exv4w1





Exhibit
4.1



      




2009 AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT




dated as of




August 14, 2009




among




THERMADYNE INDUSTRIES, INC.,




THERMAL DYNAMICS CORPORATION,




VICTOR EQUIPMENT COMPANY,




C & G MERGER CO.,




STOODY COMPANY,




and




THERMADYNE INTERNATIONAL CORP.,




THE GUARANTORS PARTY HERETO,




THE LENDERS PARTY HERETO




and




REGIONS BANK,

as Administrative Agent, Collateral Agent and Funding Agent




 






      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I Definitions
	 	 	2	 
	 
	SECTION 1.01. Defined Terms
	 	 	2	 
	 
	SECTION 1.02. Terms Generally
	 	 	23	 
	 
	SECTION 1.03. Senior Indebtedness
	 	 	23	 
	 
	SECTION 1.04. Borrower Representative
	 	 	24	 
	 
	ARTICLE II The Credits
	 	 	24	 
	 
	SECTION 2.01. Commitments
	 	 	24	 
	 
	SECTION 2.02. Loans
	 	 	25	 
	 
	SECTION 2.03. Borrowing Procedure
	 	 	26	 
	 
	SECTION 2.04. Evidence of Debt; Repayment of Loans
	 	 	26	 
	 
	SECTION 2.05. Fees
	 	 	27	 
	 
	SECTION 2.06. Interest on Loans
	 	 	27	 
	 
	SECTION 2.07. Default Interest
	 	 	28	 
	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	28	 
	 
	SECTION 2.09. Optional Prepayment
	 	 	30	 
	 
	SECTION 2.10. Mandatory Prepayments
	 	 	30	 
	 
	SECTION 2.11. Reserve Requirements; Change in Circumstances
	 	 	31	 
	 
	SECTION 2.12. Indemnity
	 	 	33	 
	 
	SECTION 2.13. Pro Rata Treatment
	 	 	33	 
	 
	SECTION 2.14. Sharing of Setoffs
	 	 	33	 
	 
	SECTION 2.15. Payments
	 	 	34	 
	 
	SECTION 2.16. Taxes
	 	 	35	 
	 
	SECTION 2.17. Assignment of Loans Under Certain Circumstances; Duty to Mitigate
	 	 	36	 






 i 









 





	 	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	37	 
	 
	SECTION 3.01. Corporate Existence; Compliance with Law; FEIN
	 	 	37	 
	 
	SECTION 3.02. Executive Offices, Collateral Locations
	 	 	37	 
	 
	SECTION 3.03. Corporate Power, Authorization, Enforceable Obligations
	 	 	37	 
	 
	SECTION 3.04. Financial Statements
	 	 	38	 
	 
	SECTION 3.05. Material Adverse Effect
	 	 	38	 
	 
	SECTION 3.06. Ownership of Property; Liens
	 	 	39	 
	 
	SECTION 3.07. Labor Matters
	 	 	39	 
	 
	SECTION 3.08. Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness
	 	 	40	 
	 
	SECTION 3.09. Government Regulation
	 	 	40	 
	 
	SECTION 3.10. Margin Regulations
	 	 	40	 
	 
	SECTION 3.11. Taxes
	 	 	40	 
	 
	SECTION 3.12. ERISA
	 	 	41	 
	 
	SECTION 3.13. Litigation
	 	 	42	 
	 
	SECTION 3.14. Brokers
	 	 	42	 
	 
	SECTION 3.15. Intellectual Property
	 	 	42	 
	 
	SECTION 3.16. Full Disclosure
	 	 	42	 
	 
	SECTION 3.17. Environmental Matters
	 	 	42	 
	 
	SECTION 3.18. Insurance
	 	 	43	 
	 
	SECTION 3.19. Deposit and Disbursement Accounts
	 	 	43	 
	 
	SECTION 3.20. Government Contracts
	 	 	43	 
	 
	SECTION 3.21. Customer and Trade Relations
	 	 	44	 
	 
	SECTION 3.22. Bonding; Licenses
	 	 	44	 






 ii 









 





	 	 	 	 	 
	SECTION 3.23. Solvency
	 	 	44	 
	 
	SECTION 3.24. Status of Holdings
	 	 	44	 
	 
	SECTION 3.25. Collateral Documents
	 	 	44	 
	 
	ARTICLE IV Conditions of Lending
	 	 	45	 
	 
	ARTICLE V Affirmative Covenants
	 	 	47	 
	 
	SECTION 5.01. Maintenance of Existence and Conduct of Business
	 	 	48	 
	 
	SECTION 5.02. Payment of Charges
	 	 	48	 
	 
	SECTION 5.03. Financial Statements, Reports, etc
	 	 	48	 
	 
	SECTION 5.04. Insurance; Damage to or Destruction of Collateral
	 	 	50	 
	 
	SECTION 5.05. Compliance with Laws
	 	 	51	 
	 
	SECTION 5.06. Intellectual Property
	 	 	51	 
	 
	SECTION 5.07. Environmental Matters
	 	 	51	 
	 
	SECTION 5.08. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real Estate Purchases
	 	 	52	 
	 
	SECTION 5.09. Use of Proceeds
	 	 	53	 
	 
	SECTION 5.10. Cash Management Systems
	 	 	53	 
	 
	SECTION 5.11. Further Assurances
	 	 	53	 
	 
	ARTICLE VI Negative Covenants
	 	 	53	 
	 
	SECTION 6.01. Mergers, Subsidiaries, Etc
	 	 	53	 
	 
	SECTION 6.02. Investments; Loans and Advances
	 	 	53	 
	 
	SECTION 6.03. Indebtedness
	 	 	55	 
	 
	SECTION 6.04. Employee Loans and Affiliate Transactions
	 	 	58	 
	 
	SECTION 6.05. Capital Structure and Business
	 	 	58	 
	 
	SECTION 6.06. Guaranteed Indebtedness
	 	 	58	 
	 
	SECTION 6.07. Liens
	 	 	59	 






 iii 









 





	 	 	 	 	 
	SECTION 6.08. Sale of Stock and Assets
	 	 	59	 
	 
	SECTION 6.09. ERISA
	 	 	60	 
	 
	SECTION 6.10. Senior Leverage Ratio
	 	 	60	 
	 
	SECTION 6.11. Sale Leasebacks
	 	 	60	 
	 
	SECTION 6.12. Cancellation of Indebtedness
	 	 	60	 
	 
	SECTION 6.13. Restricted Payments
	 	 	60	 
	 
	SECTION 6.14. Change of Corporate Name, State of
Incorporation or Location; Change of Fiscal Year
	 	 	61	 
	 
	SECTION 6.15. No Impairment of Intercompany Transfers
	 	 	62	 
	 
	SECTION 6.16. Real Estate Purchases
	 	 	62	 
	 
	SECTION 6.17. Changes Relating to High Yield Notes
	 	 	62	 
	 
	SECTION 6.18. Holdings
	 	 	62	 
	 
	ARTICLE VII Events of Default; Rights and Remedies
	 	 	63	 
	 
	SECTION 7.01. Events of Default
	 	 	63	 
	 
	SECTION 7.02. Remedies
	 	 	64	 
	 
	SECTION 7.03. Waivers by Credit Parties
	 	 	65	 
	 
	ARTICLE VIII The Agents
	 	 	65	 
	 
	ARTICLE IX Miscellaneous
	 	 	67	 
	 
	SECTION 9.01. Notices
	 	 	67	 
	 
	SECTION 9.02. Survival of Agreement
	 	 	68	 
	 
	SECTION 9.03. Binding Effect
	 	 	68	 
	 
	SECTION 9.04. Successors and Assigns
	 	 	68	 
	 
	SECTION 9.05. Expenses; Indemnity
	 	 	72	 
	 
	SECTION 9.06. Right of Setoff
	 	 	73	 
	 
	SECTION 9.07. Applicable Law
	 	 	73	 
	 
	SECTION 9.08. Waivers; Amendment
	 	 	73	 






 iv 









 





	 	 	 	 	 
	SECTION 9.09. Interest Rate Limitation
	 	 	74	 
	 
	SECTION 9.10. Entire Agreement
	 	 	75	 
	 
	SECTION 9.11. WAIVER OF JURY TRIAL
	 	 	75	 
	 
	SECTION 9.12. Severability
	 	 	75	 
	 
	SECTION 9.13. Counterparts
	 	 	75	 
	 
	SECTION 9.14. Headings
	 	 	75	 
	 
	SECTION 9.15. Jurisdiction; Consent to Service of Process
	 	 	76	 
	 
	SECTION 9.16. Confidentiality
	 	 	76	 
	 
	SECTION 9.17. USA Patriot Act Notice
	 	 	77	 
	 
	SECTION 9.18. Intercreditor Agreement
	 	 	77	 
	 
	ARTICLE X Cross-Guaranty
	 	 	77	 
	 
	SECTION 10.01. Cross-Guaranty
	 	 	77	 
	 
	SECTION 10.02. Waivers by Credit Parties
	 	 	78	 
	 
	SECTION 10.03. Benefit of Guaranty
	 	 	78	 
	 
	SECTION 10.04. Waiver of Subrogation, Etc
	 	 	78	 
	 
	SECTION 10.05. Election of Remedies
	 	 	79	 
	 
	SECTION 10.06. Limitation
	 	 	79	 
	 
	SECTION 10.07. Contribution with Respect to Guaranty
Obligations
	 	 	80	 
	 
	SECTION 10.08. Liability Cumulative
	 	 	80	 
	 
	SECTION 10.09. Guarantee Unconditional
	 	 	81	 
	 
	SECTION 10.10. Foreign Currency Obligations
	 	 	82	 
	 
	SECTION 10.11. Section 956 of the IRC
	 	 	83	 






 v 









 





SCHEDULES




	 	 	 	 	 
	Schedule 1.01 -  Guarantors
	 	 	 	 
	Schedule 3.01 -  Type of Entity; State of Organization; FEIN
	 	 	 	 
	Schedule 3.02 -  Executive Offices; Collateral Locations
	 	 	 	 
	Schedule 3.06 -  Real Estate and Leases
	 	 	 	 
	Schedule 3.07 -  Labor Matters
	 	 	 	 
	Schedule 3.08 -  Ventures, Subsidiaries and Affiliates; Outstanding Stock
	 	 	 	 
	Schedule 3.11 -  Tax Matters
	 	 	 	 
	Schedule 3.12 -  ERISA Plans
	 	 	 	 
	Schedule 3.13 -  Litigation
	 	 	 	 
	Schedule 3.14 -  Brokers
	 	 	 	 
	Schedule 3.15 -  Intellectual Property
	 	 	 	 
	Schedule 3.17 -  Hazardous Materials
	 	 	 	 
	Schedule 3.18 -  Insurance
	 	 	 	 
	Schedule 3.19 -  Deposit and Disbursement Accounts
	 	 	 	 
	Schedule 3.20 -  Government Contracts
	 	 	 	 
	Schedule 3.22 -  Bonds; Licenses
	 	 	 	 
	Schedule 5.01 -  Trade Names
	 	 	 	 
	Schedule 6.03 -  Indebtedness
	 	 	 	 
	Schedule 6.04(c) -  Transactions with Affiliates
	 	 	 	 
	Schedule 6.07 -  Existing Liens
	 	 	 	 






EXHIBITS




	 	 	 	 	 
	Exhibit A -  Form of Administrative Questionnaire
	 	 	 	 
	Exhibit B -  Form of Assignment and Acceptance
	 	 	 	 
	Exhibit C -  Form of Pledge Agreement
	 	 	 	 
	Exhibit D -  Form of Security Agreement
	 	 	 	 
	Exhibit E -  Form of Opinion of Armstrong Teasdale LLP
	 	 	 	 






 vi 









 





     2009 AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT (this “Agreement”) dated as of August
14, 2009, among THERMADYNE INDUSTRIES, INC., a Delaware corporation (“Industries”), THERMAL
DYNAMICS CORPORATION, a Delaware corporation (“Dynamics”), VICTOR EQUIPMENT COMPANY, a Delaware
corporation (“Victor”), C & G MERGER CO., an Illinois corporation formerly known as C & G Systems, Inc. (“C &
G”), STOODY COMPANY, a Delaware corporation (“Stoody”), and THERMADYNE INTERNATIONAL CORP., a
Delaware corporation (“International” and, together with Stoody, C & G, Victor, Dynamics and
Industries, the “Borrowers”), the Guarantors (as defined in Article I) party hereto, the Lenders
(as defined in Article I) from time to time party hereto and REGIONS BANK, as administrative agent
(in such capacity, the “Administrative Agent”), collateral agent (in such capacity, the “Collateral
Agent”) and funding agent (in such capacity, the “Funding Agent”).



     The Borrowers have requested that Loans (such term and each other capitalized term used but
not defined in this introductory statement having the meaning given it in Article I) be made on the
A&R Effective Date in accordance with the terms and conditions hereof, in an aggregate principal
amount not in excess of $25,000,000. The proceeds of the Loans resulting from this amendment and
restatement of the Original Second Lien Credit Agreement are to be used to refinance in their
entirety, principal and interest of the outstanding indebtedness under the Original Second Lien
Credit Agreement, and for general corporate purposes. The proceeds of the Original Second Lien
Credit Agreement were utilized solely to refinance a portion of the outstanding Revolving Loan.



     The Lenders are willing to extend such credit to the Borrowers on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:



 









 





ARTICLE I




Definitions




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:



     “A&R Effective Date” shall mean August 14, 2009.



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.



     “Account Debtor” shall mean any Person who may become obligated to any Credit Party under,
with respect to, or on account of, an Account, Chattel Paper or General Intangibles (including a
payment intangible).



     “Accounts” shall mean all “accounts”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, including (a) all accounts receivable, other receivables,
book debts and other forms of obligations (other than forms of obligations evidenced by Chattel
Paper, or Instruments), (including any such obligations that may be characterized as an account or
contract right under the Code), (b) all of each Credit Party’s rights in, to and under all purchase
orders or receipts for goods or services, (c) all of each Credit Party’s rights to any goods
represented by any of the foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to any Credit Party for property sold, leased, licensed, assigned or
otherwise disposed of, for a policy of insurance issued or to be issued, for a secondary obligation
incurred or to be incurred, for energy provided or to be provided, for the use or hire of a vessel
under a charter or other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with any other
transaction (whether or not yet earned by performance on the part of such Credit Party), (e) all
health care insurance receivables and (f) all collateral security of any kind, given by any Account
Debtor or any other Person with respect to any of the foregoing.



     “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.



     “Administrative Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.



     “Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary,
10% or more of the Stock having ordinary voting power in the election of directors of such



2









 







Person, (b) each Person that controls, is controlled by or is under common control with such
Person, (c) each of such Person’s officers, directors, joint venturers and partners and (d) in the
case of Borrowers, the immediate family members, spouses and lineal descendants of individuals who
are Affiliates of any Borrower. For the purposes of this definition, “control” of a Person shall
mean the possession, directly or indirectly, of the power to direct or cause the direction of its
management or policies, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that neither the Administrative Agent, the Collateral Agent nor any
Lender shall be deemed to be an Affiliate of the Credit Parties.



     “Agents” shall have the meaning assigned to such term in Article X.



     “Agreement” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Alternate Base Rate” shall mean, for any day, a floating rate per annum equal to the greater
of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1.00% and (c) 600 basis points. If the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be.



     “Applicable Percentage” shall mean (i) with respect to any Eurodollar Loan, 6.00%, and (ii)
with respect to any ABR Loan, 6.00%.



