on a Pro Forma Basis to the incurrence, creation or assumption of such Guaranty Obligation, no Event of Default or event or condition which, with the giving of notice or lapse of time or both, would constitute such an Event of Default, would exist hereunder. (h) Investments. Purchase, own, invest in or otherwise acquire, directly or indirectly, any stock or other securities, or make or permit to exist any investment or capital contribution or acquire any interest whatsoever in any other Person or permit to exist any loans or advances for such purposes; provided, however, the Borrower and its Subsidiaries may maintain existing investments in the other Subsidiaries of the Borrower and the Borrower and its Subsidiaries may maintain investments in or invest in. (i) direct obligations of the United States of America, or any agency thereof or obligations guaranteed by the United States of America; provided, that such obligations mature within one year from the date of acquisition thereof; (ii) certificates of deposit maturing within one year from the date of acquisition issued by one of the Banks, or by any other bank or trust company organized under the laws of the United States or any state thereof having a long term debt rating of A or better by Moody's Investors Service, Inc. and/or Standard and Poor's Corporation and not known by the Borrower to be having financial difficulties; (iii) commercial paper rated P-1 or P-2 by Moody's Investors Service, Inc. (Commercial Paper Record) and rated A-1 or A-2 by Standard and Poors Corporation (Commercial Paper Ratings Guide); (iv) companies (including Canadian companies) conducting a line of business similar to and compatible with (A) the business formerly conducted by Jackson, (B) the business of US Cryogenics, Inc. prior to its sale by EX-68 US Airgas, Inc., (C) the business of Nitrous Oxide, Leasing and those other Subsidiaries of the Borrower which conduct a gas distribution business, including the distribution of equipment and/or supplies related thereto or (D) the business of distributing equipment and/or supplies which are sold to customers of a gas distribution business; (v) capital assets for companies described in clause (iv) above, acquired incidental to and within 12 months after the acquisition of such company; (vi) companies having a business involving the financing of customers and suppliers of any of the Borrower and its Subsidiaries, provided that at no time shall (A) the sum of (1) the aggregate outstanding amount of investments permitted under this clause (vi), plus (2) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(ii) hereof to the extent not backed or guaranteed by a Letter of Credit issued hereunder, plus (3) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(iii) hereof, plus (4) the aggregate outstanding principal amount of all Guaranty Obligations of Domestic Subsidiaries permitted under Section 10.01(g) hereof, plus (5) the aggregate outstanding principal amount of loans and advances permitted under Section 10.01(k)(iii) hereof, plus (6) the aggregate outstanding amount of investments permitted under Section 10.01(m) hereof, exceed (B) 25% of Book Net Worth as of the end of the then immediately preceding fiscal quarter; and (vii) investments permitted by Section 10.01(m) hereof. (i) Receivables Sales. Discount or sell any of its notes or accounts receivable; provided, however, the Borrower or any of its Subsidiaries may discount or sell installment sales contracts relating to the sale of cylinders or equipment held for sale in the normal course of business. (j) Transactions with Affiliates. Enter into any transaction, including, without limitation, the purchase, sale, leasing or exchange of property, real or personal, or the rendering of any service, with any Affiliate or Subsidiary, or any stockholder, officer or director of the Borrower or any of its Subsidiaries, except in the ordinary course of and pursuant to the reasonable requirements of such Person's business and upon fair and reasonable terms no less favorable as a whole to such Person than would obtain in a comparable arm's-length transaction with a Person not an Affiliate, Subsidiary, stockholder, officer or director of the Borrower or any of its Subsidiaries; provided, however, that any Subsidiary of the Borrower may issue, sell and/or distribute to officers of such Subsidiary additional shares of stock in such Subsidiary not to exceed 15% in the aggregate of any class of stock of such Subsidiary for all such officers. (k) Loans and Advances. Make any loans or advances to any Person except: EX-69 (i) loans or advances in the ordinary course of business including any loans or advances made in connection with the sale of cylinders on an installment basis; (ii) loans or advances to any Subsidiary of the Borrower; and (iii) additional loans and investments provided that at no time shall (A) the sum of (1) the aggregate outstanding principal amount of loans and advances permitted under this clause (iii), plus (2) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(ii) hereof to the extent not backed or guaranteed by a Letter of Credit issued hereunder, plus (3) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(iii) hereof, plus (4) the aggregate outstanding principal amount of all Guaranty Obligations of Domestic Subsidiaries permitted under Section 10.01(g) hereof, plus (5) the aggregate outstanding amount of investments permitted under Section 10.01(h)(vi) hereof, plus (6) the aggregate outstanding amount of investments permitted under Section 10.01(m) hereof, exceed (B) 25% of Book Net Worth as of the end of the then immediately preceding fiscal quarter. (l) Dividends. Declare or pay any cash dividends (other than stock dividends) or redeem or retire any of its capital stock at any time when there exists, or if, as a consequence thereof, there would occur, any Event of Default or any event or condition which, with the giving of notice or lapse of time or both, would constitute such an Event of Default. (m) Partnerships, Joint Ventures, etc. Create or permit to exist any partnerships or joint ventures or make any similar substantial investment if (i) the sum of (A) the aggregate outstanding amount of investments permitted under this Section 10.01(m), plus (B) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(ii) hereof to the extent not backed or guaranteed by a Letter of Credit issued hereunder, plus (C) the aggregate outstanding principal amount of all Indebtedness of Domestic Subsidiaries permitted under Section 10.01(a)(iii) hereof, plus (D) the aggregate outstanding principal amount of all Guaranty Obligations of Domestic Subsidiaries permitted under Section 10.01(g) hereof, plus (E) the aggregate outstanding amount of investments permitted under Section 10.01(h)(vi) hereof, plus (F) the aggregate outstanding amount of investments permitted under Section 10.01(k)(iii) hereof, would exceed (ii) 25% of Book Net Worth as of the end of the then immediately preceding fiscal quarter. (n) Line of Business. Enter into a line of business other than (i) a line of business which is similar to and compatible with (A) the business formerly conducted by Jackson, (B) the business of US Cryogenics, Inc. prior to its sale to US Airgas, Inc. or (C) the business of Nitrous Oxide, Leasing and those other Subsidiaries of the Borrower which conduct a gas distribution business, including the distribution of equipment and/or supplies related thereto, (ii) a business involving the financing of customers and suppliers of any of the Borrower and its Subsidiaries or (iii) any other business conducted by the Borrower or any of its Subsidiaries as of the Closing Date. EX-70 (o) Changes in Accounting Practices. Change its current accounting practices regarding recognition of income except in connection with changes in Generally Accepted Accounting Principles. (p) Funded Debt Coverage Ratio. Permit the Funded Debt Coverage Ratio as of the end of any fiscal quarter to be greater than 4.5 to 1.0; provided, however, the Borrower shall not permit the Funded Debt Coverage Ratio to be greater than 4.0 to 1.0 as of any fiscal quarter end occurring four or more fiscal quarters after any fiscal quarter end as of which the Funded Debt Coverage Ratio was greater than 4.0 to 1.0. (q) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio as of the end of any fiscal quarterly period to be less than 1.75 to 1.00. (r) Minimum Book Net Worth. Permit Book Net Worth at any time to be less than $170,000,000.00; provided, however, (i) such amount shall be increased at the end of each fiscal year (commencing with the end of the fiscal year ending March 31, 1996) by an amount equal to the greater of $5,000,000.00 or 75% of the Borrower and its Subsidiaries' net income for the fiscal year then ending (computed on a consolidated basis in accordance with Generally Accepted Accounting Principles); (ii) in addition to any increases pursuant to clause (i) above, such amount shall also be increased by 75% of the net proceeds received by the Borrower or any of its Subsidiaries in connection with (A) any private or public sale or placement of its common or preferred stock (including, without limitation, any placement of stock in connection with the exercise of warrants or options) or (B) the conversion of any Subordinated Debt into equity; and (iii) such amount shall be decreased by (A) the aggregate cumulative amount, but in any event not to exceed $30,000,000.00 for purposes of this clause (A), of all payments made by the Borrower subsequent to the Closing Date for the redemption, retirement or other repurchase of any shares of the common stock of the Borrower other than any such common stock of the type described in the following clause (B), and (B) 75% of the aggregate market value, determined in each case as of the date of issuance thereof, of all capital stock of the Borrower issued to and held by the sellers of any company of the type described in Section 10.01(h)(iv) or 10.01(h)(v) in connection with the acquisition by the Borrower of such company, provided that in any such case such capital stock has not been (1) issued and outstanding for more than 18 months or (2) redeemed, retired or repurchased by the Borrower. (s) Prepayments of Indebtedness, etc. If any Event of Default, or any event which upon notice or lapse of time or both would constitute such an Event of Default, has occurred and is continuing or would be directly or indirectly caused as a result thereof, (i) amend or modify (or permit the amendment or modification of) any of the terms of any Indebtedness for