SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this “ Amendment ”), dated as of June 15,
2009, by and among THERMADYNE INDUSTRIES, INC., a Delaware
corporation (“ Industries ”), THERMAL DYNAMICS
CORPORATION, a Delaware corporation (“ Dynamics
”), VICTOR EQUIPMENT COMPANY, a Delaware corporation (“
Victor ”), C & G SYSTEMS, INC., an Illinois
corporation (“ C & G ”), STOODY COMPANY, a
Delaware corporation (“ Stoody ”), THERMADYNE
INTERNATIONAL CORP., a Delaware corporation (“
International ”, and collectively with Stoody, C &
G, Victor, Dynamics and Industries, the “ Borrowers
”), the other persons designated as Credit Parties on the
signature pages hereof, GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (“ Agent ”) and the Persons
signatory hereto as Lenders. Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings
ascribed to them in Annex A to the Credit Agreement (as
hereinafter defined).
WHEREAS, the
Borrowers, the other Credit Parties, Agent and Lenders have entered
into that certain Third Amended and Restated Credit Agreement dated
as of June 29, 2007 (as further amended, supplemented,
restated or otherwise modified from time to time, the “
Credit Agreement ”);
WHEREAS, the
Borrowers and the other Credit Parties have requested that Agent
and Lenders amend certain provisions of the Credit Agreement;
and
WHEREAS, the Agent
and Lenders have agreed to amend the Credit Agreement as set forth
herein.
NOW THEREFORE, in
consideration of the mutual execution hereof and other good and
valuable consideration, the parties hereto agree as
follows:
1.
Amendments to Credit Agreement . Subject to the satisfaction
of the conditions precedent set forth in Section 3 hereof, the
parties hereto hereby agree to amend the Credit Agreement as
follows:
(a)
Subsection 1.3(b)(ii) of the Credit Agreement is hereby
amended by amending and restating the last sentence thereof to read
in its entirety as follows:
“The
following shall not be subject to mandatory prepayment under this
clause (ii): (1) proceeds of sales of Inventory in the ordinary
course of business, (2) the proceeds of any asset disposition
or series of asset dispositions otherwise permitted under
Section 6.8 (other than subsection 6.8(f) ) not
in excess of $500,000, and (3) the proceeds of the asset
disposition permitted under subsection 6.8(f)
.”
(b)
Subsection 1.5(a) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“(a) Borrowers
shall pay interest to Agent, for the ratable benefit of Lenders in
accordance with the various Loans being made by each Lender, in
arrears on each applicable Interest Payment Date, at the following
rates: (i) with respect to the Revolving Credit Advances, the
Index Rate plus the Applicable Index Margin per annum or, at the
election of Borrower Representative, the applicable LIBOR Rate
plus the Applicable LIBOR Margin per annum, based on the
aggregate Revolving Credit Advances outstanding from time to time;
and (ii) with respect to the Swing Line Loan, the Index Rate
plus the Applicable Index Margin.
The Applicable
Margins are as follows:
Applicable Index
Margin
2.50%
Applicable LIBOR
Margin
4.00%
Applicable L/C
Margin
4.00%
Applicable Unused
Line Fee Margin
1.00%
; provided,
that the Applicable Unused Line Fee Margin shall be reduced to
0.75% for each month during which the Unused Line as a percentage
of the Maximum Amount is less than 50%.
(c)
Subsection 1.5(b) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“(b)
[Intentionally Deleted]”
(d)
Subsection 1.5(e) of the Credit Agreement is hereby amended
by deleting the last sentence thereof in its entirety.
(e)
Subsection 1.7(b) of the Credit Agreement is hereby amended
by inserting “(the “ Unused Line ”)”
prior to the period at the end thereof.
(f)
Subsection 1.7(c) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“(c) If
Borrowers prepay the Revolving Loan and reduce or terminate the
Revolving Loan Commitment on or prior to June 27, 2011,
whether voluntarily or involuntarily and whether before or after
acceleration of the Obligations, or if the Revolving Loan
Commitment is otherwise terminated, Borrowers shall pay to Agent,
for the benefit of Lenders, as liquidated damages and compensation
for the costs of being prepared to make funds available hereunder
an amount equal to (i) two percent (2.0%) multiplied by the
amount of the reduction of the Revolving Loan Commitment if such
prepayment occurs on or prior to June 27, 2010 and
(ii) one percent (1.0%) multiplied by the amount of
2
the reduction
of the Revolving Loan Commitment if such prepayment occurs after
June 27, 2010 and on or prior to June 27,
2011.”