     “A&R Effective Date Joinder” shall mean the Joinder Agreement dated as of the A&R Effective
Date executed by the Australian Obligors for purposes of becoming parties to the Security Agreement
and grantors of a Lien pursuant to the terms and conditions thereof in respect of the Australian
Collateral.



     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
(or the Funding Agent, as applicable) and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the Administrative Agent.



     “Australian Collateral” shall mean all of the Australian Obligors’ right, title and interest
in, to, and under all property and assets consisting of, whether now owned, held or owing to,
and/or hereafter acquired by or arising in favor of any such Australian Obligor, and regardless of
whether located, consisting of Inventory, receivables, Accounts and other related assets (including
without limitation books, records, Documents and insurances Proceeds), all shares, stock, equity
interests and other Investment Property, including the shares, stock, limited liability company,
partnership and/or other similar ownership interests in any subsidiaries and/or any other Person,
and any and all other assets which are subject to a Lien pursuant to the terms and conditions of
any of the First Lien Facilities from time to time, and any Proceeds of any of the foregoing, in
each case (subject to Section 10.09(ii) hereof) solely to the extent any such



3









 







property and assets is subject to such Lien pursuant to the terms and conditions of any of the
First Lien Facilities (which as of the A&R Effective Date, for the avoidance of doubt, does not
include property or assets located in New South Wales or South Australia). Capitalized terms used
in this definition of Australian Collateral and defined in the Code (and not otherwise defined in
the Loan Documents) shall have the meaning given to them in the relevant Code.



     “Australian Obligors” shall mean Cigweld PTY LTD and Thermadyne Australia PTY LTD, each a
company organized under the laws of Australia and any other Subsidiary organized under such laws
from time to time.



     “Bankruptcy Code” shall mean the provisions of Title 11 of the United States Code, 11 U.S.C.
§§ 101 et seq.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.



     “Borrowers” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Borrowing” shall mean Loans made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.



     “Borrowing Request” shall mean a request by a Borrower for a Borrowing in accordance with the
terms of Section 2.03.



     “Breakage Event” shall have the meaning set forth in Section 2.15(a) of this Agreement.



     “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New
York, New York, are authorized or required by law to close; provided, however, that when used in
connection with a Eurodollar Loan, the term “Business Day” shall mean any such day that is also a
day on which banks are generally open in the City of London for dealings in interbank or foreign
exchange transactions.



     “C & G” shall have the meaning assigned to such term in the preamble to this Agreement.



     “C&G Holding” shall mean C&G Systems Holding, Inc., a Delaware corporation.



     “Capital Expenditures” means, with respect to any Person, all expenditures (by the expenditure
of cash or the incurrence of Indebtedness) by such Person during any measuring period for any fixed
assets or improvements or for replacements, substitutions or additions thereto that have a useful
life of more than one year and that are required to be capitalized under GAAP, plus, without
duplication, cash investments in Foreign Subsidiaries.



     “Capital Lease” shall mean, with respect to any Person, any lease of any property (whether
real, personal or mixed) by such Person as lessee that, in accordance with GAAP, would be required
to be classified and accounted for as a capital lease on a balance sheet of such Person.



4









 





     “Capital Lease Obligation” shall mean, with respect to any Capital Lease of any Person, the
amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a
balance sheet of such lessee in respect of such Capital Lease.



     “CERCLA” shall have the meaning assigned to such term in the definition of Environmental Laws.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.13, by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



     A “Change of Control” shall mean any of the following: (a) any person or group of persons
(within the meaning of the Securities Exchange Act of 1934), other than the holders of the High
Yield Notes, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 30% or more
of the issued and outstanding shares of capital Stock of Holdings having the right to vote for the
election of directors of Holdings under ordinary circumstances; (b) during any period of twelve
consecutive calendar months, individuals who at the beginning of such period constituted the board
of directors of Holdings (together with any new directors whose election by the board of directors
of Holdings or whose nomination for election by the Stockholders of Holdings was approved by a vote
of at least two-thirds of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was previously so approved)
cease for any reason other than death or disability to constitute a majority of the directors then
in office; or (c) a “Change of Control” as defined in the Indenture.



     “Chapter 11 Cases” shall mean, the cases under Chapter 11 of the Bankruptcy Code commenced by,
among others, the Borrowers, styled In re Thermadyne Holdings Corporation, et al., Chapter 11 Case
No. 01-52840-399.



     “Charges” shall mean all federal, state, county, city, municipal, local, foreign or other
governmental taxes (including taxes owed to the PBGC at the time due and payable), levies,
assessments, charges, liens, claims or encumbrances upon or relating to (a) the Collateral, (b) the
Obligations, (c) the employees, payroll, income or gross receipts of any Credit Party, (d) any
Credit Party’s ownership or use of any properties or other assets, or (e) any other aspect of any
Credit Party’s business.



     “Chattel Paper” shall mean any “chattel paper”, as such term is defined in the Code, including
electronic chattel paper, now owned or hereafter acquired by any Credit Party.



     “Code” shall mean the Uniform Commercial Code as the same may, from time to time, be enacted
and in effect in the State of New York; provided that to the extent that the Code is used to define
any term herein or in any Loan Document and such term is defined differently in



5









 







different Articles or Divisions of the Code, the definition of such term contained in Article or
Division 9 shall govern; provided further, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or remedies with
respect to, the Administrative Agent’s, the Collateral Agent’s or any Lender’s Lien on any
Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction
other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted
and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to
such attachment, perfection, priority or remedies and for purposes of definitions related to such
provisions.



     “Collateral” shall mean the property covered by the Security Agreement, the Pledge Agreement
and the other Collateral Documents and any other property, real or personal, tangible or
intangible, now existing or hereafter acquired, that may at any time be or become subject to a
security interest or Lien in favor of the Administrative Agent or the Collateral Agent, in their
individual capacity and on behalf of the Lenders, to secure the Obligations. For the avoidance of
doubt, it is agreed that the property of an Australian Obligor constitutes Collateral only to the
extent such property constitutes Australian Collateral.



     “Collateral Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “Collateral Documents” shall mean the Security Agreement, the Pledge Agreement, the
Guaranties, the Intercreditor Agreement, and all similar agreements (including the A&R Effective
Date Joinder) entered into guaranteeing payment of, or granting a Lien upon property as security
for payment of, the Obligations.



     “Commitment” shall mean the Funding Agent’s obligation (subject to the assignments and
transfers by each applicable Lender and the receipt of funds by the Funding Agent, in each case as
set forth in Section 2.01 hereof and in the Funds Flow Memorandum) to fund (or deemed to have
funded) to the Borrowers the A&R Effective Date by being deemed to have funded, and funding,
92.346% of $25,000,000 in aggregate principal amount of Loans, which shall satisfy the obligations
to fund Loans hereunder.



     “Contracts” shall mean all “contracts”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, in any event, including all contracts, undertakings, or
agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under
which any Credit Party may now or hereafter have any right, title or interest, including any
agreement relating to the terms of payment or the terms of performance of any Account.



     “Control Letter” shall mean an agreement between the Collateral Agent and (i) the issuer of
uncertificated securities with respect to uncertificated securities in the name of any Credit
Party, (ii) a securities intermediary with respect to securities, whether certificated or
uncertificated, securities entitlements and other financial assets held in a securities account in
the name of any Credit Party, (iii) a futures commission merchant or clearing house, as applicable,
with respect to commodity accounts and commodity contracts held by any Credit Party, whereby, among
other things, the issuer, securities intermediary or futures commission merchant limits any
security interest in the applicable financial assets in a manner reasonably satisfactory



6









 







to the First Lien Agent and the Collateral Agent, acknowledges the Lien of the First Lien Agent and
the Collateral Agent, on behalf of the First Lien Agent and the Collateral Agent and holders of
First Priority Liens and/or the Secured Parties (as applicable), on such financial assets, and
agrees to follow the instructions or entitlement orders of the First Lien Agent or the Collateral
Agent (as applicable) without further consent by the affected Credit Party.



     “Copyright License” shall mean rights under any written agreement now owned or herein after
acquired by any Credit Party granting any right to use any Copyright.



     “Copyrights” shall mean all of the following now owned or hereafter adopted or acquired by any
Credit Party: (a) all copyrights and works of authorship (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright Office or in any similar
office or agency of the United States, any state or territory thereof, or any other country or any
political subdivision thereof, and (b) all reissues, extensions or renewals thereof.



     “Credit Parties” shall mean the Borrowers and the Guarantors; provided that for purposes of
Article VI of this Agreement, Thermadyne Welding Products Canada Ltd. shall also be a Credit Party.



     “Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.



     “Deposit Accounts” shall mean all “deposit accounts” as such term is defined in the Code, now
or hereafter held in the name of any Credit Party.



     “Documents” shall mean all “documents”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located.



     “Dollars” or “$” shall mean lawful money of the United States of America.



     “Domestic Subsidiaries” shall mean all Subsidiaries incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.



     “Dynamics” shall have the meaning assigned to such term in the preamble to this Agreement.



     “EBITDA” means, with respect to any Person for any fiscal period, without duplication, an
amount equal to (a) consolidated net income of such Person for such period determined in accordance
with GAAP, minus (b) the sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items and dispositions of discontinued operations for such period, (iv) any aggregate
net gain (but not any aggregate net loss) during such period arising from the sale, exchange or
other disposition of capital assets by such Person (including any fixed assets, whether tangible or
intangible, all inventory sold in conjunction with the disposition of fixed assets and all
securities), and (v) any other non-cash gains that have been added in determining consolidated net
income, in each case to the extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication, plus



7









 




(c) the sum of (i) any provision for income taxes, (ii) Interest Expense, (iii) loss from
extraordinary items and dispositions of discontinued operations and from impairments for such
period (which loss, for the avoidance of doubt, shall in no case include operating losses from
discontinued operations), (iv) depreciation and amortization for such period, (v) amortized debt
discount for such period, (vi) the amount of any deduction to consolidated net income as the result
of any grant to any members of the management of such Person of any Stock, (vi) the accrual, net of
any payment in cash, related to the net periodic post retirement benefits, and (vii) any non-cash
loss resulting from a revaluation of any interest rate swap, plus or minus as applicable (d) the
impact of any net change in the Borrowers’ LIFO inventory reserve. For purposes of this
definition, the following items shall be excluded in determining consolidated net income of a
Person: (1) the income (or deficit) of any other Person accrued prior to the date it became a
Subsidiary of, or was merged or consolidated into, such Person or any of such Person’s
Subsidiaries; (2) the income (or deficit) of any other Person (other than a Subsidiary) in which
such Person has an ownership interest, except to the extent any such income has actually been
received by such Person in the form of cash dividends or distributions; (3) the undistributed
earnings of any Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary; (4) any restoration
to income of any contingency reserve, except to the extent that provision for such reserve was made
out of income accrued during such period; (5) any write-up of any asset; (6) any net gain from the
collection of the proceeds of life insurance policies; (7) any net gain arising from the
acquisition of any securities, or the extinguishment, under GAAP, of any Indebtedness, of such
Person; (8) in the case of a successor to such Person by consolidation or merger or as a transferee
of its assets, any earnings of such successor prior to such consolidation, merger or transfer of
assets; (9) any deferred credit representing the excess of equity in any Subsidiary of such Person
at the date of acquisition of such Subsidiary over the cost to such Person of the investment in
such Subsidiary; and (10) any write off of previously deferred financing charges incurred in
connection with this Agreement or the First Lien Credit Agreement.




     “Effective Time” shall mean the time on the A&R Effective Date at which the Loans are funded
to the Borrower in accordance with Section 2.01 of this Agreement.



     “Engagement Letter” shall mean the Engagement Letter as of the A&R Effective Date, among
Holdings, the Borrowers and the Administrative Agent and Collateral Agent.



     “Environmental Laws” shall mean all applicable federal, state, local and foreign laws,
statutes, ordinances, codes, rules, standards and regulations, now or hereafter in effect, and any
applicable judicial or administrative interpretation thereof, including any applicable judicial or
administrative order, consent decree, order or judgment, imposing liability or standards of conduct
for or relating to the regulation and protection of the environment and natural resources
(including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata,
wildlife, aquatic species and vegetation) or human health and safety as it relates to environmental
protection. Environmental Laws include any applicable provision of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.)
(“CERCLA”); the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C.
§§ 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et



8









 







seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic Substance Control Act
(15 U.S.C. §§ 2601 et seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water
Pollution Control Act (33 U.S.C. §§ 1251 et seq.); and the Safe Drinking Water Act (42 U.S.C. §§
300(f) et seq.), and any and all applicable regulations promulgated thereunder, and all applicable
analogous state, local and foreign counterparts or equivalents and any transfer of ownership
notification or approval statutes.



     “Environmental Liability” shall mean, with respect to any Person, all liabilities,
obligations, responsibilities, response, remedial and removal costs, investigation and feasibility
study costs, capital costs, operation and maintenance costs, losses, damages, punitive damages,
property damages, natural resource damages, consequential damages, treble damages, costs and
expenses (including all reasonable fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of or related to any
claim, suit, action, investigation, proceeding or demand by any Person arising under or related to
any Environmental Laws, Environmental Permits, or in connection with any Release of a Hazardous
Material at, on, in, under, to or from any real or personal property whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute or common law.



     “Environmental Permits” shall mean all permits, licenses, authorizations, certificates,
approvals or registrations required by any Governmental Authority under any Environmental Laws.



     “Equipment” shall mean all “equipment”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located and, in any event, including all such
Credit Party’s machinery and equipment, including processing equipment, conveyors, machine tools,
data processing and computer equipment, including embedded software and peripheral equipment and
all engineering, processing and manufacturing equipment, office machinery, furniture, materials
handling equipment, tools, attachments, accessories, automotive equipment, trailers, trucks,
forklifts, molds, dies, stamps, motor vehicles, rolling stock and other equipment of every kind and
nature, trade fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all substitutes for
any of the foregoing, fuel therefor, and all manuals, drawings, instructions, warranties and rights
with respect thereto, and all products and proceeds thereof and condemnation awards and insurance
proceeds with respect thereto.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any applicable regulations promulgated thereunder.



     “ERISA Affiliate” shall mean, with respect to any Credit Party, any Person that, together with
such Credit Party, are treated as a single employer within the meaning of Sections 414(b), (c), (m)
or (o) of the IRC.



     “ERISA Event” shall mean, with respect to any Credit Party or any ERISA Affiliate, (a) with
respect to a Title IV Plan, any event described in Section 4043(c) of ERISA for which notice to the
PBGC has not been waived; (b) the withdrawal of any Credit Party or ERISA Affiliate from a Title IV
Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (c) the complete or



9









 







partial withdrawal of any Credit Party or any ERISA Affiliate from any Multiemployer Plan; (d) the
filing of a notice of intent to terminate a Title IV Plan in a distress termination described in
Section 4041(c) of ERISA or the treatment of a plan amendment as a termination under Section 4041
of ERISA; (e) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by
the PBGC; (f) with respect to a Title IV Plan, the existence of an “accumulated funding deficiency”
(as defined in Section 412 of the IRC or Section 302 of ERISA) whether or not waived, or the
failure to make by its due date a required installment under Section 412(m) of the Code or the
failure to make any required contribution to a Multiemployer Plan; (g) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to a Title IV Plan; (h) the making of any amendment to any Title IV
Plan which could result in the imposition of a lien or the posting of a bond or other security; (i)
with respect to a Title IV Plan an event described in Section 4062(e) of ERISA; (j) any other event
or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Title IV Plan or
Multiemployer Plan or for the imposition of liability under Section 4069 or 4212(c) of ERISA; (k)
the termination of a Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; or (l) the loss of a
Qualified Plan’s qualification or tax exempt status.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.