borrowed money if such amendment or modification would add or change any terms in a manner adverse to the issuer of such Indebtedness, or shorten the final maturity or average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable thereto or change any subordination provision thereof or (ii) make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without EX-71 limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any other Indebtedness. (t) Payments on Subordinated Debt. Except as otherwise permitted in writing by the Majority Banks, make any payment of principal or interest on any Subordinated Debt if at the time of the proposed payment the documents evidencing such Subordinated Debt provide that the holders thereof shall not be entitled to receive payment thereof until the term of this Loan Agreement shall have expired in accordance with the provisions of Section 13.11 hereof. (u) Amendment of Subordinated Debt Documents. Except as otherwise permitted in writing by the Majority Banks, enter into any modification or amendment of the terms or provisions of either Senior Subordinated Note Purchase Agreement or any other document executed in connection with the Subordinated Debt if such modification or amendment would add or change any terms in a manner adverse to the Borrower or the Banks. ARTICLE XA INCORPORATION OF SUBORDINATED DEBT COVENANTS 10A.01 Incorporation of Subordinated Debt Covenants. The covenants contained in Section 10 of each of the Senior Subordinated Note Purchase Agreements, as such covenants may be amended or modified from time to time (the "Incorporated Covenants"), are hereby incorporated herein by reference and shall be as binding on the Borrower as if set forth fully herein. In the event that both of the Senior Subordinated Note Purchase Agreements are terminated, the provisions of this Section 10A.01 shall have no further force or effect. ARTICLE XI EVENTS OF DEFAULT AND ACCELERATION 11.01 Events of Default and Acceleration. If any of the following events (the "Events of Default") shall occur and be continuing: (a) (i) the failure of the Borrower to make when due any payment of interest, fees or other amounts required by this Loan Agreement and/or any of the other Loan Documents (other than a payment of principal) and the continuation of such failure for five (5) days; or (ii) the failure of the Borrower to make when due any payment of principal required by this Loan Agreement and/or any of the Revolving Credit Notes or Money Market Notes; (b) the failure of the Borrower to comply with any other terms and conditions in this Loan Agreement (including without limitation any covenant incorporated herein by reference pursuant to Section 10A.01 hereof) or the other Loan Documents within 30 days after the earlier to occur of (i) written notice from the Agent specifying the default and requesting that it be remedied; or (ii) an Executive Officer of the Borrower becomes aware of such violation; EX-72 (c) any representation or warranty made by the Borrower herein or in any of the other Loan Documents or in any certificate, statement or report heretofore or hereafter made (or deemed made pursuant to Article VII hereof) shall be untrue in any material respect when made (or deemed made); (d) the Borrower or any of its Subsidiaries: (i) shall make an assignment for the benefit of creditors; or (ii) shall file any judicial proceedings for dissolution or liquidation; or (iii) (A) has a petition initiating a proceeding under any section or chapter of the Bankruptcy Code or its amendments, filed by or against such Person, and, if against such Person, such petition is not set aside or dismissed within sixty (60) days after such filing, or (B) any order of relief or other order approving such case or proceeding is entered; or (iv) has a receiver, trustee or custodian appointed for all or a material part of its assets which, if involuntary, is not dismissed within 60 days of such appointment; or (v) seeks to make an adjustment, settlement or extension of its debts with its creditors generally; or (vi) shall consent to or acquiesce in any of the events specified in this subsection (d) which are commenced or instituted against such Person; (e) one or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving in the aggregate liabilities (to the extent not paid or to the extent not fully covered by insurance or by adequate reserves (as determined by the Majority Banks in their sole reasonable discretion) provided by such Person) of $1,000,000.00 or more and all or some of such judgments and decrees (to the extent necessary to reduce the aggregate liability to less than $1,000,000.00) shall not have been vacated, discharged or stayed within 30 days from the entry thereof; (f) the Borrower or any of its Subsidiaries in the performance of any other agreement between it and any other lender (including without limitation one of the Banks) fails to pay when due any Indebtedness having a principal balance (alone or in the aggregate) in excess of $1,000,000.00 or otherwise defaults with respect to any such Indebtedness and such default results in or would permit the acceleration thereof, unless, with respect to any Indebtedness permitted under Section 10.01(a)(vi) hereof in favor of the sellers of companies described in Section 10.01(h)(iv), (v) and (vi) hereof, such default is in connection with a bona fide dispute as to the right of the applicable Person to offset such Indebtedness against indemnification obligations of the holder of such Indebtedness to such Person and such Person shall have made adequate provision (as determined by the Majority Banks in their sole reasonable discretion) for such Indebtedness on its books of account; EX-73 (g) any Person and/or its Affiliates (other than members of the Management Team as of the Closing Date) shall own in the aggregate more than 35% of the Voting Stock of the Borrower; provided, however, such occurrence shall not constitute an Event of Default hereunder until a period of 30 days has elapsed from the date of the acquisition by such Person and/or its Affiliates of Voting Stock of the Borrower which gives such Person and/or its Affiliates an aggregate ownership of more than 35% of the Voting Stock of the Borrower; provided further, if such Person and/or its Affiliates have filed a tender offer statement with the Securities and Exchange Commission in connection with such acquisition, the 30 day period referenced above in the foregoing proviso shall commence on the date of the filing with the Securities and Exchange Commission of such tender offer statement; (h) the Borrower or any of its Subsidiaries or other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $1,000,000.00 which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan or Plans which in the aggregate have unfunded liabilities in excess of $1,000,000.00 (individually and collectively, a "Material Plan") shall be filed under Title IV of ERISA by any member of the Controlled Group, any plan administrator or any combination of the above; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default (within the meaning of Section 4219(c)(5) of ERISA) with respect to, one or more Multiemployer Plans which could cause one or more members of the Controlled Group to incur a current payment obligation in excess of $1,000,000.00; (i) an event of default shall occur under any of the other Loan Documents; then, and in every such event (other than an event described in paragraph (d) above) and at any time thereafter during the continuance of such event, the Agent shall, upon request of the Majority Banks, by written notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate forthwith the commitments of all the Banks and the LC Agent hereunder to make Extensions of Credit; (ii) declare the Revolving Credit Notes, the Money Market Notes and the LC Reimbursement Obligations and all fees and other amounts payable hereunder to be forthwith due and payable, whereupon the Revolving Credit Notes, the Money Market Notes and the LC Reimbursement Obligations, both as to principal and interest, and all fees and other amounts payable hereunder, shall become forthwith due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in the Revolving Credit Notes or the Money Market Notes to the contrary notwithstanding; and (iii) pursue any other remedy under this Loan Agreement or any other Loan Document or otherwise; and, in any event described in paragraph (d) above, the commitments of all the Banks and of the LC Agent hereunder to make Extensions of Credit shall automatically terminate and the Revolving Credit Notes, the Money Market Notes EX-74 and the LC Reimbursement Obligations, both as to principal and interest, and all fees and other amounts payable hereunder, shall automatically become due and payable without presentment, demand,protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in the Revolving Credit Notes or the Money Market Notes to the contrary notwithstanding, and the Agent may pursue any other remedy under this Loan Agreement or any other Loan Document or otherwise. ARTICLE XII THE AGENT 12.01 Appointment and Authorization. Each Bank hereby irrevocably designates and appoints the Agent as the agent of such Bank under this Loan Agreement and the other Loan Documents, and each Bank hereby irrevocably authorizes the Agent, as the agent for such Bank, to take such action on its behalf under the provisions of this Loan Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Agent by the terms of this Loan Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Loan Agreement, or any of the other Loan Documents, the Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or any fiduciary relationship with any Bank, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Loan Agreement or the other Loan Documents or otherwise exist against the Agent. 12.02 Use of Agents, etc. The Agent may execute any of its duties under this Loan Agreement or the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. 12.03 General Immunity. Neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with any of the Loan Documents (except for its or such Person's own gross negligence or willful misconduct), or (ii) responsible in any manner to any of the Banks for any recitals, statements, representations or warranties made by the Borrower contained in any of the Loan Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, the Loan Documents or enforce- ability or sufficiency of any of the Loan Documents, or for any failure of the Borrower to perform its obligations hereunder or thereunder. The Agent shall not be under any obligation to any Bank to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Loan Documents or to inspect the properties, books or records of the Borrower or any of its Subsidiaries. EX-75 12.04 Reliance, etc. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any Revolving Credit Note, Money Market Note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrower), independent accountants and other experts selected by the Agent. The Agent may deem and treat the payee of any Revolving Credit Note or Money Market Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agent. The Agent shall be fully justified in failing or refusing to take any action under any of the Loan Documents unless it shall first receive such advice or concurrence of the Banks as it deems appropriate or it shall first be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under any of the Loan Documents in accordance with a request of the Banks, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Banks and all future holders of the Revolving Credit Notes or the Money Market Notes. 12.05 Events of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default hereunder unless the Agent has received notice from a Bank or the Borrower referring to the applicable Loan Document and describing such Event of Default. In the event that the Agent receives such a notice, the Agent shall give notice thereof to the Banks. The Agent shall take such action with respect to such Event of Default as shall be directed in accordance with Section 11.01 or Section 13.05 hereof; provided that, unless and until the Agent shall have received such directions, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable in the best interests of the Banks. 12.06 No Representations. Each Bank expressly acknowledges that neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Agent or any affiliate thereof hereafter taken, including any review of the affairs of the Borrower and its Subsidiaries, shall be deemed to constitute any representation or warranty by the Agent to any Bank. Each Bank represents to the Agent that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Borrower and made its own decision to make its loans hereunder and enter into this Loan Agreement. Each Bank also represents that it will, independently and without reliance upon the Agent or the other Banks, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Loan Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and EX-76 creditworthiness of the Borrower. Except for notices, reports and other documents expressly required to be furnished to the Banks by the Agent hereunder, the Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Borrower which may come into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. 12.07 Indemnification of Agent. The Banks agree to indemnify the Agent in its capacity as such (to the extent not reimbursed by the Borrower, and without limiting the obligation of the Borrower to do so), ratably according to the respective amounts outstanding to the Borrower, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including without limitation at any time following the payment of the Revolving Credit Notes and the Money Market Notes) be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; provided that no Bank shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's gross negligence or willful misconduct; provided, further, no Bank shall be obligated for the ratable share of such indemnity obligations of any other Bank. The agreements in this subsection shall survive the payment of the Revolving Credit Notes and the Money Market Notes and all other amounts payable hereunder. 12.08 Dealings with the Borrower. The Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower or any of its Subsidiaries as though the Agent were not the Agent hereunder. With respect to its Revolving Credit Loans made or renewed by it, any Letters of Credit and any Revolving Credit Note or Money Market Note issued to it, the Agent shall have the same rights and powers under this Loan Agreement as any Bank and may exercise the same as though it were not the Agent. 12.09 Resignation and Removal. The Agent may resign at any time by giving written notice thereof to the Banks and the Borrower and may be removed at any time with or without cause by the Majority Banks. Upon any such resignation or removal, the Majority Banks shall have the right, with the prior written consent of the Borrower (not to be unreasonably withheld), to appoint a successor Agent. If no successor Agent shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation or the Majority Banks' removal of the retiring Agent, then the retiring Agent shall select a successor Agent provided such successor Agent is a commercial bank organized under the laws of the United States of America or of any State thereof and has a combined capital and surplus of at least $400,000,000.00. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the EX-77 retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Loan Agreement and the other Loan Documents. After any retiring Agent's resignation or removal hereunder as Agent, the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Loan Agreement and the other Loan Documents. ARTICLE XIII MISCELLANEOUS 13.01 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing or by telefax and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or when deposited in the mail, first-class postage prepaid, or, in the case of telefax notice, when sent, addressed as follows, or to such address or other address as may be hereafter notified by the respective parties hereto and any future holders of the Revolving Credit Notes: (a) if to the Borrower, to it at Five Radnor Corporate Center, 100 Matsonford Road, Radnor, Pennsylvania 19087, Attention of Britton H. Murdoch (Facsimile No. 610-687-1052); With a copy to: McCausland, Keen & Buckman Five Radnor Corporate Center 100 Matsonford Road Radnor, Pennsylvania 19087 Attention of Melvin J. Buckman, Esq. (Facsimile No. 610-341-1099) (b) if to the Agent, to it at NationsBank Corporate Center, 8th Floor, Charlotte, North Carolina 28255, Attention of M. Gregory Seaton (Facsimile No. 704-386-3271); With a copy to: NationsBank, N.A. (Carolinas) Independence Center - 15th Floor Charlotte, North Carolina 28255 Attention of Lorie McIntosh (Facsimile No. 704-386-9923); (c) if to a Bank, to it at its address (or telecopy number) set forth on Exhibit A or in the assignment agreement pursuant to which such Bank became a party hereto. 13.02 No Waiver: Remedies Cumulative. No failure or delay on the part of any of the Banks in the exercise of any right, power or privilege hereunder or under any other Loan Document shall operate as a waiver of any such right, power or privilege nor shall any such failure or delay preclude any other or further exercise thereof. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law. 13.03 Survival of Certain Provisions, etc. All covenants, agreements, representations and warranties made herein and in the other Loan Documents shall survive the making by the Banks of all Extensions of Credit and the execution and delivery to the Banks of the Loan Documents and shall continue in full force and effect so EX-78 long as any of the indebtedness of the Borrower to the Banks or any obligations of the Banks under the Revolving Credit Loan Commitments remain outstanding. Whenever in this Loan Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party and all covenants, provisions and agreements by or on behalf of the Borrower which are contained in the Loan Documents or this Loan Agreement shall inure to the benefit of the successors and assigns of the Banks. 13.04 Payment of Expenses, etc. (a) The Borrower agrees (i) to pay all reasonable out-of- pocket costs and expenses of the Agent in connection with the preparation, execution and delivery of the Loan Documents, including, without limitation, the reasonable fees and out-of-pocket expenses of special counsel to the Agent, and (ii) to pay the reasonable out-of-pocket costs and expenses of the Banks in connection with the enforcement of or, during the continuance of an Event of Default and after the Loans have been accelerated in accordance with the terms of Section 11.01 hereof, the protection of the rights of the Banks under this Loan Agreement and the other Loan Documents and to hold the Banks harmless from any and all such costs, expenses and liabilities. In addition, the Borrower agrees to pay to each Bank an amendment fee of not less than $3,000.00 on the effective date of each agreement hereafter entered into among the Borrower and the Banks (or the Agent on behalf of the Banks) effecting any material amendment, modification or waiver of the terms of this Loan Agreement, including without limitation any such agreement relating to any provision set forth in Article VII, Article VIII, Article IX, Article X, Article XA or Article XI hereof. The Banks hereby acknowledge and agree that no amendment fee shall be payable pursuant to this Section 13.04 in connection with the amendment of the Prior Loan Agreement as of the date hereof pursuant to this Loan Agreement. The provisions of this Section shall survive the termination of this Loan Agreement. (b) The Borrower agrees to indemnify each Bank, its officers, directors, employees, representatives and agents from and hold each of them harmless against any and all losses, liabilities, claims, damages or expenses incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not any Lender is a party thereto) related to the entering into and/or performance of any Loan Document or the use of proceeds of any Revolving Credit Loans or Money Market Loans (including other extensions of credit) hereunder or the consummation of any other transactions contemplated in any Loan Document, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other proceeding (but excluding any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of negligence or misconduct on the part of the Person to be indemnified). 