(g)
Subsection 6.3(a) of the Credit Agreement is hereby amended
by amending and restating clause (xiv) thereof to read in its
entirety as follows:
“(xiv) Indebtedness
consisting of (A) Second Lien Loan Obligations of Borrowers to
Second Lien Lenders (as defined in the Intercreditor Agreement)
under the Second Lien Credit Agreement in an aggregate principal
amount not to exceed $35,000,000 or (B) other Indebtedness on
terms and conditions satisfactory to Agent; provided that the
aggregate principal amount of Indebtedness permitted by the
foregoing clauses (A) and (B) shall not exceed
$35,000,000;”
(h)
Section 6.8 of the Credit Agreement is hereby amended
by deleting the word “and” at the end of subsection
(d) thereof, deleting the period at the end of subsection
(e) thereof and inserting the phrase “, and” in
its place, and adding the following new clause (f):
“(f) the
sale of 73 Gower Street, Preston, Victoria 3072 Australia for fair
market value to an unrelated third party.”
(i)
Subsection 8.1(b) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
“Any Credit
Party fails or neglects to perform, keep or observe any of the
provisions of Sections 1.4, 1.6, 5.4(a), 5.13 or
6 , or any of the provisions set forth in Annexes C
or G , respectively.”
(j) The
definition of “Eligible Equipment” set forth in
Annex A to the Credit Agreement is hereby amended by
amending and restating clause (v) thereof to read in its
entirety as follows:
“(v) as
to which the Agent has not received an appraisal by an independent
appraisal or audit firm designated by the Agent and reasonably
acceptable to the Borrower on or after June 1,
2007;”
(k) Annex
A to the Credit Agreement is hereby amended by
(i) deleting the definitions of “ABL Portion”,
“Applicable ABL Portion Index Margin”,
“Applicable ABL Portion LIBOR Margin”,
“Applicable Cash Flow Portion Index Margin”,
“Applicable Cash Flow Portion LIBOR Margin”,
“Cash Flow Portion” and “Enhanced Financial
Covenants” and (ii) inserting the following definitions or,
if contained therein, amending and restating such definitions to
read in their entirety as follows:
““
ABL Borrowing Base ” means that portion of the
Borrowing Base equal to the sum of the amount represented by
clauses (a)-(i) of the Borrowing Base.”
3
““
Adjusted NOLV ” has the meaning ascribed to it in
clause (i) of the definition of Borrowing
Base.”
““
Amortization Amount ” has the meaning ascribed to it
in clause (i) of the definition of Borrowing
Base.”
““
Amortization Percentage ” has the meaning ascribed to
it in clause (i) of the definition of Borrowing
Base.”
““
Applicable Index Margin ” means the per annum interest
rate margin from time to time in effect and payable in addition to
the Index Rate applicable to the Revolving Loan, as set forth in
Section 1.5(a) .”
““
Applicable LIBOR Margin ” means the per annum interest
rate from time to time in effect and payable in addition to the
LIBOR Rate applicable to the Revolving Loan, as set forth in
Section 1.5(a) .”
““
Applicable Margins ” means collectively the Applicable
L/C Margin, the Applicable Unused Line Fee Margin, the Applicable
Index Margin and the Applicable LIBOR Margin.”
““
Borrowing Base ” means, as of any date of
determination by Agent, from time to time, an amount equal to the
sum at such time of:
(a) up to 85% of
the book value of Collateral Parties’ Eligible Accounts;
plus
(b) the lesser of
(i) up to 85% of the Net Orderly Liquidation Value of the sum
of the Collateral Parties’ Eligible Inventory multiplied by
the then current NOLV Factor, by category, of Eligible Inventory;
and (ii) up to 65% of the book value of sum of the Collateral
Parties’ Eligible Inventory valued at the lower of cost
(determined on a first in, first out basis) or market;
plus
(c) the lesser of
(i) up to 85% of the Net Orderly Liquidation Value of the sum
of the Collateral Parties’ Eligible In-Transit Inventory
multiplied by the then current NOLV Factor, b
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