     “Event of Default” shall have the meaning assigned to such term in Article VII.



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.20(a)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender’s failure to comply with Section 2.19(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrowers with respect to such
withholding tax pursuant to Section 2.19(a).



     “Existing Lender” shall mean each Lender on the A&R Effective Date immediately prior to giving
effect to the amendment and restatement contemplated by this Agreement.



     “Federal Funds Effective Rate” shall mean, for any day, a floating rate equal to the weighted
average of the rates on overnight Federal funds transactions with members of the



10









 







Federal Reserve System, as determined by the Administrative Agent in its sole discretion, which
determination shall be final, binding and conclusive absent manifest error.



     “Financial Officer” of any Person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such Person.



     “First Lien Agent” shall mean GE Capital, as Agent under the First Lien Credit Agreement.



     “First Lien Credit Agreement” shall mean the Third Amended and Restated Credit Agreement dated
as of June 28, 2007, among the Borrowers, the other credit parties signatory thereto, the lenders
from time to time party thereto and the First Lien Agent, as the same may be amended, restated,
supplemented, refinanced, replaced, restructured or otherwise modified from time to time in one or
more agreements (in each case, with the same or new lenders), including any agreement extending the
maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or
increasing the amounts outstanding thereunder, in each case, subject to the limitations set forth
in the Intercreditor Agreement.



     “First Lien Facilities” shall mean the senior secured first lien credit facilities provided to
the Borrowers pursuant to the First Lien Credit Agreement.



     “First Priority Liens” shall mean the Liens granted by the Credit Parties to secure the
obligations under the First Lien Credit Agreement subject to the limitations set forth in the
Intercreditor Agreement.



     “Fixtures” means all “fixtures” as such term is defined in the Code, now owned or hereafter
acquired by any Credit Party.



     “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which any Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Funded Debt” means, with respect to any Person, without duplication, all Indebtedness for
borrowed money evidenced by notes, bonds, debentures, or similar evidences of Indebtedness, and
specifically including the full principal amount of Loans re-evidenced, continued and or made
pursuant to Section 2.01 hereof, Capital Lease Obligations, revolving credit and short-term debt,
and also including, in the case of Borrowers, the Obligations and, without duplication, Guaranteed
Indebtedness consisting of guaranties of Funded Debt of other Persons, but expressly excluding any
obligation attributable to any hedging agreement related to currency values or commodity prices
permitted under Section 6.03(a)(viii) or any interest rate agreement or arrangement permitted under
Section 6.03(a)(xii).



     “Funds Flow Memorandum” means the Funds Flow Memorandum with respect to the funding mechanics
for purposes of Section 2.01.



11









 





     “Funding Agent” shall have the meaning assigned to such term in Section 2.01(a).



     “GAAP” shall mean United States generally accepted accounting principles applied on a
consistent basis.



     “GE Capital” shall mean General Electric Capital Corporation, a Delaware corporation.



     “General Intangibles” shall mean all “general intangibles”, as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, including all right, title and interest
that such Credit Party may now or hereafter have in or under any Contract, all payment intangibles,
customer lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor and
reissues, extensions or renewals thereof, rights in Intellectual Property, interests in
partnerships, joint ventures and other business associations, licenses, permits, copyrights, trade
secrets, proprietary or confidential information, inventions (whether or not patented or
patentable), technical information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and records, goodwill
(including the goodwill associated with any Trademark or Trademark License), all rights and claims
in or under insurance policies (including insurance for fire, damage, loss and casualty, whether
covering personal property, real property, tangible rights or intangible rights, all liability,
life, key man and business interruption insurance, and all unearned premiums), uncertificated
securities, choses in action, deposit, checking and other bank accounts, rights to receive tax
refunds and other payments, rights to receive dividends, distributions, cash, Instruments and other
property in respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices and other papers,
including without limitation all tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Credit Party or any computer bureau or service company from
time to time acting for such Credit Party.



     “Governmental Authority” shall mean any nation or government, any state or other political
subdivision thereof, and any agency, department or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.



     “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).



     “Guaranteed Indebtedness” shall mean as to any Person, any obligation of such Person
guaranteeing, providing comfort or otherwise supporting any Indebtedness, lease, dividend, or other
obligation (“primary obligation”) of any other Person (the “primary obligor”) in any manner,
including any obligation or arrangement of such Person to (a) purchase or repurchase any such
primary obligation, (b) advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet condition of the primary
obligor, (c) purchase property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation, (d) protect the beneficiary of such arrangement from loss (other than product
warranties given in the ordinary course of business) or (e) indemnify the



12









 







owner of such primary obligation against loss in respect thereof. The amount of any Guaranteed
Indebtedness at any time shall be deemed to be an amount equal to the lesser at such time of (x)
the stated or determinable amount of the primary obligation in respect of which such Guaranteed
Indebtedness is incurred and (y) the maximum amount for which such Person may be liable pursuant to
the terms of the instrument embodying such Guaranteed Indebtedness, or, if not stated or
determinable, the maximum reasonably anticipated liability (assuming full performance) in respect
thereof.



     “Guaranties” shall mean any guaranty executed by any Guarantor in favor of the Administrative
Agent, the Collateral Agent and the Lenders in respect of the Obligations.



     “Guarantor Payment” shall have the meaning assigned to such term in Section 10.07.



     “Guarantors” shall mean Holdings, C&G Holding, each Domestic Subsidiary of a Borrower (other
than Thermadyne Cylinder Co.) and, subject to the terms and conditions of Section 10.09(ii) hereof,
the Australian Obligors. The Guarantors on the A&R Effective
Date are listed on Schedule 1.01.



     “Hazardous Material” shall mean any substance, material or waste that is regulated as
hazardous, toxic, pollutant, or words of similar meaning or effect, under any Environmental Laws,
including any material or substance that is (a) defined as a “solid waste”, “hazardous waste”,
“hazardous material”, “hazardous substance”, “extremely hazardous waste”, “restricted hazardous
waste”, “pollutant”, “contaminant”, “hazardous constituent”, “special waste”, “toxic substance” or
other similar term or phrase under any Environmental Laws, or (b) petroleum or any fraction or
by-product thereof, asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.



     “High Yield Notes” shall mean the 9.25% Senior Subordinated Notes due 2014 issued by Holdings
and guaranteed by the other Credit Parties pursuant to that certain Indenture dated as of February
5, 2004 (the “Indenture”) in an aggregate principal amount of $175,000,000.



     “Holdings” shall mean Thermadyne Holdings Corporation, a Delaware corporation.



     “Indebtedness” shall mean, with respect to any Person, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase price of property
payment for which is deferred 6 months or more, but excluding obligations to trade creditors
incurred in the ordinary course of business that are unsecured and not overdue by more than 6
months unless being contested in good faith, (b) all reimbursement and other obligations with
respect to letters of credit, bankers’ acceptances and surety bonds, whether or not matured, (c)
all obligations evidenced by notes, bonds, debentures or similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations and the present value (discounted at the Index Rate as in effect on
the A&R Effective Date) of future rental payments under all synthetic leases, (f) all obligations
of such Person under commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all obligations of



13









 







such Person under any foreign exchange contract, currency swap agreement, interest rate swap, cap
or collar agreement or other similar agreement or arrangement designed to alter the risks of that
Person arising from fluctuations in currency values or interest rates, in each case whether
contingent or matured, (h) all Indebtedness referred to above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien
upon or in property or other assets (including accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of such Indebtedness, and
(i) the Obligations.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).



     “Indenture” shall have the meaning assigned to such term in the definition of High Yield
Notes.



     “Index Rate” means, for any day, a floating rate equal to the higher of (i) the rate publicly
quoted from time to time by The Wall Street Journal as the “prime rate” (or, if The Wall Street
Journal ceases quoting a prime rate, the highest per annum rate of interest published by the
Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected Interest
Rates” as the Bank prime loan rate or its equivalent), and (ii) the Federal Funds Rate plus 50
basis points per annum. Each change in any interest rate provided for in this Agreement based upon
the Index Rate shall take effect at the time of such change in the Index Rate.



     “Industries” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Instruments” shall mean all “instruments”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, and, in any event, including all
certificated securities, all certificates of deposit, and all promissory notes and other evidences
of indebtedness, other than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.



     “Intellectual Property” shall mean any and all Licenses, Patents, Copyrights, Trademarks, and
the goodwill associated with such Trademarks.



     “Intercreditor Agreement” shall have the meaning assigned to such term in Section 9.18.



     “Interest Expense” shall mean, with respect to any Person for any fiscal period, interest
expense (whether cash or non-cash) of such Person determined in accordance with GAAP for the
relevant period ended on such date, including, without duplication, interest expense with respect
to any Funded Debt of such Person and interest expense for the relevant period that has been
capitalized on the balance sheet of such Person.



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each calendar month, (b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and (c) with respect to any Loan, the
Maturity Date or any other date on which all of the Loans have been paid in full.



14









 





     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1, 2 or 3 months
thereafter, as the Borrowers may elect; provided, however, that (i) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless 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 (ii) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.



     “International” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “Inventory” shall mean all “inventory”, as such term is defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, and in any event including inventory,
merchandise, goods and other personal property that are held by or on behalf of any Credit Party
for sale or lease or are furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods, or materials or supplies
of any kind, nature or description used or consumed or to be used or consumed in such Credit
Party’s business or in the processing, production, packaging, promotion, delivery or shipping of
the same, including all supplies and embedded software.



     “Investment Property” shall mean all “investment property” as such term is defined in the Code
now owned or hereafter acquired by any Credit Party, wherever located, including (i) all
securities, whether certificated or uncertificated, including stocks, bonds, interests in limited
liability companies, partnership interests, treasuries, certificates of deposit, and mutual fund
shares; (ii) all securities entitlements of any Credit Party, including the rights of any Credit
Party to any securities account and the financial assets held by a securities intermediary in such
securities account and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party; (iv) all commodity
contracts of any Credit Party; and (v) all commodity accounts held by any Credit Party.



     “IRC” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “IRS” shall mean the Internal Revenue Service.



     “Italian Subsidiary” shall mean each Subsidiary of any Borrower organized under the laws of
Italy.



     “Lenders” shall mean (a) the “Lenders” under (and as defined in) the Original Second Lien
Credit Agreement immediately prior to the Effective Time, and (b) any Person that has



15









 







become a party hereto pursuant to an Assignment and Acceptance (other than any Person that has
ceased to be a party hereto pursuant to an Assignment and
Acceptance); provided, that so long and
to the extent it holds Loans hereunder (but which are held solely in its capacity as the Funding
Agent and not in any lending capacity), the Funding Agent shall be entitled to all the benefits of
this Agreement is if it were a Lender, and shall be deemed a Lender solely to the extent necessary
to realize such benefits.



     “Leverage Ratio” shall mean, with respect to Holdings and its Subsidiaries, on a consolidated
basis, the ratio of (a) Funded Debt (less all cash and cash equivalents on hand) (including the
average daily closing balance of the Revolving Loan for the 30 days preceding and including any
date of determination) as of any date of determination, less Subordinated Debt to (b) EBITDA for
the twelve months ending on that date of determination.



     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate per annum equal to the higher of (i) 600 basis points or (ii) the rate determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business
Days prior to the commencement of such Interest Period by reference to the British Bankers’
Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected
by the Administrative Agent that has been nominated by the British Bankers’ Association as an
authorized information vendor for the purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per annum at which
deposits in dollars are offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at approximately 11:00 a.m., London
time, on the date that is two Business Days prior to the beginning of such Interest Period.



     “License” shall mean any Copyright License, Patent License, Trademark License or other license
of rights or interests now held or hereafter acquired by any Credit Party.



     “Lien” shall mean any mortgage or deed of trust, pledge, hypothecation, deposit arrangement,
lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever (including any
lease or title retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any financing statement
perfecting a security interest under the Code or comparable law of any jurisdiction).



     “Litigation” shall have the meaning assigned to such term in Section 3.13.



     “Loan Documents” shall mean this Agreement, the Collateral Documents, the promissory notes, if
any, executed and delivered pursuant to Section 2.04(e) and all other agreements, instruments,
documents and certificates executed and delivered to, or in favor of, the Administrative Agent, the
Collateral Agent or any Lender and including all other written matter whether heretofore, now or
hereafter executed by or on behalf of the Credit Parties, or any authorized employee of the Credit
Parties, and delivered to the Administrative Agent, the



16









 







Collateral Agent or any Lender in connection with this Agreement or the transactions contemplated
thereby.



     “Loans” shall mean the term loans made by the Lenders to the Borrowers pursuant to Section
2.01.



     “Margin Stock” shall have the meaning assigned to such term in Section 3.10.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets,
operations, prospects or financial or other condition of the Credit Parties considered as a whole,
(b) any Borrower’s ability to pay any of the Loans or any of the other Obligations in accordance
with the terms of this Agreement, (c) the Collateral or the Collateral Agent’s Liens, on behalf of
itself and the Lenders, on the Collateral or the priority of such Liens, or (d) the Administrative
Agent’s or any Lender’s rights and remedies under this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, any event or occurrence adverse to one or more
Credit Parties which results or could reasonably be expected to result in losses, costs, damages,
liabilities or expenditures in excess of $10,000,000 shall constitute a Material Adverse Effect.



     “Maturity Date” shall mean November 30, 2012.



     “Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.



     “Multiemployer Plan” shall mean a “multiemployer plan” as defined in Sections 3(37) or
4001(a)(3) of ERISA, and to which any Credit Party or ERISA Affiliate has or has had any obligation
or liability, contingent or otherwise, is making, is obligated to make or has made or been
obligated to make, contributions on behalf of participants who are or were employed by any of them.



     “Obligations” shall mean all loans, advances, debts, liabilities and obligations for the
performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such
performance is then required or contingent, or such amounts are liquidated or determinable) owing
by any Credit Party to the Administrative Agent or any Lender, and all covenants and duties
regarding such amounts, of any kind or nature, present or future, whether or not evidenced by any
note, agreement, letter of credit agreement or other instrument, arising under this Agreement or
any of the other Loan Documents. This term includes all principal, interest (including all
interest that accrues after the commencement of any case or proceeding by or against any Credit
Party in bankruptcy, whether or not allowed in such case or proceeding), fees, hedging obligations
under swaps, caps and collar arrangements provided by any Lender, expenses, attorneys’ fees and any
other sum chargeable to any Credit Party under this Agreement or any of the other Loan Documents.



     “Original Closing Date” shall mean July 29, 2004.



     “Original Second Lien Credit Agreement” shall mean that certain Second Lien Credit Agreement,
dated as of July 29, 2004, by and among Credit Suisse First Boston, as administrative agent, the
Borrowers and the other Persons signatory thereto, as amended,



17









 







restated, supplemented or otherwise modified from time to time, until the day prior to the A&R
Effective Date.



     “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document, other than any Excluded Taxes.



     “Patent License” shall mean rights under any written agreement now owned or hereafter acquired
by any Credit Party granting any right with respect to any invention that is claimed in an existing
Patent.



     “Patents” shall mean all of the following in which any Credit Party now holds or hereafter
acquires any interest: (a) all letters patent of the United States or of any other country, all
registrations and recordings thereof, and all applications for letters patent of the United States
or of any other country, including registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United States or any other
country, and (b) all reissues, continuations, continuations in part or extensions thereof.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.