13.05 Amendments, Waivers and Consents. With the written consent of the Majority Banks, the Agent and the Borrower may, from time to time, enter into written amendments, supplements or modifications hereto for the purpose of adding any provisions to this Loan Agreement, the Revolving Credit Notes, the Money Market Notes or any of the other Loan Documents or changing in any manner EX-79 the rights of the Banks or of the Borrower hereunder or thereunder, and with the written consent of the Majority Banks the Agent on behalf of the Banks may execute and deliver to the Borrower a written instrument waiving, on such terms and conditions as the Agent or Majority Banks may specify in such instrument, any of the requirements of this Loan Agreement or any other Loan Document or any Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (a) extend the maturity of any Revolving Credit Note or Money Market Note or any installment thereof or of any LC Reimbursement Obligation, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof, or change the amount or terms of any Commitment, or change the amount or time for payment of any fee required hereunder, or amend, modify or waive any provision of this Section 13.05 or change the definition of "Majority Banks" set forth in Section 1.01 hereof, or amend, modify or waive any provision of any Loan Document requiring action or approval by all of the Banks, or waive an Event of Default specified in Section 11.01(a) hereof, or consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Loan Agreement, or release the Borrower from its obligations under this Loan Agreement, in each case without the written consent of all the Banks, or (b) amend, modify or waive any provision of Article XII hereof without the written consent of the then Agent. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Banks and shall be binding upon the Borrower, the Banks, the Agent and all future holders of the Revolving Credit Notes and the Money Market Notes. In the case of any waiver of the requirements of this Loan Agreement, any other Loan Document, the Revolving Credit Notes or the Money Market Notes, the parties thereto shall be restored to their former position and rights thereunder, and any Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Event of Default, or impair any right consequent thereon. 13.06 Computations. Except as otherwise provided for hereunder, interest, fees and premiums hereunder shall be computed on the basis of a three hundred sixty-five (365) day year for theactual number of days in the billing period. 13.07 Right of Set Off. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 11.01 hereof to authorize the Agent to declare the Revolving Credit Notes, the Money Market Notes and the LC Reimbursement Obligations due and payable pursuant to the provisions of Section 11.01 hereof, each Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing at such Bank to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Loan Agreement or such Revolving Credit Note and although such obligations may be unmatured. 13.08 Interim Interest. Except as otherwise provided for hereunder with respect to Eurodollar Loans, should any installment or other payment of the principal of or interest on the Revolving Credit Notes, the Money Market Notes or the LC Reimbursement Obligations become due and payable on other than a Business Day, EX-80 the maturity thereof shall be extended to the next succeeding Business Day thereafter and in the case of an installment of principal, interest shall be payable thereon at the rate per annum herein specified during such extension. 13.09 Counterparts. This Loan Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and it shall not be necessary in making proof of this Loan Agreement to produce or account for more than one such counterpart. 13.10 Assignments, Participations, etc. (a) Any Bank may, at any time upon written notice thereof to the Agent and the Borrower, transfer or assign all or any portion of the indebtedness evidenced by the Revolving Credit Notes or Money Market Notes held by such Bank and the Revolving Credit Loan Commitment of such Bank hereunder and the terms hereof shall extend to any subsequent holder of the Revolving Credit Notes or Money Market Notes; provided, however, that any assignment by a Bank hereunder, other than an assignment to an affiliate of such Bank under common control with such Bank, shall be subject to the prior written consent of the Borrower and the Agent (in either case not to be unreasonably withheld). (b) Any Bank may at any time sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Loan Agreement; provided, however, that (1) such Bank's obligations under this Loan Agreement shall remain unchanged, (2) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (3) each participating bank or other entity shall be entitled to the benefit of the cost protection provisions contained in Sections 5.04, 5.05, 5.06, 5.08 and 5.09 hereof, except that all claims and petitions for payment and payments made pursuant to such Sections shall be made through such selling Bank and except that a participant shall not be entitled to receive pursuant to such provisions an amount larger than its share of the amount to which the selling Bank would have been entitled had no such sale been made, and (iv) the Borrower, the Agent and the other Banks shall continue to deal solely and directly with such selling Bank in connection with such Bank's rights and obligations under this Loan Agreement, and such Bank shall retain the sole right (and participating banks or other entities shall have no right) to enforce the obligations of the Borrower under the Loan Documents and to approve any amendment, modification or waiver of any provi- sion of this Loan Agreement or any of the other Loan Documents (other than amendments, modifications or waivers requiring, pursuant to the terms of Section 13.05 hereof, unanimous consent of the Lenders). (c) Any Bank may pledge all or any portion of its rights under this Loan Agreement, its Revolving Credit Notes and/or its Money Market Note to a Federal Reserve Bank. No such pledge shall release any Bank from its obligations hereunder or substitute any such Federal Reserve Bank for such Bank as a party hereto. 13.11 Binding Effect; Termination of Prior Loan Agreement; Term of Agreement. (a) This Loan Agreement shall become effective at such time on or after the Closing Date when it shall have been executed by the Borrower and the Agent and the Agent shall have received copies hereof (telefaxed or otherwise) which, when taken EX-81 together, bear the signatures of each Bank, and thereafter this Loan Agreement shall be binding upon and inure to the benefit of the Borrower, the Agent, the LC Agent and each Bank and their respective successors and assigns. Each of the Borrower (for itself and on behalf of Airgas Holdings, Inc.) and the Banks party to the Prior Loan Agreement hereby acknowledges and agrees that, at such time as this Loan Agreement shall become effective in accordance with the terms of the immediately preceding sentence, (i) this Loan Agreement shall supersede and replace the Prior Loan Agreement and (ii) the Prior Loan Agreement and the commitments of the Banks and the LC Agent thereunder automatically shall terminate and be of no further force or effect. Each Bank which was a party to the Prior Loan Agreement hereby agrees to return to the Borrower promptly following the Closing Date the original executed copies of all promissory notes delivered to such Bank in connection with the Prior Loan Agreement. (b) The term of this Loan Agreement shall be until the commitments of the Banks and of the LC Agent to make Extensions of Credit hereunder shall have terminated and the Banks have received payment in full of the unpaid principal and interest of the Revolving Credit Notes, the Money Market Notes, the LC Reimbursement Obligations, and all other amounts payable hereunder. 13.12 Governing Law; Submission to Jurisdiction; Venue. All documents executed pursuant to the transactions contemplated herein including without limitation this Loan Agreement, the Revolving Credit Notes, the Money Market Notes and the other Loan Documents shall be deemed to be contracts made under, and for all purposes shall be construed in accordance with, the internal laws and judicial decisions of the State of North Carolina. The Borrower hereby submits to the nonexclusive jurisdiction and venue of the state and federal courts of North Carolina for the purpose of resolving disputes hereunder or under the other Loan Documents or for the purposes of collection. The Borrower hereby agrees that both the federal and state courts in Mecklenburg County, North Carolina are a convenient forum and agrees not to raise as a defense that such courts are not a convenient forum. 13.13 Obligations Senior to Subordinated Debt. The payment of the indebtedness of the Borrower to the Banks hereunder and under the Revolving Credit Notes and the Money Market Notes is senior to the payment of the indebtedness of the Borrower under the Senior Subordinated Note Purchase Agreements and each Note Guaranty (as defined in the Senior Subordinated Note Purchase Agreements) in accordance with the terms thereof. 13.14 Currency Conversions. Wherever in this Loan Agreement the conversion of an amount in any foreign currency into its U.S. currency equivalent is required, such U.S. currency equivalent amount shall be realized by using the exchange rate for such foreign currency as set forth in the Wall Street Journal published on the date on which a computation thereof is required to be made hereunder, or if the Wall Street Journal is not published on such date of computation, then as set forth in the most recently published issue of the Wall Street Journal as of such date. EX-82 13.15 Dealings by Banks with the Borrower. Nothing contained herein shall be deemed to limit the right of any Bank (or any of its affiliates) to make loans to, accept deposits from and generally engage in any kind of business with the Borrower or any of its Subsidiaries. 13.16 Net Payments. The Borrower hereby agrees that all payments and prepayments of principal, interest and fees required to be made hereunder or under any of the other Loan Documents shall be without deduction for or on account of any present or future taxes, duties or other charges levied or imposed by any foreign nation or any political subdivision or taxing authority thereof. [The remainder of this page has been left blank intentionally.] EX-83 IN WITNESS WHEREOF, each of the parties hereto has caused this Seventh Amended and Restated Loan Agreement to be duly executed by their duly authorized officers, all as of the day and year first above written. AIRGAS, INC. By_____________________________________ Britton H. Murdoch Vice President S-1 EX-84 NATIONSBANK, N.A. (CAROLINAS) By_________________________________ Title______________________________ S-2 EX-85 THE BANK OF NEW YORK By_________________________________ Title______________________________ S-3 EX-86 FIRST FIDELITY BANK, N.A. By_________________________________ Title______________________________ S-4 EX-87 CORESTATES BANK, NA By_________________________________ Title______________________________ S-5 EX-88 BANK OF AMERICA ILLINOIS By_________________________________ Title______________________________ S-6 EX-89 MERIDIAN BANK By_________________________________ Title______________________________ S-7 EX-90 NBD BANK By_________________________________ Title______________________________ S-8 EX-91 CIBC INC. By_________________________________ Title______________________________ S-9 EX-92 PNC BANK, NATIONAL ASSOCIATION By_________________________________ Title______________________________ S-10 EX-93 NATWEST BANK N.A. By_________________________________ Title______________________________ S-11 EX-94 NATIONSBANK, N.A. (CAROLINAS), as Agent for the Banks By_________________________________ Title______________________________ S-12 EX-95 EXHIBIT A BANK ADDRESSES AND COMMITMENT LEVELS DOLLAR AMOUNT OF REVOLVING % OF TOTAL CREDIT LOAN BANK COMMITMENT COMMITMENTS NationsBank, N.A. (Carolinas) 16.0% $60,000,000.00 Nationsbank Corporate Center 8th Floor Charlotte, North Carolina 28255 Attn: M. Gregory Seaton Facsimile No.: 704-386-3271 The Bank of New York 14.666667% $55,000,000.00 One Wall Street New York, New York 10286 Attn: Michael V. Flannery, Jr. Facsimile No.: 212-635-6999 First Fidelity Bank, N.A. 12.0% $45,000,000.00 Broad & Walnut Streets Philadelphia, Pennsylvania 19109 Attn: Carl Goelz Facsimile No.: 215-985-8793 Corestates Bank, NA 12.0% $45,000,000.00 Broad & Chestnut Streets, FC-8-3-16 P.O. Box 7618 Philadelphia, Pennsylvania 19101-7618 Attn: Matthew T. Panarese Facsimile No.: 215-973-6745 Bank of America, Illinois 8.0% $30,000,000.00 231 South LaSalle Street Chicago, Illinois 60697 Attn: Michael Gates Facsimile No.: 312-974-9626 with copies of notices to: Bank of America Illinois c/o Bank of America NT&SA 335 Madison Avenue, 5th Floor New York, New York 10017 Attn: Wendy Loring Facsimile No.: 215-503-7878 Meridian Bank 8.0% $30,000,000.00 One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, Pennsylvania 19103 Attn: David W. Mills Facsimile No.: 215-854-3774 EX-96 NBD Bank 8.0% $30,000,000.00 611 Woodward Avenue Detroit, Michigan 48226 Attn: Nancy L. Russell Facsimile No.: 313-225-1586 CIBC Inc. 8.0% $30,000,000.00 425 Lexington Avenue New York, New York 10017 Attn: Paul T. LaHiff Facsimile No.: 212-856-3991 PNC Bank, National Association 8.0% $30,000,000.00 Land Title Building Broad & Chestnut Street Philadelphia, Pennsylvania 19101 Attn: Todd Dissinger Facsimile No.: 215-585-6037 NatWest Bank N.A. 5.333333% $20,000,000.00 One Presidential Boulevard Suite 229 Bala Cynwyd, PA 19004 Attn: William Lacy Facsimile No.: 610-660-9976 with copies of notices to: NatWest Bank N.A. 22 Route 70 West Cherry Hill, NJ 08002 Attn: Tammy Sorensen Facsimile No.: 313-225-3691 100% 375,000,000.00 EX-97 EXHIBIT C AMENDED, RESTATED AND SUBSTITUTED REVOLVING CREDIT PROMISSORY NOTE $____________________ August 10, 1995 FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation (the "Borrower") hereby promises to pay to the order of _____________________, a ________________________, in its individual capacity (the "Bank"), at the office of NationsBank, N.A. (Carolinas), as Agent (the "Agent"), at NationsBank Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255 (or at such other place or places as the holder hereof may designate), at the times set forth in the Seventh Amended and Restated Loan Agreement dated as of August 10, 1995 among the Borrower, the Agent, the Bank and certain other banks (as amended from time to time, the "Loan Agreement"; all capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement), but in no event later than the Termination Date, in lawful money of the United States of America, in immediately available funds, the principal amount of ______________________________________________ ($____________) or, if less than such principal amount, the aggregate unpaid principal amount of all Revolving Credit Loans made by the Bank to the Borrower pursuant to the Loan Agreement, and to pay interest from the date hereof on the unpaid principal amount hereof, in like money, at said office, on the dates and at the rates selected in accordance with Article II of the Loan Agreement. [This Note is an amendment to, and is in substitution and replacement of, that certain Amended, Restated and Substituted Revolving Credit Promissory Note dated as of August 30, 1994 executed by the Borrower and Airgas Holdings, Inc., in favor of the Bank in the original principal amount of $_______________ (the "Replaced Note"). This Note represents the same indebtedness represented by the Replaced Note.] Upon the occurrence and during the continuance of an Event of Default the then remaining principal amount and accrued but unpaid interest shall bear interest at a per annum rate equal to two percent (2%) plus the rate that would otherwise be payable under Section 2.04 of the Loan Agreement until such principal and interest have been paid in full. Further, in the event that payment of all sums due hereunder is accelerated under the terms of the Loan Agreement, this Note, and all other indebtedness of the Borrower to the Bank shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Borrower. In the event this Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys' fees. All borrowings evidenced by this Note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof may be endorsed by the holder hereof on Schedule A attached hereto and incorporated herein by reference, or on a continuation thereof which shall be attached hereto and EX-98 made a part hereof; provided, however, that neither any failure to endorse such information on such schedule or continuation thereof nor any error in recordation shall in any manner affect the obligation of the Borrower hereunder or under the Loan Agreement. [Remainder of Page Intentionally Left Blank] EX-99 IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by its duly authorized officer, all as of the day and year first above written. AIRGAS, INC. By_____________________ Title__________________ EX-100 SCHEDULE A TO THE ____________ AMENDED, RESTATED AND SUBSTITUTED REVOLVING CREDIT PROMISSORY NOTE DATED AUGUST 10, 1995 Unpaid Name of Type Principal Person of Interest Payments Balance Making Date Loan Period Principal Interest of Note Notation ____ ____ ________ _________ ________ _________ _________ EX-101 EXHIBIT D AMENDED, RESTATED AND SUBSTITUTED MONEY MARKET PROMISSORY NOTE $375,000,000.00 August 10, 1995 FOR VALUE RECEIVED, AIRGAS, INC., a Delaware corporation (the "Borrower") hereby promises to pay to the order of _____________________ (the "Bank"), at such place or places as the holder hereof may designate, at the times set forth in the Seventh Amended and Restated Loan Agreement dated as of August 10, 1995 among the Borrower, NationsBank, N.A. (Carolinas), in its capacity as Agent, the Bank and certain other banks (as amended from time to time, the "Loan Agreement"; all capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement), but in no event later than the Termination Date, in lawful money of the United States of America, in immediately available funds, the principal amount of THREE HUNDRED SEVENTY-FIVE MILLION DOLLARS ($375,000,000.00) or, if less than such principal amount, the aggregate unpaid principal amount of all Money Market Loans made by the Bank to the Borrower pursuant to the Loan Agreement, and to pay interest from the date hereof on the unpaid principal amount hereof, in like money, at said office, on the dates and at the rates selected in accordance with Article IV of the Loan Agreement. [This Note is an amendment to, and is in substitution and replacement of, that certain Amended, Restated and Substituted Money Market Promissory Note dated as of August 30, 1994 executed by the Borrower and Airgas Holdings, Inc., in favor of the Bank in the original principal amount of $250,000,000.00 (the "Replaced Note"). This Note represents the same indebtedness represented by the Replaced Note.] Upon the occurrence and during the continuance of an Event of Default the then remaining principal amount and accrued but unpaid interest shall bear interest at a per annum rate equal to two percent (2%) plus the rate that would otherwise be payable under Section 4.01(g) of the Loan Agreement until such principal and interest have been paid in full. Further, in the event that payment of all sums due hereunder is accelerated under the terms of the Loan Agreement, this Note, and all other indebtedness of the Borrower to the Bank shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Borrower. In the event this Note is not paid when due at any stated or accelerated maturity, the Borrower agrees to pay, in addition to the principal and interest, all costs of collection, including reasonable attorneys' fees. All borrowings evidenced by this Note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof may be endorsed by the holder hereof on Schedule A attached hereto and incorporated herein by reference, or on a continuation thereof which shall be attached hereto and made a part hereof; provided, however, that neither any failure to endorse such information on such schedule or continuation thereof nor any error in recordation shall in any manner affect EX-102 the obligation of the Borrower hereunder or under the Loan Agreement. [Remainder of Page Intentionally Left Blank] EX-103 IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by its duly authorized officer, all as of the day and year first above written. AIRGAS, INC. By_____________________ Title__________________ EX-104 SCHEDULE A TO THE ____________ AMENDED, RESTATED AND SUBSTITUTED MONEY MARKET PROMISSORY NOTE DATED AUGUST 10, 1995 Unpaid Name of Principal Person Interest Interest Payments Balance Making Date Rate Period Principal Interest of Note Notation ____ _______ _______ _________ ________ ________ ________ EX-105 EXHIBIT J OFFICER'S CERTIFICATE For the period ended _______________, 19__ I, ________________________________, chief financial officer of Airgas, Inc. (the "Borrower"), hereby certify that, to the best of my knowledge with respect to that certain Seventh Amended and Restated Loan Agreement, dated August 10, 1995, among the Borrower, the banks and other financial institutions parties thereto, and NationsBank, N.A. (Carolinas), in its individual capacity and as agent for such banks and other financial institutions (as the same may be amended from time to time, the "Loan Agreement"; all defined terms in the Loan Agreement are incorporated herein by reference): 1. FUNDED DEBT COVERAGE RATIO