     “Permitted Encumbrances” shall mean the following encumbrances: (a) Liens for taxes or
assessments or other governmental Charges not yet due and payable or which are being contested in
accordance with Section 5.02(b); (b) pledges or deposits of money securing statutory obligations
under workmen’s compensation, unemployment insurance, social security or public liability laws or
similar legislation (excluding Liens under ERISA); (c) pledges or deposits of money securing bids,
tenders, contracts (other than contracts for the payment of money) or leases to which any Credit
Party or Foreign Subsidiary is a party as lessee made in the ordinary course of business; (d)
inchoate and unperfected workers’, mechanics’ or similar liens arising in the ordinary course of
business, so long as such Liens attach only to Equipment, Fixtures and/or Real Estate; (e)
carriers’, warehousemen’s, suppliers’ or other similar possessory liens arising in the ordinary
course of business; (f) deposits securing, or in lieu of, surety, appeal or customs bonds in
proceedings to which any Credit Party or Foreign Subsidiary is a party; (g) any attachment or
judgment lien not constituting an Event of Default under Section 7.01(j); (h) zoning restrictions,
easements, licenses, or other restrictions on the use of any Real Estate or other minor
irregularities in title (including leasehold title) thereto, so long as the same do not materially
impair the use, value, or marketability of such Real Estate; (i) presently existing or hereafter
created Liens in favor of the Collateral Agent, on behalf of the Lenders; (j) Liens expressly
permitted under clauses (b) and (c) of Section 6.07 of this Agreement; (k) customary Liens and
set-off rights in favor of banks maintaining accounts for the Credit Parties or other Foreign
Subsidiaries; (l) the First Priority Liens; and (m) other customary Liens imposed in the
jurisdiction of a Foreign Subsidiary provided such Lien is not reasonably expected to have a
material adverse effect on such Foreign Subsidiary.



     “Person” shall mean any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability company, institution,



18









 







public benefit corporation, other entity or government (whether federal, state, county, city,
municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or
department thereof).



     “Plan” shall mean, at any time, an “employee benefit plan”, as defined in Section 3(3) of
ERISA, that any Credit Party or ERISA Affiliate has or has had any obligation or liability,
contingent or otherwise, maintains, contributes to or has an obligation to contribute to or has
maintained, contributed to or had an obligation to contribute to at any time within the past 7
years on behalf of participants who are or were employed by any Credit Party or ERISA Affiliate.



     “Plan of Reorganization” shall mean, that certain First Amended and Restated Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code dated January 17, 2003, filed in the Chapter
11 Cases including the First Amended and Restated Disclosure Statement filed in conjunction
therewith.



     “Pledge Agreement” shall mean the Second Lien Pledge Agreement, substantially in the form of
Exhibit C, among the Credit Parties and the Collateral Agent for the benefit of the Secured
Parties.



     “Prime Rate” shall mean the rate of interest per annum determined from time to time by the
Administrative Agent as its prime rate in effect at its principal office in Birmingham, Alabama;
each change in the Prime Rate shall be effective from and including the date such change is
announced as being effective.



     “Qualified Plan” shall mean a Plan that is intended to be tax-qualified under Section 401(a)
of the IRC.



     “Real Estate” shall have the meaning assigned to such term in Section 3.06.



     “Register” shall have the meaning assigned to such term in Section 9.04(d).



     “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents, trustees and advisors of such Person and
such Person’s Affiliates.



     “Release” shall mean any release, spill, emission, leaking, pumping, pouring, emitting,
emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or



19









 







migration of Hazardous Material in the environment, including the movement of Hazardous Material
through or in the air, soil, surface water, ground water or property.



     “Required Lenders” shall mean, at any time, the Lenders having Commitments or Loans
representing more than 50% of the sum of all Commitments or Loans outstanding at such time.



     “Restricted Payment” shall mean, with respect to any Credit Party (a) the declaration or
payment of any dividend or the incurrence of any liability to make any other payment or
distribution of cash or other property or assets in respect of Stock; (b) any payment on account of
the purchase, redemption, defeasance, sinking fund or other retirement of such Credit Party’s Stock
or any other payment or distribution made in respect thereof, either directly or indirectly; (c)
any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on
or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to, any Subordinated Debt; (d) any payment made
to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire Stock of such Credit Party now or hereafter outstanding; (e) any
payment of a claim for the rescission of the purchase or sale of, or for material damages arising
from the purchase or sale of, any shares of such Credit Party’s Stock or of a claim for
reimbursement, indemnification or contribution arising out of or related to any such claim for
damages or rescission; (f) any payment, loan, contribution, or other transfer of funds or other
property to any Stockholder of such Credit Party other than payment of compensation in the ordinary
course of business to Stockholders who are employees of such Person; and (g) any payment of
management fees (or other fees of a similar nature) by such Credit Party to any Stockholder of such
Credit Party or its Affiliates.



     “Retiree Welfare Plan” shall mean, at any time, a Plan that is a welfare plan (within the
meaning of Section 3(1) of ERISA) and that provides for continuing coverage or benefits for any
participant or any beneficiary of a participant after the last day of the calendar month following
such participant’s termination of employment, other than continuation coverage provided pursuant to
Section 4980B of the IRC or other similar state law and at the sole expense of the participant or
the beneficiary of the participant.



     “Revolving Loan” shall have the meaning assigned to such term in the First Lien Credit
Agreement.



     “Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral
Agent, (d) each other person to whom any of the Obligations is owed and (e) the successors and
assigns of each of the foregoing.



     “Security Agreement” shall mean the Second Lien Security Agreement, substantially in the form
of Exhibit D, among the Credit Parties and the Collateral Agent for the benefit of the
Secured Parties.



     “Solvent” shall mean, with respect to any Person on a particular date, that on such date (a)
the fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person; (b) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the probable liability of
such



20









 







Person on its debts as they become absolute and matured; (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as
such debts and liabilities mature; and (d) such Person is not engaged in a business or transaction,
and is not about to engage in a business or transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities (such as litigation,
guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at the time, represents the amount that can be
reasonably be expected to become an actual or matured liability.



     “South African Subsidiary” means each Subsidiary of any Borrower organized under the laws of
South Africa.



     “SPC” shall have the meaning assigned to such term in Section 9.04(i).



     “S&P” shall mean Standard & Poor’s Ratings Service or any successor thereto.



     “Statutory Reserves” shall mean, for any Interest Period, a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the number one minus the
aggregate (but without duplication) of the maximum reserve percentages (including any basic,
marginal, special, emergency or supplemental reserves) in effect on the second full Business Day
next preceding the first day of such Interest Period, expressed as a decimal, established by the
Board and any other banking authority or Governmental Authority, domestic or foreign, to which the
Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making
or holding a Loan) is subject for Eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities as defined in Regulation D of the Board) and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any reserve percentage.



     “Stock” shall mean all shares, options, warrants, general or limited partnership interests,
membership interests or other equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other “equity security” (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934).



     “Stockholder” shall mean, with respect to any Person, each holder of Stock of such Person.



     “Stoody” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Subordinated Debt” means any Indebtedness of any Credit Party subordinated to the Obligations
in a manner and form satisfactory to the Administrative Agent and the Lenders in their sole
discretion, as to right and time of payment and as to any other rights and remedies thereunder.



21









 





     “Subsidiary” shall mean, with respect to any Person, (a) any corporation of which an aggregate
of more than 50% of the outstanding Stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether, at the time, Stock of any other
class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially
by such Person or one or more Subsidiaries of such Person, or with respect to which any such Person
has the right to vote or designate the vote of 50% or more of such Stock whether by proxy,
agreement, operation of law or otherwise, and (b) any partnership or limited liability company in
which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in
the form of voting or participation in profits or capital contribution) of more than 50% or of
which any such Person is a general partner or may exercise the powers of a general partner. Unless
the context otherwise requires, each reference to a Subsidiary shall be a reference to a Subsidiary
of a Borrower.



     “Taxes” shall mean taxes, levies, imposts, deductions, charges or withholdings imposed by any
Governmental Authority, and all liabilities with respect thereto, excluding franchise taxes and
taxes imposed on or measured by the net income or overall gross receipts of the Administrative
Agent or any Lender or similar taxes imposed on the Administrative Agent or any Lender by the
jurisdictions under the laws of which the Administrative Agent or such Lender, as applicable, is
organized, conducts business or has a present or former connection or any political subdivision
thereof.



     “Title IV Plan” shall mean a Plan (other than a Multiemployer Plan), that is subject to Title
IV of ERISA or Section 412 of the IRC.



     “Thermadyne Cylinder Co.” means Thermadyne Cylinder Co., a California corporation.



     “Trademark License” shall mean rights under any written agreement now owned or hereafter
acquired by any Credit Party granting any right to use any Trademark.



     “Trademarks” shall mean all of the following now owned or hereafter existing or adopted or
acquired by any Credit Party: (a) all trademarks, trade names, corporate names, business names,
trade styles, trade dress, service marks, logos, and other source or business identifiers (whether
registered or unregistered), all registrations and recordings thereof, and all applications in
connection therewith, including registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any state or
territory thereof, or any other country or any political subdivision thereof; (b) all reissues,
extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the
foregoing.



     “Transactions” shall mean, collectively, (a) the execution, delivery and performance by the
Credit Parties of the Loan Documents to which they are a party and, in the case of the Borrowers,
the making of the Borrowings hereunder and the use of the proceeds thereof as required hereby, and
(b) the payment of related fees and expenses.



     “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is



22









 







determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the
Alternate Base Rate.



     “Unfunded Pension Liability” shall mean, at any time, the aggregate amount, if any, of the sum
of (a) the amount by which the present value of all accrued benefits under each Title IV Plan
exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, all determined as of the most recent valuation date for each
such Title IV Plan using the actuarial assumptions for funding purposes in effect under such Title
IV Plan, and (b) for a period of five (5) years following a transaction which might reasonably be
expected to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that
could be avoided by any Credit Party or any ERISA Affiliate as a result of such transaction.



     “USA Patriot Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).



     “Victor” shall have the meaning assigned to such term in the preamble to this Agreement.



     “Victor Mexico” shall have the meaning assigned to such term in Section 5.08.



     SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”; and the
words “asset” and “property” shall be construed as having the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require, and all references to this Agreement or any other Loan
Document shall include all exhibits, schedules and appendices hereto or thereto, as applicable.
Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that if the Borrowers
notify the Administrative Agent that the Borrowers wish to amend any covenant in Article VI or any
related definition to eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent notifies the Borrowers
that the Required Lenders wish to amend Article VI or any related definition for such purpose),
then the Borrowers’ compliance with such covenant shall be determined on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrowers and the Required
Lenders.



     SECTION 1.03. Senior Indebtedness. As the proceeds of the Loans resulting from this amendment
and restatement of the Original Second Lien Credit Agreement will be used in



23









 







part to refinance the Original Second Lien Credit Agreement, which Original Second Lien Credit
Agreement was utilized solely to refinance a portion of the outstanding Revolving Loan, this
Agreement shall be a “Credit Agreement” (as defined in the Indenture), and the Loans and other
Obligations shall be “Bank Indebtedness” and “Designated Senior Indebtedness” for all purposes of
the Indenture.



     SECTION 1.04. Borrower Representative. The Administrative Agent and each Lender may regard
any notice or other communication pursuant to any Loan Document from Holdings as a notice or
communication from all the Borrowers, and may give any notice or communication required or
permitted to be given to any Borrower or the Borrowers hereunder to Holdings on behalf of such
Borrower or the Borrowers. Each Borrower agrees that each notice, election, representation and
warranty, covenant, agreement and undertaking made on its behalf by Holdings shall be deemed for
all purposes to have been made by such Borrower and shall be binding upon and enforceable against
such Borrower to the same extent as if the same had been made directly by such Borrower.



ARTICLE II




The Credits




     SECTION 2.01. Commitments.



     (a) Subject to the terms and conditions of this Agreement (including the definition of
Commitment) and relying upon the representations and warranties set forth herein, each Lender and
the Administrative Agent agrees, severally and not jointly, that immediately prior to the Effective
Time on the A&R Effective Date each Lender shall be deemed to have assigned and transferred to the
Administrative Agent such Lender’s outstanding “Loans” as defined in the Original Second Lien
Credit Agreement (if any), and at the Effective Time the Administrative Agent, as the sole holder
of the Loans (in such capacity, the “Funding Agent”) shall be deemed to have funded the proceeds of
a Loan to the Borrowers on the A&R Effective Date (subject to Section 2.01(e)) in a principal
amount that is equal to the amount of the Lenders’ outstanding “Loans” (as defined in the Original
Second Lien Credit Agreement) so assigned and transferred, without any actual funding to the
Borrowers on the A&R Effective Date of such amounts; provided, however, that
nothing in this Section 2.01(a) shall make the “Loans” (as defined in the Original Second Lien
Credit Agreement) due and payable on the A&R Effective Date, it being understood and agreed that
the “Loans” (as defined in the Original Second Lien Credit Agreement) shall remain outstanding and
shall become due and payable in accordance with the terms and conditions of this Agreement and the
other Loan Documents.



     (b) Subject to the terms and conditions of this Agreement (including the definition of
Commitment) and relying upon the representations and warranties set forth herein, the Funding
Agent, solely in its capacity as such, agrees to fund an additional term Loan to the Borrowers on
the A&R Effective Date in an amount that, together with the amounts deemed funded pursuant to
Section 2.01(a) above, does not exceed the Commitment. Upon such funding each Loan deemed funded
pursuant to Section 2.01(a) above and each Loan funded pursuant to Section 2.01(b) shall be deemed
a single Loan funded by the Funding Agent in the combined principal amount of $25,000,000.



24









 





     (c) On the A&R Effective Date, immediately after the transactions pursuant to Section 2.01(a)
upon the funding of Loans pursuant to Section 2.01(b), the Commitment shall be permanently reduced
by the amount of Loans deemed funded pursuant to Section 2.01(a) and/or funded pursuant to Section
2.01(b) on the A&R Effective Date.



     (d) On the A&R Effective Date and upon the occurrence of funding of Loans pursuant to Section
2.01(b), the Borrowers shall pay all accrued and unpaid interest, fees, indemnities and payments
due in respect of any Breakage Event (including those occurring on the A&R Effective Date after
giving effect to the transactions contemplated hereby) and all other Obligations then due and
owing, if any, to all, in their capacity as such, under the Original Second Lien Credit Agreement.



     (e) The Borrowers hereby acknowledge and agree that the Loans shall be made by funding a
percentage of the aggregate principal amount thereof to the Borrowers such that the sum of (x) the
principal amount of Loans of deemed funded by the Funding Agent pursuant to Section 2.01(a), plus
(y) the Dollar amount funded pursuant to Section 2.01(b) shall equal 92.346% of the aggregate
principal amount of the Commitment, which funding shall satisfy all obligations to fund Loans
hereunder. For the avoidance of doubt, the amount owing by the Borrowers hereunder and under the
Loan Documents shall equal 100% of the outstanding principal amount of the Loans, which as of the
Effective Time on the A&R Effective Date equals $25,000,000.



     (f) Amounts prepaid on account of the Loans may not be re-borrowed.



     SECTION 2.02. Loans.



     (a) Each Loan shall be made as part of a Borrowing consisting of Loans made ratably in
accordance up to the amount of the Commitment; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender).



     (b) Subject to Section 2.08 and 2.14, each Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrowers may request pursuant to Section 2.03. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrowers to repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time; provided, however, that the Borrowers shall
not be entitled to request any Borrowing that, if made, would result in more than two Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.



     (c) Each Borrowing shall be comprised entirely of Loans as the Borrowers may request pursuant
to Section 2.03.



     (d) Each Lender shall make each Loan to be made by it pursuant to Section 2.01(b) of this
Agreement on the A&R Effective Date by wire transfer of immediately available funds to



25









 







the Funding Agent or the Administrative Agent, as applicable, to the account designated by the
Administrative Agent, and the Administrative Agent shall promptly credit the amounts so received to
the account designated by the Borrowers in the Borrowing Request (or if a Borrowing shall not occur
on the A&R Effective Date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders).



     (e) Unless the Administrative Agent shall have received notice from a Lender prior to the A&R
Effective Date that such Lender will not make available to the Administrative Agent such Lender’s
portion of the Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the A&R Effective Date in accordance with
paragraph (e) of this Section and the Administrative Agent may, in its sole discretion and in
reliance upon such assumption, make available to the Borrowers on the A&R Effective Date a
corresponding amount. If the Administrative Agent shall have so made funds available, then, to the
extent that such Lender shall not have made such portion available to the Administrative Agent, the
Borrowers and such Lender severally agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the date such amount is
made available to the Borrowers to but excluding the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrowers, a rate per annum equal to the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such
Lender, a rate determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount shall constitute
such Lender’s Loan as part of such Borrowing for purposes of this Agreement.



     SECTION 2.03. Borrowing Procedure. In order to request the Borrowing to be made on the A&R
Effective Date, the Borrowers shall have delivered or faxed to the Administrative Agent a duly
completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
Birmingham, Alabama time, three Business Days prior to the A&R Effective Date, and (b) in the case
of an ABR Borrowing, not later than 10:00 a.m., Birmingham, Alabama time, on the A&R Effective
Date. Such Borrowing Request shall be irrevocable, shall be signed by or on behalf of the
Borrowers and shall specify the following information: (i) whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds are to be disbursed;
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding any contrary
specification in the Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such
request, then the requested Borrowing shall be an ABR Borrowing, and if no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the Borrowers shall be
deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall
promptly advise the applicable Lenders of any request made pursuant to this Section (and the
contents thereof), and of each Lender’s portion of the requested Borrowing.



     SECTION 2.04. Evidence of Debt; Repayment of Loans.



26









 





     (a) The Borrowers hereby unconditionally promise, jointly and severally, to pay on the
Maturity Date to the Administrative Agent for the account of each Lender the outstanding principal
amount of each Loan of such Lender.



     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to such Lender resulting from the Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.



     (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become
due and payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from any Borrower or any Guarantor and each Lender’s
share thereof.



     (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligations of the Borrowers
to repay the Loans in accordance with their terms.



     (e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note.
In such event, the Borrowers shall execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns and in a form and substance reasonably acceptable to the
Administrative Agent and the Borrowers. Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive such a promissory note, the interests represented by
such note shall at all times (including after any assignment of all or part of such interests
pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named
therein or its registered assigns.



     SECTION 2.05. Fees. The Borrowers agree, jointly and severally, to pay to the Administrative
Agent, for its own account, the fees set forth in the Engagement Letter at the times and in the
amounts specified therein. Once paid, such fees shall not be refundable under any circumstances.



     SECTION 2.06. Interest on Loans.



     (a) Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366
days, as the case may be, when the Alternate Base Rate is determined by reference to the Prime Rate
and over a year of 360 days at all other times and calculated from and including the date of such
Borrowing to but excluding the date of repayment thereof) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage.



     (b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage.



27









 





     (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted
LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.



     SECTION 2.07. Default Interest. If an Event of Default shall have occurred and be continuing,
at the election of the Administrative Agent or the Required Lenders, to the extent permitted by
law, all amounts outstanding under this Agreement and the other Loan Documents shall bear interest
(after as well as before judgment), payable on demand, at the rate otherwise applicable to the
Loans pursuant to Section 2.06 plus 2.00% per annum.



     SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to
the Borrowers and the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrowers and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrowers for a Eurodollar Borrowing pursuant to Section
2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section shall be conclusive absent manifest error.



     SECTION 2.09. Termination and Reduction of Commitments.



     (a) The Commitments shall automatically terminate upon the earlier to occur of (i) the making
of the Loans on the A&R Effective Date and (ii) 5:00 p.m., New York City time, on September 14,
2009.



     (b) Upon prior irrevocable written or fax notice to the Administrative Agent, the Borrowers
may at any time in whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that each partial reduction of the Commitments shall be in an
integral multiple of $1,000,000 and in a minimum amount of $5,000,000. Each reduction in the
Commitments hereunder shall be made ratably among the Lenders in accordance with their respective
Commitments.



     SECTION 2.10. Conversion and Continuation of Borrowings. The Borrowers shall have the right
at any time upon prior irrevocable notice to the Administrative Agent not later than 1:00 p.m.,
Birmingham, Alabama time, three Business Days prior thereto, (a) to convert any Eurodollar
Borrowing into an ABR Borrowing, (b) to convert any ABR Borrowing into a Eurodollar Borrowing or to
continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period and
(c) to convert the Interest Period with respect to any



28









 







Eurodollar Borrowing to another permissible Interest Period, subject in each case to the following:




     (i) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;




     (ii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations specified
in Section 2.02(a) and (b) regarding the principal amount and maximum number of Borrowings of
the relevant Type;




     (iii) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrowers at the time of conversion;




     (iv) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrowers shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.15;




     (v) no Borrowing may be converted into or continued as a Eurodollar Borrowing less than
one month prior to the Maturity Date;




     (vi) any portion of a Eurodollar Borrowing that cannot be converted into or continued as
a Eurodollar Borrowing by reason of the immediately preceding clause shall be automatically
converted at the end of the Interest Period in effect for such Borrowing into an ABR
Borrowing; and




     (vii) upon notice to the Borrowers from the Administrative Agent (or upon the written
request of the Required Lenders), after the occurrence and during the continuance of a Default
or an Event of Default, no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan.



     Each notice pursuant to this Section shall be irrevocable and shall refer to this Agreement
and specify (i) the identity and amount of the Borrowing that the Borrowers request be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing
or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which
shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified
in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrowers shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to this Section and of
each Lender’s portion of any converted or continued Borrowing. If the Borrowers shall not have
given notice in accordance with this Section to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this Section to convert such
Borrowing), such Borrowing shall, at the end of the



29









 







Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be
continued into an ABR Borrowing.



     SECTION 2.11. Optional Prepayment.



     (a) On or prior to August 30, 2010, no optional prepayments of the Loans shall be permitted;
provided, however, that during the period between April 1, 2010 and August 30, 2010, Borrowers
shall have the right at any time and from time to time to make a single prepayment of any
Borrowing, in whole or in part, up to an amount equal to Fourteen Million Dollars ($14,000,000),
upon at least three Business Days’ prior written or fax notice (or telephone notice promptly
confirmed by written or fax notice) to the Administrative Agent before 10:00 a.m., Birmingham,
Alabama time, in lieu of making prepayments of the High Yield Notes pursuant to Section 6.03(b)(v)
of this Agreement. After August 30, 2010, the Borrowers shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, upon same day written or fax notice (or
telephone notice promptly confirmed by written or fax notice) to the Administrative Agent before
10:00 a.m., Birmingham, Alabama time; provided, however, that each partial prepayment shall be in
an amount that is an integral multiple of $250,000 and not less than $1,000,000.



     (b) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrowers to prepay such Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section shall be subject to Section 2.15, but otherwise shall be without
premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount
to be prepaid to but excluding the date of payment.



     SECTION 2.12. Mandatory Prepayments.



     (a) Immediately upon receipt by any Credit Party of any cash proceeds of any asset
disposition, the Borrowers shall prepay the Loans in an amount equal to all such proceeds, net of
(A) commissions and other reasonable and customary transaction costs, fees and expenses properly
attributable to such transaction and payable by the Borrowers in connection therewith (in each
case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens
on such asset (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and
(D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith.
Notwithstanding the foregoing, if the Credit Parties notify the Administrative Agent in writing of
their intent to reinvest such proceeds in replacement fixed assets, the Credit Parties shall only
be obligated to make prepayments to the extent that such proceeds are not so reinvested. The
following shall not be subject to mandatory prepayment under this paragraph: (1) proceeds of sales
of Inventory in the ordinary course of business and (2) the proceeds of any asset disposition or
series of asset dispositions otherwise permitted under Section 6.08 not in excess of $500,000.



     (b) If Holdings or any Borrower issues Stock or any debt security in a public offering or in a
private placement underwritten, placed or initially purchased by an investment bank, no later than
the Business Day following the date of receipt of the proceeds thereof, all Borrowers (in the case
of an issuance by Holdings) or the issuing Borrower shall prepay the Loans in an



30









 







amount equal to all such proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses (including legal fees) paid to non-Affiliates in connection
therewith; provided, that no such prepayment shall be required with respect to an amount equal to
such proceeds that (A) are received pursuant to any employee or stock option plan, (B) are received
in connection with any refinancing of Indebtedness or (C) are required to prepay loans and other
extensions of credit under the First Lien Facilities.



     (c) The Borrowers shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section, (i) a certificate signed by a Financial Officer of such Borrower
setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the
extent practicable, at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date and the principal amount of each Loan (or portion
thereof) to be prepaid. All prepayments of Borrowings under this Section shall be subject to
Section 2.15, but otherwise shall be without premium or penalty, and shall be accompanied by
accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of
payment.



     (d) On or prior to August 30, 2010, any Lender may elect, by notice to the Administrative
Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any
prepayment of Loans required to be made pursuant to this Section, to decline all (but not a
portion) of its pro rata share of such prepayment (such declined amounts, the “Declined Proceeds”).
Any Declined Proceeds shall be offered to the Lenders not so declining such prepayment (with such
Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the
manner specified by the Administrative Agent). Thereafter, the remaining Declined Proceeds may be
retained by the Borrowers.



     SECTION 2.13. Reserve Requirements; Change in Circumstances.



     (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall impose,
modify or deem applicable any reserve, special deposit or similar requirement against assets of,
deposits with or for the account of or credit extended by any Lender (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the
London interbank market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise) by an amount deemed by such
Lender to be material, then the Borrowers shall pay to such Lender upon demand such additional
amount or amounts as will compensate such Lender for such additional costs incurred or reduction
suffered.



     (b) If any Lender shall have determined that any Change in Law regarding capital adequacy has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital
of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by
such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with



31









 







respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to
time the Borrowers shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.



     (c) A certificate of a Lender setting forth a reasonably detailed calculation of the amount or
amounts necessary to compensate such Lender or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrowers and shall be conclusive
absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.



     (d) Failure or delay on the part of any Lender to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrowers
shall be under no obligation to compensate any Lender under paragraph (a) or (b) of this Section
with respect to increased costs or reductions with respect to any period prior to the date that is
120 days prior to such request if such Lender knew or could reasonably have been expected to know
of the circumstances giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to any increased
costs or reductions arising out of the retroactive application of any Change in Law within such
120-day period. The protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of the Change in Law that shall have
occurred or been imposed.



     SECTION 2.14. Change in Legality.



     (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to
the Borrowers and to the Administrative Agent:




     (i) such Lender may declare that Eurodollar Loans will not thereafter (for the duration
of such unlawfulness) be made by such Lender hereunder (or be continued for additional
Interest Periods and ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an additional
Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a
request to continue an ABR Loan as such for an additional Interest Period or to convert a
Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and




     (ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b) of
this Section.



32









 




In the event any Lender shall exercise its rights under clause (i) or (ii) above , all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.




     (b) For purposes of this Section, a notice to the Borrowers by any Lender shall be effective
as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period
then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the
date of receipt by the Borrowers.



     SECTION 2.15. Indemnity. Each Borrower shall, jointly and severally, indemnify each Lender
against (a) any loss, expense or liability that such Lender may sustain or incur as a consequence
of any event, other than a default by such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any amount on account of the
principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii)
the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with
respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in
effect therefor, or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after
notice of such Loan shall have been given by any Borrower hereunder (any of the foregoing events
referred to in this clause (a) being called a “Breakage Event”) or (b) any expense that such Lender
may sustain or incur as a consequence of any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds
for the Eurodollar Loan that is the subject of such Breakage Event for the period from the date of
such Breakage Event to the last day of the Interest Period in effect (or that would have been in
effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in
redeploying the funds released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrowers and shall be conclusive absent
manifest error.



     SECTION 2.16. Pro Rata Treatment. Each Borrowing shall be allocated pro rata among the Lenders
in accordance with their respective Commitments and each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans and each conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with the respective principal amounts of their outstanding Loans. Each
Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to
the next higher or lower whole dollar amount.



     SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of
a right of banker’s lien, setoff or counterclaim against any Borrower or any other Credit Party, or
pursuant to a secured claim under Section 506 of Title 11 of the United States Bankruptcy Code or
other security or interest arising from, or in lieu of, such secured claim,



33









 







received by such Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan
as a result of which the unpaid principal portion of its Loan shall be proportionately less than
the unpaid principal portion of the Loan of any other Lender, it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to such other Lender
the purchase price for, a participation in the Loan of such other Lender, so that the aggregate
unpaid principal amount of the Loan and participations in Loans held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans then outstanding as the
principal amount of its Loan prior to such exercise of banker’s lien, setoff or counterclaim or
other event was to the principal amount of all Loans outstanding prior to such exercise of banker’s
lien, setoff or counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment giving rise thereto
shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored without interest.
Each Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan deemed to have been so purchased may exercise any and all rights of
banker’s lien, setoff or counterclaim with respect to any and all moneys owing by such Borrower to
such Lender by reason thereof as fully as if such Lender had made a Loan directly to such Borrower
in the amount of such participation.



     SECTION 2.18. Payments.



     (a) The Borrowers shall make each payment (including principal of or interest on any Borrowing
or any fees or other amounts) hereunder and under any other Loan Document not later than 12:00
noon, Birmingham, Alabama time, on the date when due in immediately available Dollars, without
setoff, defense or counterclaim. Each such payment shall be made to the Administrative Agent at its
principal office or such other office as the Administrative Agent may designate in writing.



     (b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, if applicable.



     (c) If the Administrative Agent pays any amount to a Lender under this Agreement in the belief
or expectation that a related payment has been or will be received by the Administrative Agent from
the Borrowers and such related payment is not received by the Administrative Agent, then the
Administrative Agent shall be entitled to recover such amount from such Lender on demand without
setoff, counterclaim or deduction of any kind.



     (d) If the Administrative Agent determines at any time that any amount received by the
Administrative Agent under this Agreement must be returned to a Borrower or paid to any other
Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other Loan Document, the Administrative Agent will not be
required to distribute any portion thereof to any Lender. In addition, each Lender will repay



34









 







to the Administrative Agent on demand any portion of such amount that the Administrative Agent has
distributed to such Lender, together with interest at such rate, if any, as the Administrative
Agent is required to pay to such Borrower or such other Person, without setoff, counterclaim or
deduction of any kind.



     SECTION 2.19. Taxes.