a. Funded Debt Coverage Ratio of the Borrower and its Subsidiaries (computed on a consolidated basis) as of the last day of the quarterly period just ended ______ to 1.0 b. Funded Debt Coverage Ratio required by Section 10.01(p) of the Loan Agreement no greater than 4.5 to 1.0, or at any quarter end occurring 4 or more quarters after any quarter end as of which the Funded Debt Coverage Ratio was greater than 4.0 to 1.0, 4.0 to 1.0 2. FIXED CHARGE COVERAGE RATIO a. Fixed Charge Coverage Ratio of the Borrower and its Subsidiaries (computed on a consolidated basis) as of the last day of the quarterly period just ended ________ to 1.0 b. Fixed Charge Coverage Ratio required by Section 10.01(q) of the Loan Agreement no less than 1.75 to 1.0 EX-106 3. BOOK NET WORTH a. Book Net Worth of the Borrower and its Subsidiaries (computed on a consolidated basis) as of the last day of the quarterly period just ended $______________ b. Book Net Worth required by Section initially, no 10.01(r) of the Loan Agreement less than $170,000,000, increasing and decreasing in accordance with the terms of Section 10.01(r) of the Loan Agreement With reference to this Officer's Certificate, I hereby certify on behalf of the Borrower as follows: a. The Borrower has kept, observed, performed and fulfilled each and every agreement binding on it contained in the Loan Documents; b. The Borrower is not at this time in default in the keeping, observance, performance, or fulfillment of any of the terms, provisions and conditions of any of the Loan Documents; and c. Since _________________ (the date of the last similar certification), no Event of Default, nor any event which, upon notice or lapse of time or both, would constitute an Event of Default, has occurred. IN WITNESS WHEREOF, I have hereunto set my hand and the Airgas, Inc. seal this _____ day _________, 19__. [Corporate Seal] ___________________________ as Chief Financial Officer, AIRGAS, INC. EX-107 Schedule 1 $25,000,000 Senior Subordinated Note Purchase Agreement Previously Delivered EX-108 Schedule 2 $30,000,000 Senior Subordinated Note Purchase Agreement Previously Delivered EX-10 6 EXHIBIT 10.1 - AMENDED AND RESTATED 1984 STOCK OPTION PLAN EX-109 AIRGAS, INC. AMENDED AND RESTATED 1984 STOCK OPTION PLAN (As amended effective May 22, 1995) 1. Purpose The 1984 Stock Option Plan (the "Plan") is intended to enable AIRGAS, INC. (the "Company") to attract and retain capable officers and other key employees of the Company and its subsidiaries and to provide them with incentives to promote the best interests of the Company by enabling and encouraging them, through the grant of incentive and nonstatutory stock options to acquire Company stock. (Incentive and nonstatutory stock options are sometimes hereinafter referred to individually as an "Option" and, collectively, as the "Options"). As used in the Plan, the term "incentive stock options" means options which are intended to qualify as incentive stock options within the meaning of section 422 of the Internal Revenue Code of 1986 as amended from time to time (the "Code"), and which are designated as incentive stock options in an Option Agreement (as defined in Section 5(m) below). The term "nonstatutory stock options" means options which are intended to qualify as nonstatutory stock options within the meaning of section 83 of the Code, and which are designated as nonstatutory stock options in an Option Agreement. 2. Administration The Plan shall be administered by the Stock Option Committee of the Board of Directors (the "Committee"), which shall consist of the members of the Nominating and Compensation Committee. Subject to the terms of the Plan, the Committee shall have full authority to select the persons to whom incentive and/or statutory stock options shall be granted under the Plan and to set the other terms and conditions thereof. The Committee also shall have the authority to establish, from time to time, such rules and regulations, not inconsistent with the provisions of the Plan, for the proper administration of the plan, and to make such determinations and interpretations under or in connection with the Plan and the Options granted hereunder as it deems necessary or advisable. All such rules, regulations, determinations and interpretations shall be binding and conclusive upon the Company and upon their respective legal representatives, beneficiaries, successors and assigns and upon all other persons claiming under or through any of them. 3. Eligibility The persons eligible to participate in the Plan shall be the officers and other key employees, including directors who are also officers or key employees, of the Company and itssubsidiaries who may be designated by the Committee. The persons eligible to receive Options under the Plan are hereinafter referred to as "Eligible Individuals." 4. Stock Subject to the Plan Subject to the provisions of Section 7 hereof, 7,040,000 shares of the Company's Common Stock, par value $.01 per share ("Shares"), shall be available for the grant of Options under the Plan, provided that the aggregate number of Shares for which Options may be granted to directors under the Plan shall not exceed 1,000,000 Shares. Shares issuable under the Plan may be authorized by unissued Shares or reacquired Shares, as the Board shall EX-110 determine. If any Option granted under the Plan expires or otherwise terminates, in whole or in part, without having been exercised, the Shares subject to the unexercised portion of such Option shall be available for the granting of Options under the Plan as fully as if such Shares had never been subject to an Option. 5. Grants, Terms and Conditions of Options From time to time until the expiration or earlier termination of the Plan, the Committee may grant to Eligible Individuals (such grantees are hereinafter referred to as "Optionees") under the plan such incentive and/or nonstatutory stock options as it determines are warranted. Options granted pursuant to the Plan shall be in such form as the Committee shall be in such form as the Committee from time to time approve, and shall be subject to the following terms and conditions to the extent such terms and conditions are applicable to such Option. (a) Price.The option price per Share under each Option granted under the Plan shall be determined and fixed by the Committee in its discretion but shall not be less than the fair market value of the Shares on the date of grant of such Option. The fair market value of a Share on any day shall be determined by such method of determining fair market value as shall be permitted by the Code, or the rules and regulations thereunder, and adopted by the Committee from time to time. (b) Term. Subject to earlier termination as provided in Subsections (c) through (g) below and in Section 7 hereof, and except as otherwise provided in Subsection (k) below, the duration of each Option shall not be more than ten (10) years from the date of grant. (c) Exercise and Payment. Twenty-five percent of the options granted to each Optionee shall become exercisable for each completed year of continuous employment with the Company, commencing upon the first anniversary of the date of grant, as described in the following schedule: year one - 25 percent; year two - 50 percent; year three - 75 percent; and year four - 100 percent. The Committee may specify other installments or dates for the exercise of options and may determine that Options will become immediately exercisable in whole or in part in the event of termination of employment, death, disability or retirement. The purchase price shall be payable in cash or its equivalent. Except as otherwise provided in Subsections (d) through (g), (p) and (q) below, Options shall only be exercisable by an Optionee while he remains in the employ of the Company or a related corporation. Any Option Shares, the right to thepurchase of which has accrued, may be purchased at any time up to the expiration or termination of the Option. Options may be exercised, in whole or in part, from time to time, by giving written notice of exercise to the Company at its principal office, specifying the number of Shares to be purchased, and accompanied by payment in full of the aggregate purchase price for such Shares. (d) Termination of Optionee's Employment. If an Optionee's employment with the Company is terminated for any reason, with or without cause, other than by reason of death, disability, or retirement (as described in Subsections (e), (f) and (g) below) prior to the expiration of the original term of his Option ("Expiration Date") such Option may be exercised by the Optionee, to the extent to the number of Shares with respect to which the Optionee could have exercised it on the date of such termination of employment, or to any greater extent permitted by the Committee pursuant to Subsections (c) and (q), at any time prior to the earlier of (i) 30 days following the date of the Optionee's termination of employment, or (ii) the EX-111 Expiration Date of such Option. For purposes of this Subsection, an Optionee's employment relationship shall be considered as continuing intact while the Optionee is on military leave, sick leave, or other bona fide leave of absence (such as temporary employment by the government) if the period of such leave does not exceed 90 days, or, if longer, so long a the Optionee's right to reemployment with the Company or a related corporation is guaranteed either by statute or contract. (e) Death of Optionee. If an Optionee's employment is terminated by reason of his death prior to the Expiration Date of his Option, or if an Optionee whose employment is terminated as a result of retirement or disability (as described in Subsections (f) and (g) below, if earlier, such Option may be exercised, by the Optionee's estate, personal representative or beneficiary who acquired the right to exercise such Option by bequest or inheritance or by reason of the death of the Optionee, to the extent of the number of shares with respect to which the Optionee could have exercised it on the date of his death, subject to pro-rata vesting under Subsection (p) below, or to any greater extent permitted by the Committee, pursuant to Subsections (c) and (q), at any prior time to the Expiration date of such Option. (f) Disability of Optionee. If an Optionee shall become disabled (within the meaning of section 22(e)(3) of the Code) during his employment with the Company and his employment with the Company is terminated as a consequence of such disability prior to the Expiration Date of his Option, such Option may be exercised by the Optionee, to