     (a) Any and all payments by or on account of any obligation of any Borrower or any other
Credit Party hereunder or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if a Borrower or any other Credit
Party shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i)
the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section) the Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower or such Credit Party shall make such deductions
and (iii) such Borrower or such Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



     (b) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (c) The Borrowers shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of any Borrower or any other Credit Party hereunder or under any
other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender,
or by the Administrative Agent on behalf of itself or a Lender, shall be conclusive absent manifest
error.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any
Borrower or any other Credit Party to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which a Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to such
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by such Borrower as will permit such payments to be made without withholding or at a
reduced rate.



35









 





     SECTION 2.20. Assignment of Loans Under Certain Circumstances; Duty to Mitigate.



     (a) In the event (i) any Lender delivers a certificate requesting compensation pursuant to
Section 2.13, (ii) any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority on account of any Lender pursuant to Section 2.19 or (iii) any Lender
refuses to consent to any amendment, waiver or other modification of any Loan Document requested by
the Borrowers that requires the consent of a greater percentage of the Lenders than the Required
Lenders and such amendment, waiver or other modification is consented to by the Required Lenders,
the Borrowers may, at their expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender and the Administrative
Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (x) such assignment shall not
conflict with any law, rule or regulation or order of any court or other Governmental Authority
having jurisdiction, (y) the Borrowers shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld or delayed, and (z) the
Borrowers or such assignee shall have paid to the affected Lender in immediately available funds an
amount equal to, at par, the sum of the principal of and interest accrued to the date of such
payment on the outstanding Loans of such Lender, plus all other amounts accrued for the account of
such Lender hereunder (including any amounts under Section 2.13 and 2.15); provided further that,
if prior to any such transfer and assignment the circumstances or event that resulted in such
Lender’s claim for compensation under Section 2.13 or the amounts paid pursuant to Section 2.19, as
the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to result in amounts being
payable under Section 2.19, as the case may be (including as a result of any action taken by such
Lender pursuant to paragraph (b) of this Section), or if such Lender shall waive its right to claim
further compensation under Section 2.13 in respect of such circumstances or event or shall waive
its right to further payments under Section 2.19 in respect of such circumstances or event or shall
consent to the proposed amendment, waiver, consent or other modification, as the case may be, then
such Lender shall not thereafter be required to make any such transfer and assignment hereunder.
Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power
is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any
Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests
hereunder in the circumstances contemplated by this paragraph.



     (b) If (i) any Lender shall request compensation under Section 2.13, (ii) any Borrower is
required to pay any additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.19, then such Lender shall use reasonable efforts (which shall not
require such Lender to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take
any action inconsistent with its internal policies or legal or regulatory restrictions or suffer
any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document
reasonably requested in writing by the Borrowers or (y) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or affiliates, if such
filing or assignment would reduce its claims for compensation under



36









 







Section 2.13 or would reduce amounts payable pursuant to Section 2.19, as the case may be, in the
future. The Borrowers hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such filing or assignment, delegation and transfer.



ARTICLE III




Representations and Warranties




     To induce the Lenders to make the Loans, the Credit Parties executing this Agreement, jointly
and severally, make the following representations and warranties to the Administrative Agent, the
Collateral Agent and each Lender with respect to all Credit Parties, each and all (unless otherwise
specified), as of the A&R Effective Date, of which shall survive the execution and delivery of this
Agreement and the continuing, deemed making and making of the Loans hereunder.



     SECTION 3.01. Corporate Existence; Compliance with Law; FEIN. Each Credit Party (a) is a
corporation, limited liability company or limited partnership duly organized, validly existing and
in good standing under the laws of its respective jurisdiction of incorporation or organization and
each Credit Party’s name as it appears in official filings in its state of incorporation or
organization, organization type, organization number, if any, issued by its state incorporation or
organization, and federal employer identification number are set forth on Schedule 3.01;
(b) is duly qualified to conduct business and is in good standing in each other jurisdiction where
its ownership or lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect; (c) has the requisite power and authority and the legal right to own, pledge,
mortgage or otherwise encumber and operate its properties, to lease the property it operates under
lease and to conduct its business as now conducted or proposed to be conducted; (d) subject to
specific representations regarding Environmental Laws, has all licenses, permits, consents or
approvals from or by, and has made all material filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for such ownership, operation
and conduct, except where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; (e) is in compliance with its charter and bylaws or partnership or operating
agreement, as applicable; and (f) subject to specific representations set forth herein regarding
ERISA, Environmental Laws, tax and other laws, is in compliance with all applicable provisions of
law, except where the failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 3.02. Executive Offices, Collateral Locations. As of the A&R Effective Date, the
current location of each Credit Party’s chief executive office and the warehouses and premises at
which any Collateral with a fair market value in excess of $20,000 is located are set forth on
Schedule 3.02, none of such locations has changed within the one (1) month preceding the
A&R Effective Date and each Credit Party has only one state of incorporation or organization.



     SECTION 3.03. Corporate Power, Authorization, Enforceable Obligations. The execution, delivery
and performance by each Credit Party of the Loan Documents to which it is a party and the creation
of all Liens provided for therein: (a) are within such Person’s



37









 







power; (b) have been duly authorized by all necessary corporate, limited liability company or
limited partnership action, as applicable; (c) do not contravene any provision of such Person’s
charter, bylaws or partnership or operating agreement, as applicable; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e) do not conflict with
or result in the breach or termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Person is a party or by which such Person or any of its
property is bound; (f) do not result in the creation or imposition of any Lien upon any of the
property of such Person, other than those in favor of Administrative Agent, on behalf of itself and
the Lenders, pursuant to the Loan Documents; and (g) do not require the consent or approval of any
Governmental Authority or any other Person. Each of the Loan Documents shall be duly executed and
delivered by each Credit Party that is a party thereto and each such Loan Document shall constitute
a legal, valid and binding obligation of such Credit Party enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).



     SECTION 3.04. Financial Statements. Holdings has heretofore furnished to the Lenders its
consolidated balance sheets and related statements of operations, stockholders’ equity and cash
flows (i) as of and for the fiscal year ended December 31, 2008, audited by and accompanied by the
opinion of KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2009, certified by its chief financial officer. Such
financial statements were prepared in accordance with GAAP (other than, in the case of quarterly
financial statements, the absence of footnotes and subject to the normal year-end adjustments) and
present fairly in all material respects the consolidated financial condition and results of
operations and cash flows of Holdings and its consolidated Subsidiaries as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of the Holdings and its consolidated Subsidiaries as of the dates thereof.



     SECTION 3.05. Material Adverse Effect. Between December 31, 2008 and the A&R Effective Date:
(a) no Credit Party has incurred any obligations, contingent or noncontingent liabilities,
liabilities for Charges, long-term leases or unusual forward or long-term commitments that are not
reflected in the financial statements referred to in Section 3.04 and that, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, (b) no material
contract, lease or other agreement or instrument has been entered into by any Credit Party or has
become binding upon any Credit Party’s assets and to the Borrowers’ knowledge no law or regulation
applicable to any Credit Party has been adopted that has had or could reasonably be expected to
have a Material Adverse Effect, and (c) no Credit Party is in default and to the best of the
Borrowers’ knowledge no third party is in default under any material contract, lease or other
agreement or instrument, that alone or in the aggregate could reasonably be expected to have a
Material Adverse Effect. Since December 31, 2008, no event has occurred, that alone or together
with other events, could reasonably be expected to have a Material Adverse Effect.



38









 





     SECTION 3.06. Ownership of Property; Liens. As of the A&R Effective Date, the real estate
(“Real Estate”) listed on Schedule 3.06) constitutes all of the real property owned,
leased, subleased, or used by any Credit Party. Each Credit Party owns good and marketable fee
simple title to all of its owned Real Estate, and valid and marketable leasehold interests in all
of its leased Real Estate, all as described on Schedule 3.06, and, if requested by
Administrative Agent, copies of all such leases or a summary of terms thereof reasonably
satisfactory to Administrative Agent have been delivered to the Administrative Agent. Schedule
3.06 further describes any Real Estate with respect to which any Credit Party is a lessor,
sublessor or assignor as of the A&R Effective Date. Each Credit Party also has good and marketable
title to, or valid leasehold interests in, all of its personal property and assets. As of the A&R
Effective Date, none of the properties and assets of any Credit Party are subject to any Liens
other than Permitted Encumbrances and Liens in existence on the date hereof and summarized on
Schedule 6.07, and there are no facts, circumstances or conditions known to any Credit
Party that may result in any Liens (including Liens arising under Environmental Laws) other than
Permitted Encumbrances. Each Credit Party has received all deeds, assignments, waivers, consents,
nondisturbance and attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish, protect and perfect
such Credit Party’s right, title and interest in and to all such Real Estate and other properties
and assets. Schedule 3.06 also describes any purchase options, rights of first refusal or
other similar contractual rights pertaining to any Real Estate. As of the A&R Effective Date, no
portion of any Credit Party’s Real Estate has suffered any material damage by fire or other
casualty loss that has not heretofore been repaired and restored in all material respects to its
original condition or otherwise remedied. As of the A&R Effective Date, all material permits
required to have been issued or appropriate to enable the Real Estate to be lawfully occupied and
used for all of the purposes for which it is currently occupied and used have been lawfully issued
and are in full force and effect.



     SECTION 3.07. Labor Matters. Except as set forth on Schedule 3.07, as of the A&R
Effective Date (a) no strikes or other material labor disputes against any Credit Party are pending
or, to any Credit Party’s knowledge, threatened; (b) hours worked by and payment made to employees
of each Credit Party materially comply with the Fair Labor Standards Act and each other federal,
state, local or foreign law applicable to such matters; (c) all payments due from any Credit Party
for employee health and welfare insurance have been paid or accrued as a liability on the books of
such Credit Party; (d) no Credit Party is a party to or bound by any collective bargaining
agreement, management agreement, consulting agreement, employment agreement, bonus, restricted
stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or
arrangement (and, if requested by the Administrative Agent, true and complete copies of any
agreements described on Schedule 3.07 have been delivered to the Administrative Agent); (e)
there is no organizing activity involving any Credit Party pending or, to any Credit Party’s
knowledge, threatened by any labor union or group of employees; (f) there are no representation
proceedings pending or, to any Credit Party’s knowledge, threatened with the National Labor
Relations Board (or any comparable body outside the United States of America), and no labor
organization or group of employees of any Credit Party has made a pending demand for recognition;
and (g) there are no material complaints or charges against any Credit Party pending or, to the
knowledge of any Credit Party, threatened to be filed with any Governmental Authority or arbitrator
based on, arising out of, in connection with, or otherwise relating to the employment or
termination of employment by any Credit Party of any individual.



39









 





     SECTION 3.08. Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness.
Except as set forth on Schedule 3.08, as of the A&R Effective Date, no Credit Party has any
Subsidiaries, is engaged in any joint venture or partnership with any other Person, or is an
Affiliate of any other Person. All of the issued and outstanding Stock of each Credit Party (other
than Holdings) is owned by each of the Stockholders and in the amounts set forth on Schedule
3.08. Except as set forth on Schedule 3.08, there are no outstanding rights to
purchase, options, warrants or similar rights or agreements pursuant to which any Credit Party may
be required to issue, sell, repurchase or redeem any of its Stock or other equity securities or any
Stock or other equity securities of its Subsidiaries. All outstanding Indebtedness and Guaranteed
Indebtedness of each Credit Party as of the A&R Effective Date (except for the Obligations) is
described in Section 6.03 (including Schedule 6.03).



     SECTION 3.09. Government Regulation. No Credit Party is an “investment company” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as
such terms are defined in the Investment Company Act of 1940. No Credit Party is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, or any
other federal or state statute that restricts or limits its ability to incur Indebtedness or to
perform its obligations hereunder. The making of the Loans by Lenders to Borrowers, the application
of the proceeds thereof and repayment thereof and the consummation of the Transactions will not
violate any provision of any such statute or any rule, regulation or order issued by the Securities
and Exchange Commission.



     SECTION 3.10. Margin Regulations. No Credit Party is engaged, nor will it engage, principally
or as one of its important activities, in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” as such terms are defined in Regulation U of the
Federal Reserve Board as now and from time to time hereafter in effect (such securities being
referred to herein as “Margin Stock”). No Credit Party owns any Margin Stock, and none of the
proceeds of the Loans or other extensions of credit under this Agreement will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing
or retiring any Indebtedness that was originally incurred to purchase or carry any Margin Stock or
for any other purpose that might cause any of the Loans or other extensions of credit under this
Agreement to be considered a “purpose credit” within the meaning of Regulations T, U or X of the
Federal Reserve Board. No Credit Party will take or permit to be taken any action that might cause
any Loan Document to violate any regulation of the Federal Reserve Board.



     SECTION 3.11. Taxes. All federal and other material tax returns, reports and statements,
including information returns, required by any Governmental Authority to be filed by any Credit
Party have been filed with the appropriate Governmental Authority, and all Charges have been paid
prior to the date on which any fine, penalty, interest or late charge may be added thereto for
nonpayment thereof (excluding (i) Charges or other amounts being contested in accordance with
Section 5.02(b) and (ii) any Charges discharged in the Chapter 11 Cases or payable over time in
accordance with the Plan of Reorganization), unless the failure to so file or pay would not
reasonably be expected to result in fines, penalties or interest in excess of $100,000 in the
aggregate. Proper and accurate amounts have been withheld by each Credit Party from its respective
employees for all periods in compliance in all material respects with all applicable federal,
state, local and foreign laws and such withholdings have been timely paid to



40









 







the respective Governmental Authorities (except to the extent discharged in the Chapter 11 Cases or
payable over time in accordance with the Plan of Reorganization). Schedule 3.11 sets forth
as of the A&R Effective Date those taxable years for which any Credit Party’s tax returns are
currently being audited by the IRS or any other applicable Governmental Authority, and any
assessments or threatened assessments in connection with such audit, or otherwise currently
outstanding. Except as described on Schedule 3.11, as of the A&R Effective Date, no Credit
Party has executed or filed with the IRS or any other Governmental Authority any agreement or other
document extending, or having the effect of extending, the period for assessment or collection of
any Charges for any open periods. Except as set forth on Schedule 3.11, none of the Credit
Parties and their respective predecessors are liable for any Charges: (a) under any agreement
(including any tax sharing agreements) or (b) to each Credit Party’s knowledge, as a transferee. As
of the A&R Effective Date, no Credit Party has agreed or been requested to make any adjustment
under IRC Section 481(a), by reason of a change in accounting method or otherwise, which would
reasonably be expected to have a Material Adverse Effect.



     SECTION 3.12. ERISA.



     (a) Schedule 3.12 lists, as of the A&R Effective Date, (i) all ERISA Affiliates and
(ii) all Plans, including Title IV Plans, Multiemployer Plans, and all Retiree Welfare Plans.
Copies of all such listed Plans, if requested by the Administrative Agent, together with a copy of
the latest form IRS/DOL 5500-series, as applicable, for each such Plan, have been delivered to the
Administrative Agent. Except with respect to Multiemployer Plans, each Qualified Plan has been
determined by the IRS to qualify under Section 401 of the IRC, the trusts created thereunder have
been determined to be exempt from tax under the provisions of Section 501 of the IRC, and nothing
has occurred that would cause the loss of such qualification or tax exempt status. Each Plan is in
compliance in all respects with the applicable provisions of ERISA, the IRC and its terms,
including the timely filing of all reports required under the IRC or ERISA, except for
non-compliance which would not have a Material Adverse Effect. Neither any Credit Party nor ERISA
Affiliate has failed to make any material contribution or pay any material amount due as required
by either Section 412 of the IRC or Section 302 of ERISA or the terms of any such Plan, except for
non-compliance which would not have a Material Adverse Effect. No “prohibited transaction”, as
defined in Section 406 of ERISA and Section 4975 of the IRC, has occurred with respect to any Plan,
that would subject any Credit Party to a tax on prohibited transactions imposed by Section 502(i)
of ERISA or Section 4975 of the IRC, which would have a Material Adverse Effect.