the extent of such number of Shares with respect to which the Optionee could have exercised it on the date of such termination of employment, subject to pro-rata vesting under Subsection (p) below, or to any greater extent permitted by the Committee, pursuant to Subsections (c) and (q), at any time prior to the Expiration date of such Option. In the event of the Optionee's legal disability, such Option may be so exercised by the Optionee's legal representative. (g) Retirement of Optionee. If any Optionee retires in accordance with the retirement policy of the Company, or with the express consent of the Board, and his employment with the Company and all related corporations is terminated as a consequence of such retirement prior to the Expiration Date of his Option, such may be exercised by the Optionee, to the extent of the number of Shares with respect to which the Optionee could have exercised it on the date of his retirement, subject to pro-rata vesting under Subsection (p)below, or to any greater extent permitted by the Committee, pursuant to Subsections (c) and (q), at any time prior to the Expiration date of such Option. (h) Transferability. No Option shall be assignable or transferable by an Optionee otherwise than by will or by the laws of descent and distribution, and during the lifetime of the Optionee, the Option shall be exercisable only by him, or in the event of his legal disability, by his legal representative. Notwithstanding the foregoing, the Committee may grant non-qualified Options that are transferable, without payment of consideration, to immediate family members (i.e., spouses, children and grandchildren) of the Optionee or to trusts for, or partnerships whose only partners are, such family members. The Committee may also amend outstanding non-qualified Options to provide for such transferability. (i) Rights as a Stockholder. An Optionee shall have no rights as a stockholder with respect to any Shares covered by his Option until the issuance of a stock certificate to him representing such Shares. (j) Sequential Exercise of Option. Options granted under the Plan shall be exercisable at the discretion of the Optionee without regard to the price or the date of grant of any other outstanding Option which was granted under this Plan or any other plan of the Company or a related corporation, or EX-112 a predecessor of the Company or a related corporation before or after the granting of such Option to the same Optionee to purchase Shares, or to purchase stock in a corporation which (at the time of granting of such option) was a related corporation or to purchase stock in a predecessor corporation of the Company or a related corporation. (k) Ten Percent Shareholder. Any other provision of the Plan notwithstanding, if an Eligible Individual owns more than ten percent (10%) of the total combined voting power of all shares of stock of the Company or of a related corporation at the time an incentive stock option is granted to such Eligible Individual, the option price of the incentive stock option shall not be less than one hundred ten percent (110%) of the fair market value of the optioned Shares on the date such incentive stock option is granted, and such incentive stock option by its terms shall not be exercisable after the expiration of five (5) years from the date such incentive stock option is granted. For purposes of the Subsection, an Eligible Individual shall be considered to own any shares of the Company or a related corporation which are attributed to such Eligible Individual under Section 425(d) of the Code. (l) Annual Limit on Grant of Incentive Stock Options. The aggregate fair market value (determined as of the time an incentive stock option is granted) of the Shares for which an Eligible Individual may be granted incentive stock options in any calendar year (under the Plan and any other incentive stock option plan of the Company or a relate corporation) shall not exceed one hundred thousand dollars ($100,000), or such other annual limit as may be in effect under the Code at the time the incentive stock option is granted. In addition, the aggregate fair market value of the stock exercisable for the first time by an Eligible Individual during any calendar year shall not exceed $100,000. (m) Option Agreement and Further Conditions. As soon as practicable after the grant of an Option, each Optionee shall enter into, and be bound by the terms of, a stock option agreement (the "Option Agreement") which shall state the number of Shares to which the Option pertain. The Option Agreement shall set forth such terms, conditions and restrictions regarding the Option not inconsistent with the Plan as the Committee, in its discretion, may impose. The Committee may impose further conditions upon the exercisability of Options and restrictions on transferability with respect to Shares issued upon exercise of Options. (n) Withholding. The obligation of the Company to deliver Shares upon the exercise of any Option shall be subject to any applicable federal, state and local tax withholding requirements. (o) Change in Control. In the event of a Change in Control of the Company, as defined below, and notwithstanding any provision of this Plan to the contrary, all Options which have not terminated as of the date of such "Change in Control" and are which then held by any Optionee, Optionee's estate, personal representative or legal representative, shall, as of the date of such "Change of Control" become immediately exercisable notwithstanding the exercise periods specified in Subsection (c) and the exercise periods specified in the relevant Option Agreement. A "Change of Control" shall be deemed to have taken place upon the date when (i) an individual, firm, corporation, partnership or other entity (other than the Company, any subsidiary of the Company, or any employee benefit plan of the Company or a subsidiary of the Company), together with all affiliates and associates (as such terms are defined in Rule 12(b)-2 under the Securities Exchange Act of 1934, as amended) shall become the beneficial owner of 20% or more of the common shares of the Company the outstanding; providing, however, that this subsection (i) shall not apply to Peter McCausland ("McCausland"), unless and until McCausland, together with all affiliates and associates, becomes the EX-113 beneficial owner of 30% or more of the common shares of the Company than outstanding; (ii) stockholders approve the consummation of any merger of the Company or any sale or other disposition of all or substantially all of its assets, if the stockholders of the Company immediately before such transaction own, immediately after consummation of such transaction, equity securities (other than options and other rights to acquire equity securities) possessing less than 50% of the voting power of the surviving or acquiring corporation; or (iii) a change in the majority of the Board occurs during any 24-month period without the approval of a majority of directors in office at the beginning of such period. (p) Pro-Rata Vesting. In the event an Optionee ceases to be an employee of the Company or a subsidiary by reason of retirement, death or disability after the grant to such person of a nonstatutory Option but before the Option has become exercisable in full, a pro rata portion of the shares subject to the current fiscal year's installment of such Option shall become exercisable, based upon the proportion which the number of full calendar months in such fiscal year prior to such termination of employment bears to the 12 calendar months in the fiscal year. (q) Acceleration of Vesting. Notwithstanding any other provision of this Plan, the Committee may accelerate vesting and exercisability of any outstanding nonstatutory option or any portion thereof to a date or dates designated by the Committee in accordancewith such terms and subject to such conditions, if any, as the Committee shall specify and as are agreed to by the Optionee. (r) Maximum Shares to be Granted to an Optionee. The maximum number of shares of Common Stock upon which Options may be granted to any Optionee in any fiscal year of the Company shall be 200,000, subject to adjustment as provided in Section 7 of this Plan. 6. Investment Purpose Each Optionee or his legal representative or beneficiaries, may be required to give satisfactory assurance that Shares acquired upon exercise of an Option are being acquired for investment not with a view to distribution, and certificates representing such Shares may be legended accordingly. Such Shares shall be transferable thereafter only if the proposed transfer is permissible under the Plan and the Option and if, in the opinion of counsel (who shall be satisfactory to the Company), such transfer at such time be in compliance with applicable securities laws. 7. Adjustments The number of Shares which may be issued under the Plan, as stated in Section 4 hereof, and the number of Shares issuable upon exercise of outstanding Options under the Plan (as well as the exercise price per share under such outstanding Options) shall be equitably adjusted by the Committee to reflect any stock dividend, stock split, share combination, or similar change in capitalization of the Company. In the event the Company is liquidated or a corporate transaction described in Section 425(a) of the Code and the Treasury Regulations issued thereunder occurs (as, for example, a merger, consolidation, acquisition of property or stock separation, or reorganization), each outstanding Option shall be assumed by the surviving or successor corporation, if any, provided, however, that the Committee may terminate each outstanding Option if it determines that such assumption would not be in the best interests if the Company or a related corporation. The Committee shall give each Optionee to whom an outstanding Option has been granted fourteen (14) days notice prior to EX-114 such termination (by reason of such liquidation or corporate transaction), so that any outstanding Option or portion thereof may be exercised up to, and including the earlier of: (i) the date immediately preceding such termination, or (ii) the Expiration date of such Option. In such event, the Committee may, in its sole discretion, allow each such Optionee (except directors unless the exercisability of Options is accelerated pursuant to Section 5(o) hereof to exercise his Option in full or in part (if it has not otherwise terminated) regardless of the provisions of Section 5(c) hereof or of the terms of any Option Agreement. The Committee may in its discretion, change the number of Shares issuable upon exercise of outstanding Options (except with respect to Options held by directors). 