     (b) Except as set forth on Schedule 3.12 or in Holdings’ financial statements provided
to the Lenders from time to time or as would not have a Material Adverse Effect: (i) no Title IV
Plan has any material Unfunded Pension Liability; (ii) no ERISA Event has occurred or is reasonably
expected to occur; (iii) there are no pending, or to the knowledge of any Credit Party, threatened
material claims (other than claims for benefits in the normal course), sanctions, actions or
lawsuits, asserted or instituted against any Plan or any Credit Party or ERISA Affiliate as
fiduciary or sponsor of any Plan; (iv) no Credit Party or ERISA Affiliate has incurred or
reasonably expects to incur any material liability as a result of a complete or partial withdrawal
from a Multiemployer Plan; (v) within the last five years no Title IV Plan of any Credit Party or
ERISA Affiliate has been terminated, whether or not in a “standard termination” as that term is
used in Section 4041 of ERISA, nor has any Title IV Plan of any Credit Party or any ERISA



41









 







Affiliate (determined at any time within the last five years) with material Unfunded Pension
Liabilities been transferred outside of the “controlled group” (within the meaning of Section
4001(a)(14) of ERISA) of any Credit Party or ERISA Affiliate (determined at such time); and (iv) no
Credit Party or ERISA Affiliate has any material liability with respect to post-retirement benefit
obligations within the meaning of the FASB 106.



     SECTION 3.13. Litigation. No action, claim, lawsuit, demand, investigation or proceeding is
now pending or, to the knowledge of any Credit Party, threatened against any Credit Party, before
any Governmental Authority or before any arbitrator or panel of arbitrators (collectively,
“Litigation”), (a) that challenges any Credit Party’s right or power to enter into or perform any
of its obligations under the Loan Documents to which it is a party, or the validity or
enforceability of any Loan Document or any action taken thereunder, or (b) that has a reasonable
risk of being determined adversely to any Credit Party and that, if so determined, could reasonably
be expected to have a Material Adverse Effect. Except as set forth on Schedule 3.13, as of
the A&R Effective Date there is no Litigation pending or, to any Credit Party’s knowledge,
threatened, that seeks damages in excess of $250,000 or injunctive relief against, or alleges
criminal misconduct of, any Credit Party.



     SECTION 3.14. Brokers. Except as set forth on Schedule 3.14, no broker or finder
brought about the obtaining, making or closing of the Loans or the Transactions, and no Credit
Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage
fees in connection therewith.



     SECTION 3.15. Intellectual Property. As of the A&R Effective Date Date, each Credit Party owns
or has rights to use all Intellectual Property necessary to continue to conduct its business as now
conducted by it or presently proposed to be conducted by it. Each Patent, Trademark, and registered
Copyright existing as of the A&R Effective Date and each material License in effect as of the A&R
Effective Date is listed, together with application or registration numbers, as applicable, on
Schedule 3.15. To its knowledge, each Credit Party conducts its business and affairs
without infringement of or interference with any Intellectual Property of any other Person in any
material respect. Except as set forth on Schedule 3.15, no Credit Party is aware of any
material infringement claim by any other Person with respect to any Intellectual Property.



     SECTION 3.16. Full Disclosure. No information contained in this Agreement, any of the other
Loan Documents, the financial statements or other written reports from time to time prepared by any
Credit Party and delivered hereunder or any written statement prepared by any Credit Party and
furnished by or on behalf of any Credit Party to the Administrative Agent or any Lender pursuant to
the terms of this Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements contained herein or
therein, taken as a whole, not misleading in light of the circumstances under which they were made.



     SECTION 3.17. Environmental Matters.



     (a) Except as set forth on Schedule 3.17, as of the A&R Effective Date: (i) the Real
Estate is free of contamination from any Hazardous Material except for such contamination that



42









 







would not adversely impact the value or marketability of such Real Estate and that would not result
in Environmental Liabilities that could reasonably be expected to exceed $100,000; (ii) no Credit
Party has caused or suffered to occur any material Release of Hazardous Materials on, at, in,
under, above, to, from or about any of its Real Estate; (iii) the Credit Parties are and have been
in compliance with all Environmental Laws, except for such noncompliance that would not result in
Environmental Liabilities which could reasonably be expected to exceed $100,000; (iv) the Credit
Parties have obtained, and are in compliance with, all Environmental Permits required by
Environmental Laws for the operations of their respective businesses as presently conducted or as
proposed to be conducted, except where the failure to so obtain or comply with such Environmental
Permits would not result in Environmental Liabilities that could reasonably be expected to exceed
$100,000, and all such Environmental Permits are valid, uncontested and in good standing; (v) no
Credit Party is involved in operations or knows of any facts, circumstances or conditions,
including any Releases of Hazardous Materials, that are likely to result in any Environmental
Liabilities of such Credit Party which could reasonably be expected to exceed $100,000; (vi) there
is no Litigation arising under or related to any Environmental Laws, Environmental Permits or
Hazardous Material that seeks damages, penalties, fines, costs or expenses in excess of $100,000 or
injunctive relief against, or that alleges criminal misconduct by, any Credit Party; (vii) no
notice has been received by any Credit Party identifying it as a “potentially responsible party” or
requesting information under CERCLA or analogous state statutes, and to the knowledge of the Credit
Parties, there are no facts, circumstances or conditions that may result in any Credit Party being
identified as a “potentially responsible party” under CERCLA or analogous state statutes; and
(viii) the Credit Parties have made available to the Administrative Agent copies of all existing
material environmental reports, reviews and audits and all written information pertaining to actual
or potentially material Environmental Liabilities, in each case relating to any Credit Party.



     (b) Each Credit Party hereby acknowledges and agrees that the Administrative Agent (i) is not
now, and has not ever been, in control of any of the Real Estate or any Credit Party’s affairs, and
(ii) does not have the capacity through the provisions of the Loan Documents or otherwise to
influence any Credit Party’s conduct with respect to the ownership, operation or management of any
of its Real Estate or compliance with Environmental Laws or Environmental Permits.



     SECTION 3.18. Insurance. Schedule 3.18 lists all insurance policies of any nature
maintained, as of the A&R Effective Date, for current occurrences by each Credit Party, as well as
a summary of the terms of each such policy.



     SECTION 3.19. Deposit and Disbursement Accounts. Schedule 3.19 lists all banks and
other financial institutions at which any Credit Party maintains deposit or other accounts as of
the A&R Effective Date, including any disbursement accounts, and such Schedule correctly identifies
the name, address and telephone number of each depository, the name in which the account is held, a
description of the purpose of the account, and the complete account number therefor.



     SECTION 3.20. Government Contracts. Except as set forth on Schedule 3.20, as of the
A&R Effective Date, no Credit Party is a party to any contract or agreement with any




43











 




Governmental Authority and no Credit Party’s Accounts are subject to the Federal Assignment of
Claims Act (31 U.S.C. Section 3727) or any similar state or local law.




     SECTION 3.21. Customer and Trade Relations. As of the A&R Effective Date, there exists no
actual or, to the knowledge of any Credit Party, threatened termination or cancellation of, or any
material adverse modification or change in: the business relationship of any Credit Party with any
customer or group of customers whose purchases during the preceding 12 months caused them to be
ranked among the ten largest customers of such Credit Party; or the business relationship of any
Credit Party with any supplier essential to its operations.



     SECTION
3.22. Bonding; Licenses. Except as set forth on Schedule 3.22, as of the A&R
Effective Date, no Credit Party is a party to or bound by any surety bond agreement or binding
requirement with respect to products or services sold by it or any trademark or patent license
agreement with respect to products sold by it.



     SECTION 3.23. Solvency. Before and after giving effect to (a) the Loans to be made or
incurred on the A&R Effective Date, (b) the disbursement of the proceeds of such Loans pursuant to
the instructions of the Borrowers; (c) the consummation of the Transactions; and (d) the payment
and accrual of all transaction costs in connection with the foregoing, each Credit Party is and
will be Solvent.



     SECTION 3.24. Status of Holdings and Thermadyne Cylinder Co.. Holdings has not engaged in any
trade or business other than holding the Stock of the other Credit Parties and activities
incidental thereto. Since the Original Closing Date, Thermadyne Cylinder Co. has not engaged in any
trade or business other than as permitted by Section 6.20 hereof; the fair market value of all the
assets of Thermadyne Cylinder Co. does not exceed $100,000.



     SECTION 3.25. Collateral Documents. The Security Agreement, the Pledge Agreement and the
other Collateral Documents, since execution and delivery thereof by the parties thereto on the date
of the Original Closing Date created, and as of the A&R Effective Date will continue to create, in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral and the proceeds thereof, and when financing
statements in appropriate form are filed in the jurisdictions
specified on Schedule 3.02(a), the
Lien created under the Collateral Documents will constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Credit Parties in such Collateral, in each case
prior and superior in right to any other Person, other than with respect to Liens expressly
permitted by Section 6.07 (including, pursuant to the terms of the Intercreditor Agreement, and to
the extent set forth therein, the First Priority Liens) (or with respect to Collateral constituting
Stock, such Liens consisting only of First Priority Liens);
provided, however, that solely with
respect to the Australian Collateral the Borrowers do not make representations and warranties under
this Section 3.25 as to issues arising under the laws of
Australia; and provided, further, that
solely with respect to Intellectual Property registered with Governmental Authorities other than
those of the United States or any State thereof, the Borrowers do not make representations and
warranties under this Section 3.25 as to issues arising under the laws of any jurisdiction other
than the United States or any State thereof.



44









 





ARTICLE IV




Conditions of Lending




     The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the
following conditions, in each case in form and substance satisfactory to the Administrative Agent
and the Required Lenders:



     (a) The Administrative Agent shall have received a Borrowing Request as required by Section
2.03.



     (b) The representations and warranties set forth in Article III and in each other Loan
Document shall be true and correct in all material respects on and as of the A&R Effective Date,
except to the extent such representations and warranties expressly relate to a different date.



     (c) The Borrowers and each other Credit Party shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to be observed or
performed, and at the time of and immediately after such Borrowing, no Default or Event of Default
hereunder, under the Original Second Lien Credit Agreement and/or any other Loan Document shall
have occurred and be continuing.



     (d) The Administrative Agent and the Collateral Agent shall have received, on behalf of
themselves and the Lenders, a favorable written opinion of Armstrong Teasdale LLP, counsel for the
Borrowers, substantially to the effect set forth in
Exhibit E, which opinion shall (i) be dated the
A&R Effective Date, (ii) be addressed to the Lenders, the Administrative Agent and the Collateral
Agent, and (iii) cover such other matters relating to the Loan Documents and the Transactions as
the Administrative Agent shall reasonably request. The Borrowers hereby instruct such counsel to
deliver such opinions.



     (e) All legal matters incident to this Agreement, the Borrowings and extensions of credit
hereunder and the other Loan Documents, and the existence of Liens on the Collateral for the
benefit of the Secured Parties shall be satisfactory to the Lenders and the Administrative Agent.



     (f) The Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Credit Party, certified as of a recent
date by the Secretary of State of the State of its organization, and a certificate as to the good
standing of each Credit Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Credit Party dated the A&R Effective Date and
certifying (A) that attached thereto is a true and complete copy of the by-laws of such Credit
Party as in effect on the A&R Effective Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Credit Party authorizing the execution,
delivery and performance of the Loan Documents to which such Person is a party and, in the case of
the Borrowers, the Borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the certificate or articles of
incorporation of such Credit Party have not been amended since the date of the last



45









 







amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such Credit Party; (iii) a
certificate of another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other
documents as the Lenders or the Administrative Agent may reasonably request.



     (g) The Administrative Agent shall have received a certificate, dated the A&R Effective Date
and signed by a Financial Officer of the Borrowers confirming compliance with the conditions
precedent set forth in paragraphs (b), (c), (l), (m) and (p) of this Article.



     (h) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the A&R Effective Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder or under
any other Loan Document, including without limitation, the fees, costs and expenses of Kirkland &
Ellis LLP, as counsel for certain of the Lenders, and Smith, Gambrell & Russell, LLP, as counsel
for the Agents.



     (i) The Collateral Documents shall have been duly executed by each Person that is to be a
party thereto and shall be in full force and effect on the A&R Effective Date. The Collateral Agent
on behalf of the Secured Parties shall continue to have on the A&R Effective Date the security
interest in the Collateral created on the Original Closing Date of the type and priority described
in Section 3.25 hereof.



     (j) The Collateral Agent shall have received (i) the results of a search of the Uniform
Commercial Code filings (or equivalent filings) made with respect to the Credit Parties in the
States (or other jurisdictions) of formation of such Persons, in which the chief executive office
of each such Person is located and in the other jurisdictions in which such Persons maintain
property, in each case as indicated on such Perfection Certificate, together with copies of the
financing statements (or similar documents) disclosed by such search, and accompanied by evidence
satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or
similar document) would be permitted under Section 6.07 or have been or will be contemporaneously
released or terminated and (ii) bailee letters in favor of the Collateral Agent with respect to
material leased properties of the Credit Parties..



     (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage
under, the insurance policies required by Section 5.04 and the applicable provisions of the
Collateral Documents, each of which shall be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form
and substance satisfactory to the Administrative Agent, and non-renewal, cancellation and amendment
riders providing thirty days’ advance notice to the Collateral Agent.



     (l) The Administrative Agent shall be satisfied that the Leverage Ratio shall be no more than
3.00 to 1.00 as of the A&R Effective Date, calculated after giving pro forma effect to the
Transactions to occur on the A&R Effective Date.



46









 





     (m) Immediately after giving effect to the Transactions and the other transactions
contemplated hereby, the Credit Parties shall have outstanding no Indebtedness or preferred stock
other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness outstanding under
the First Lien Credit Agreement, (c) the High Yield Notes and (d) Indebtedness set forth on
Schedule 6.03.



     (n) The Lenders shall have received the financial statements, certificates and opinion
referred to in Section 3.04, which financial statements shall not be materially inconsistent with
the financial statements or forecasts previously provided to the Lenders and otherwise satisfactory
in form and substance to the Administrative Agent.



     (o) The Lenders shall have received financial projections of Holdings and its Subsidiaries for
the years 2009 through 2012, in form and substance satisfactory to the Administrative Agent.



     (p) All requisite Governmental Authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required, all
applicable appeal periods shall have expired and there shall not be any pending or, (to the
knowledge of any of the Credit Parties) threatened litigation, governmental, administrative or
judicial action that could reasonably be expected to restrain, prevent or impose burdensome
conditions on the Transactions or the other transactions contemplated hereby.



     (q) The Lenders shall be satisfied that the Transactions will not violate (i) any provision of
law, statute, rule or regulation applicable to the Credit Parties or the articles of organization
or other constitutive documents of the Credit Parties or any order of any governmental authority or
(ii) any provision of any indenture or other material instrument or agreement to which any Credit
Party is a party or by which any of them or any of their property is bound.



     (r) The Lenders shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA Patriot Act.



     (s) The Administrative Agent shall be satisfied that the Lenders under the Original Second
Lien Credit Agreement have been, or will be on the A&R Effective Date, paid in full all amounts
required to be paid to them by Borrowers pursuant to Section 2.01(d).