8. Amendment or Discontinuance of the Plan The Board at any time, and from time to time, may suspend or discontinue the Plan or amend it in any respect whatsoever, provided, however, that, without the approval of the stockholders of the Company (which approval, in the case of a change in the maximum number of Shares with respect to which grants may be made under the Plan, may be obtained within twelve months of the date the change in the maximum number of Shares is adopted by the Board): (a) the class of individuals eligible to receive Options shall not be changed, (b) the maximum number of Shares with respect to which grants may be made under the Plan shall not be increased except as permitted under Section 7 hereof, (c) the limitations on the price at which Options may be granted shall not be changed, and (d) the duration of the plan under Section 13 shall materially impair the rights of any holder of an outstanding Option without the consent of such holder (or make any change that would result in the loss of the availability of the exemption provided by Rule 16b-3 promulgated under Section 16(b) of the Securities Exchange Act of 1934). 9. Absence of Rights The recommendation or selection of an Eligible Individual as a recipient of an Option under the Plan shall not entitle such person to any Option unless and until the grant actually has been made by appropriate action of the Committee; and any such grant is subject to the provisions of the Plan. Further, the granting of an Option to a person shall not entitle that person to continued employment, and the Company shall have the absolute right, in its discretion, to retire such person in accordance with its retirement policies or otherwise to terminate his employment, whether or not such termination may result in a partial or total termination of his Option. 10. Application of Funds The funds received by the Company upon the exercise of Options and otherwise under the Plan shall be used for general corporate purposes. 11. Shareholder Approval This Plan is subject to the approval of the holders of at least a majority of the outstanding Shares, which approval was obtained on June 5, 1985, which date was within 12 months of the date the Plan was adopted by the Company. 12. No Obligation to Exercise Option The granting of an Option shall impose no obligation upon an Optionee to exercise such Option. 13. Termination of Plan EX-115 No Options may be granted after June 4, 1999, provided, however, that the Plan and all outstanding Options shall remain in effect until such Options have expired or are terminated in accordance with the Plan. EX-10 7 EXHIBIT 10.2 - AMENDMENT TO 1989 NON-QUALIFIED STOCK OPTION PLAN EX-116 AIRGAS, INC. AMENDMENT TO 1989 NON-QUALIFIED STOCK OPTION PLAN FOR DIRECTORS [NON-EMPLOYEES] (As amended through August 7, 1995) Pursuant to action duly taken by the Board of Directors of Airgas, Inc. (the "Company") at a Regular Meeting held on August 7, 1995, the following amendment to the Company's 1989 Non-Qualified Stock Option Plan for Directors [Non-Employees], as Amended (the "Plan") was adopted to add thereto a new Section 5(i): Section 5(i) Election to Decline Automatic Grant. An Optionee shall have the right to elect (i) to decline any part or all of an automatic grant of an Option pursuant to this Plan or (ii) to revoke a previous election to decline any part or all of an automatic grant of an Option under this Plan, in either event, at any time prior to the date any such grant would otherwise be made, provided than an Optionee who elects to decline any part or all of an automatic grant shall not receive anything in lieu of such grant, either at the time of such election or any time thereafter. Adopted as set forth herein: AIRGAS, INC. By: /s/Todd R. Craun ____________________________ Todd R. Craun, Secretary Dated as of August 7, 1995 EX-10 8 EXHIBIT 10.3 - MANAGEMENT INCENTIVE PLAN EX-117 AIRGAS, INC. MANAGEMENT INCENTIVE PLAN I. Purpose. The purpose of the Airgas, Inc. Management Incentive Plan (the "Plan")is to attract and retain highly qualified management employees who contribute in a substantial degree to the success of the Company by providing them with awards based on objective, performance-based financial targets and subjective operational and strategic goals, thus providing them with an incentive to contribute further to the success of the Company. II. Definitions. For the purposes of the Plan, the following terms shall have the following meanings: (1) Awards. Objective Awards and Subjective Awards made pursuant to the Plan. (2) Board of Directors. The Board of Directors of Airgas, Inc. (3) Committee. The Nominating and Compensation Committee of the Board of Directors or any successor thereto. (4) Company. Airgas, Inc. or Airgas, Inc. and its subsidiaries, as the context requires. (5) Covered Employees. An Employee who is a "covered employee" within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended, as such section may be amended. (6) Employee. An employee who is on the active payroll of the Company or a subsidiary of the Company, whether or not an officer or director, at any time during the period for which an Award is made. (7) Objective Awards. Awards based on objective, performance-based financial targets made pursuant to Section VI(a) hereof. (8) Participant. An Employee who has been designated by the Committee to participate in the Plan pursuant to Section IV hereof. (9) Subjective Awards. Awards based on subjective operational and strategic goals pursuant to Section VI(b) hereof. III. Administration. The Plan shall be administered by the Committee. Committee may make such determinations and take such action in connection with or in relation to the Plan as it deems necessary. Each determination made by the Committee shall be final, binding and conclusive for all purposes and upon all persons. IV. Eligibility Objective Awards and Subjective Awards will be granted to those Employees who shall be selected by the Committee. Such selections, except in the case of the Company's Chief Executive Officer, shall be made after considering the recommendations of the Chief Executive Officer. The Committee shall also give consideration to the contribution made by the Employee to achievement of the Company's established, objectives and such other matters as it shall deem relevant. At the discretion of the Committee, Awards may be EX-118 made to Employees who retired or whose employment terminated after the beginning of the period for which an Award is made, or to the designee or estate of an employee who died during such period. V. Effective Date. The Plan shall become effective as of April 1, 1995, subject to the approval of the Company's stockholders at the Company's 1995 Annual Meeting of Stockholders. VI. Awards. At the beginning of each fiscal year, the Committee shall determine each Participant's potential award level by first setting each Participant's total incentive opportunity under the Plan, which is expressed as a percentage of the Participant's base salary. Total incentive opportunity will range from 25% to a maximum of 50% for the Chief Executive Officer, subject to adjustment at the discretion of the Committee at the beginning of a fiscal year. Such determinations shall be based upon the position of the Participant and such other matters as the Committee shall deem relevant. The Participant's total incentive opportunity, as described above, is divided between Objective Awards and Subjective Awards by the Committee, based upon the position of the Participant and such other matters as the Committee shall deem relevant. The amounts of Awards to participants will be determined by the Committee acting in its discretion. The two types of Awards that may be made under the Plan are as follows: (a) Objective Awards. These are Awards based on corporate-wide or business unit-specific objective, performance-based financial targets as established by the Committee for this purpose at the beginning of each fiscal year. These financial targets are based upon pre-tax profits, operating cash flow (operating income plus depreciation and amortization) and average interest-bearing debt balances. The Committee may modify the amount of the targets if it determines that they are no longer suitable, provided that it may not lower the targets or otherwise increase the Awardsthat may be earned pursuant to the targets. Actual achievement of each of the three financial targets as a percentage of the financial targets can range from 0% to a maximum of 110%. The average of the three achievement percentages must be at least 70% for an Objective Award to be paid, and the maximum average percentage is 110%, beyond which no additional Objective Award can be earned. The maximum amount of an Objective Award that a Participant may receive for any fiscal year shall not exceed $750,000. (b) Subjective Awards. These are awards based on subjective operational and strategic objectives established by the Committee for each participant. These objectives are established by the Committee after considering the recommendations of the Chief Executive Officer and such other matters as the Committee shall deem relevant. Awards will be paid within 75 days of the end of the fiscal year to which they relate based upon the audit by the Company's independent auditors for such fiscal year. Awards under the Plan shall be made in cash, except that the Committee may determine that certain Participants may direct a portion of their Awards into a profit sharing plan of the Company. EX-119 VII. Awards Under Other Plans. Nothing contained in the Plan shall prohibit the Company or any of its subsidiaries from granting special performance or recognition awards under such conditions, and in such form and matter as it sees fit, to Employees (including Participants) for meritorious service of any nature. In addition, nothing contained in the Plan shall prohibit the Company or any of its subsidiaries from establishing other incentive compensation plans providing for the payment of incentive compensation to Employees (including Participants). VIII.Amendment of the Plan. The Board of Directors may discontinue the Plan at any time and may from time to time amend or revise the terms of the Plan as permitted by applicable statutes; provided, however, that no such discontinuance, amendment or revision shall materially adversely affect any right or obligation with respect to any Award theretofore made.
-----END PRIVACY-ENHANCED MESSAGE-----