ARTICLE V




Affirmative Covenants




     Each Credit Party executing this Agreement jointly and severally agrees as to all Credit
Parties that until the Commitments have been terminated and the principal of and interest on each
Loan, all fees and all other expenses or amounts then accrued or payable under any Loan Document
and any indemnities for which a claim has been made, shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:



47









 





     SECTION 5.01. Maintenance of Existence and Conduct of Business. Each Credit Party shall:
except as permitted by Section 6.01, do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence in its jurisdiction of formation or
organization, as applicable, and its material rights and franchises; continue to conduct its
business substantially as now conducted or as otherwise permitted hereunder; at all times take all
reasonable action to maintain, preserve and protect all of its assets and properties used or useful
in the conduct of its business, and keep the same in good repair, working order and condition in
all material respects (taking into consideration ordinary wear and tear) and from time to time
make, or cause to be made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with industry practices; and transact business only in such corporate and trade
names as are set forth on Schedule 5.01.



     SECTION 5.02. Payment of Charges.



     (a) Subject to Section 5.02(b), each Credit Party shall pay and discharge or cause to be paid
and discharged promptly all Charges payable by it, including (i) Charges imposed upon it, its
income and profits, or any of its property (real, personal or mixed) and all Charges with respect
to tax, social security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all storage or rental
charges payable to warehousemen or bailees, in each case, before any thereof shall become past due,
except in the case of clauses (ii) and (iii) where the failure to pay or discharge such Charges
would not result in aggregate liabilities in excess of $200,000.



     (b) Each Credit Party may in good faith contest, by appropriate proceedings, the validity or
amount of any Charges, Taxes or claims described in Section 5.02(a); provided that (i) adequate
reserves with respect to such contest are maintained on the books of such Credit Party, in
accordance with GAAP; (ii) no Lien shall be imposed to secure payment of such Charges in excess of
$1,000,000 (other than payments to warehousemen and/or bailees) that is superior to any of the
Liens securing the Obligations and such contest is maintained and prosecuted continuously and with
diligence and operates to suspend collection or enforcement of such Charges; (iii) none of the
Collateral becomes subject to forfeiture or loss as a result of such contest; and (iv) such Credit
Party shall promptly pay or discharge such contested Charges, Taxes or claims and all additional
charges, interest, penalties and expenses, if any, and shall deliver to the Administrative Agent
evidence reasonably acceptable to the Administrative Agent of such compliance, payment or
discharge, if such contest is terminated or discontinued adversely to such Credit Party or the
conditions set forth in this Section 5.02(b) are no longer met.



     SECTION 5.03. Financial Statements, Reports, etc. Each Credit Party shall keep adequate books
and records with respect to its business activities in which proper entries, reflecting all
financial transactions, are made in accordance with GAAP, and in the case of Holdings, furnish to
the Administrative Agent and each Lender:



     (a) (i) within 90 days after the end of each fiscal year, its consolidated balance sheet and
related statements of income and cash flows showing the financial condition of Holdings and its
consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and
the operations of such Subsidiaries during such year, together with comparative figures for



48









 







the immediately preceding fiscal year, all audited by KPMG LLP or other independent public
accountants of recognized national standing and accompanied by an opinion of such accountants
(which opinion shall be without a “going concern” or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the effect that such consolidated
financial statements fairly present the financial condition and results of operations of Holdings
and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, and (ii) within 30 days after the end of each fiscal month of each fiscal year, its
unaudited consolidated (and, for the third fiscal month of each of the first three fiscal quarters,
unaudited consolidating) balance sheet and related statements of operations and cash flows
(consolidated only) showing the financial condition of Holdings and its consolidated Subsidiaries
as of the close of such fiscal month and the results of its operations and the operations of such
Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, and
comparative figures for the same periods in the immediately preceding fiscal year, all certified by
a Financial Officer of Holdings as presenting fairly, in all material respects, the financial
condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP (other than the absence of footnotes, and subject to normal year-end
adjustments).



     (b) concurrently with any delivery of financial statements under paragraph (a) above, a
certificate of the accounting firm (in the case of clause (i) thereof) or Financial Officer (in the
case of clause (ii) thereof) opining on or certifying such statements (which certificate, when
furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility
for legal interpretations) (i) certifying that no Default or Event of Default has occurred or, if
such a Default or an Event of Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and (ii) in the case of
(x) reports due under Section 5.03(a)(i) and (y) reports due under Section 5.03(a)(ii) with respect
to the third fiscal month of each fiscal quarter, setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in
Section 6.10;



     (c) concurrently with any delivery of financial statements under paragraph (a) of this Section
with respect to the third fiscal month of each fiscal quarter, a management report (i) describing
the operations and financial condition of Holdings and its Subsidiaries for the quarter then ended
and the portion of the current fiscal year then elapsed and (ii) discussing the reasons for any
significant variations, which information shall be presented in reasonable detail and shall be
certified by a Financial Officer of Holdings to the effect that such information presents fairly,
in all material respects, the results of operations and financial condition of Holdings and its
Subsidiaries as at the dates and for the periods indicated;



     (d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or distributed to its
shareholders, as the case may be;



49









 





     (e) promptly after the receipt thereof by Holdings or any Subsidiary, a copy of any final
written “management letter” received by any such Person from its certified public accountants and
the management’s response thereto;



     (f) as soon as practicable, copies of all material written notices given or received by any
Credit Party with respect to the First Lien Facilities or any Subordinated Debt or Stock of such
Person, and, within two (2) Business Days after any Credit Party obtains knowledge of any matured
or unmatured event of default with respect to the First Lien Facilities or any Subordinated Debt,
notice of such event of default;



     (g) promptly after the request by any Lender, all documentation and other information that
such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA Patriot
Act; and



     (h) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Borrowers or any Subsidiary, or compliance with
the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.



     SECTION 5.04. Insurance; Damage to or Destruction of Collateral.



     (a) The Credit Parties shall, at their sole cost and expense, maintain the policies of
insurance described on Schedule 3.18 as in effect on the date hereof or otherwise in form and
amounts and with insurers reasonably acceptable to the Administrative Agent. Such policies of
insurance (or the loss payable and additional insured endorsements delivered to the Administrative
Agent) shall contain provisions pursuant to which the insurer agrees to provide thirty (30) days
prior written notice to the Administrative Agent in the event of any non-renewal, cancellation or
amendment of any such insurance policy. If any Credit Party at any time or times hereafter shall
fail to obtain or maintain any of the policies of insurance required above, or to pay all premiums
relating thereto, the Administrative Agent may at any time or times thereafter obtain and maintain
such policies of insurance and pay such premiums and take any other action with respect thereto
that the Administrative Agent deems advisable. The Administrative Agent shall have no obligation to
obtain insurance for any Credit Party or pay any premiums therefor. By doing so, the Administrative
Agent shall not be deemed to have waived any Event of Default arising from any Credit Party’s
failure to maintain such insurance or pay any premiums therefor. All sums so disbursed, including
reasonable attorneys’ fees, court costs and other charges related thereto, shall be payable on
demand by Borrowers to the Administrative Agent and shall be additional Obligations hereunder
secured by the Collateral.



     (b) Each Credit Party shall deliver to the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent, endorsements to (i) all “All Risk” and
business interruption insurance naming the Administrative Agent, on behalf of itself and the
Lenders, as loss payee, and (ii) all general liability and other liability policies naming the
Administrative Agent, on behalf of itself and the Lenders, as additional insured. Each Credit
Party irrevocably makes, constitutes and appoints the Administrative Agent (and all officers,
employees or agents designated by the Administrative Agent), so long as any Event of Default



50









 







has occurred and is continuing or the anticipated insurance proceeds exceed $1,000,000, as such
Credit Party’s true and lawful agent and attorney in fact for the purpose of making, settling and
adjusting claims under such “All Risk” policies of insurance, endorsing the name of such Credit
Party on any check or other item of payment for the proceeds of such “All Risk” policies of
insurance and for making all determinations and decisions with respect to such “All Risk” policies
of insurance. The Administrative Agent shall have no duty to exercise any rights or powers granted
to it pursuant to the foregoing power-of-attorney and shall have no right to exercise such powers
except as permitted under the Intercreditor Agreement. The Borrowers shall promptly notify the
Administrative Agent of any loss, damage, or destruction to the Collateral in the amount of
$1,000,000 or more, whether or not covered by insurance.



     SECTION 5.05. Compliance with Laws. Each Credit Party shall comply with all federal, state,
local and foreign laws and regulations applicable to it, including those relating to ERISA, labor
laws, and Environmental Laws and Environmental Permits, except to the extent that the failure to
comply, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.



     SECTION 5.06. Intellectual Property. Each Credit Party will conduct its business and affairs
without infringement of or interference with any Intellectual Property of any other Person in any
material respect and shall comply in all material respects with the terms of its Licenses.



     SECTION 5.07. Environmental Matters. Each Credit Party shall and shall cause each Person
within its control to: (a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other than noncompliance that
could not reasonably be expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions that are necessary to comply with
Environmental Laws and Environmental Permits pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or Release of any Hazardous Material on, at, in, under,
above, to, from or about any of its Real Estate in all material respects; (c) notify the
Administrative Agent promptly after such Credit Party becomes aware of any violation of
Environmental Laws or Environmental Permits or any Release on, at, in, under, above, to, from or
about any Real Estate that is reasonably likely to result in Environmental Liabilities in excess of
$250,000; and (d) promptly forward to the Administrative Agent a copy of any order, notice, request
for information or any communication or report received by such Credit Party in connection with any
such violation or Release or any other matter relating to any Environmental Laws or Environmental
Permits that could reasonably be expected to result in Environmental Liabilities in excess of
$250,000, in each case whether or not the Environmental Protection Agency or any Governmental
Authority has taken or threatened any action in connection with any such violation, Release or
other matter. If the Administrative Agent at any time has a reasonable basis to believe that there
may be a violation of any Environmental Laws or Environmental Permits by any Credit Party or any
Environmental Liability arising thereunder, or a Release of Hazardous Materials on, at, in, under,
above, to, from or about any of its Real Estate, that, in each case, could reasonably be expected
to have a Material Adverse Effect, then each Credit Party shall, upon the Administrative Agent’s
written request (i) cause the performance of such environmental audits including subsurface
sampling of soil and groundwater, and preparation of such environmental reports, at Borrowers’
expense, as



51









 







the Administrative Agent may from time to time reasonably request, which shall be conducted by
reputable environmental consulting firms reasonably acceptable to the Administrative Agent and
shall be in form and substance reasonably acceptable to the Administrative Agent, and (ii) permit
the Administrative Agent or its representatives to have access to all Real Estate for the purpose
of conducting such environmental audits and testing as the Administrative Agent deems appropriate,
including subsurface sampling of soil and groundwater. Borrowers shall reimburse the Administrative
Agent for the costs of such audits and tests and the same will constitute a part of the Obligations
secured hereunder.



     SECTION 5.08. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real Estate
Purchases. Each Credit Party shall use commercially reasonable efforts to obtain a landlord’s
agreement, mortgagee agreement or bailee letter, as applicable, from the lessor of each leased
property, mortgagee of owned property or bailee with respect to any warehouse or manufacturing,
processor or converter facility where Collateral is stored or located that has an aggregate fair
market value or purchase price (whichever is higher, as determined by the Administrative Agent) in
excess of $100,000 at any time from and after the date of this Agreement, which agreement or letter
shall contain a waiver or subordination of all Liens or claims that the landlord, mortgagee or
bailee may assert against the Collateral at that location, and shall otherwise be reasonably
satisfactory in form and substance to the Administrative Agent. After the A&R Effective Date, no
new real property or new warehouse space shall be leased by any Credit Party and no Inventory shall
be shipped to a processor or converter under arrangements established after the A&R Effective Date
if the Collateral to be stored or located at such location (i) has an aggregate fair market value
or purchase price (whichever is higher, as determined by the Administrative Agent) in excess of
$100,000 or (ii) has an aggregate fair market value or purchase price (whichever is higher, as
determined by the Administrative Agent) when aggregated with Collateral which has been stored at
new real property or new warehouse spaces leased after the A&R Effective Date or shipped to a
processor or converter under arrangements established after the A&R Effective Date in excess of
$500,000, without the prior written consent of the Administrative Agent or, unless and until a
reasonably satisfactory landlord agreement or bailee letter, as appropriate, shall first have been
obtained with respect to such location. Each Credit Party shall timely and fully pay and perform
its obligations in all material respects under all leases and other agreements with respect to each
leased location or public warehouse where any Collateral is or may be located. In addition to the
foregoing, Victor may store, keep or otherwise maintain (i) Inventory in an amount not to exceed
$12,000,000 in the aggregate, and (ii) other Collateral in an amount not to exceed $6,000,000 in
the aggregate, at any warehouse or facility operated in Mexico by Victor Equipment de Mexico S.A.
de C.V. (“Victor Mexico”) so long as Victor Mexico is a wholly owned direct Subsidiary of any
Borrower. To the extent otherwise permitted hereunder, if any Credit Party proposes to acquire a
fee ownership interest in Real Estate after the A&R Effective Date, it shall first provide to the
Collateral Agent a mortgage or deed of trust granting the Collateral Agent a first priority (or
second priority, if the Intercreditor Agreement shall still be in effect) Lien on such Real Estate,
together with environmental audits, mortgage title insurance commitment, real property survey,
local counsel opinion(s), and, if required by the Administrative Agent, supplemental casualty
insurance and flood insurance, and such other documents, instruments or agreements reasonably
requested by the Administrative Agent, in each case, in form and substance reasonably satisfactory
to the Administrative Agent.



52









 





     SECTION 5.09. Use of Proceeds. The Borrowers shall utilize the proceeds of the Loans only for
the purpose specified in the introductory statement to this Agreement.



     SECTION 5.10. Cash Management Systems. The Borrowers will maintain until the Maturity Date the
cash management systems described in the First Lien Credit Agreement.



     SECTION 5.11. Further Assurances. Each Credit Party executing this Agreement agrees that it
shall and shall cause each other Credit Party to, at such Credit Party’s expense and upon the
reasonable request of the Administrative Agent, duly execute and deliver, or cause to be duly
executed and delivered, to the Administrative Agent such further instruments and do and cause to be
done such further acts as may be necessary or proper in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purposes of this Agreement
and each Loan Document.



     SECTION 5.12. Communication with Accountants. Each Credit Party executing this Agreement
authorizes (a) Administrative Agent and (b) so long as an Event of Default has occurred and is
continuing, each Lender, to communicate directly with its independent certified public accountants,
including KPMG, LLP, and authorizes those accountants and advisors to communicate to Administrative
Agent and each Lender information relating to any Credit Party with respect to the business,
results of operations and financial condition of any Credit Party.



ARTICLE VI




Negative Covenants




     Each Credit Party executing this Agreement jointly and severally agrees as to all Credit
Parties that until the Commitments have been terminated and the principal of and interest on each
Loan, all fees and all other expenses or amounts then accrued or payable under any Loan Document
and any indemnities for which a claim has been made, shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:



     SECTION 6.01. Mergers, Subsidiaries, Etc. No Credit Party shall, by operation of law or
otherwise, (a) form a new Subsidiary, unless otherwise permitted hereunder, or (b) merge or
amalgamate with, consolidate with, acquire all or substantially all of the assets or Stock of, or
otherwise combine with or acquire, any Person, except (i) any Borrower may merge, amalgamate or
consolidate with, or acquire the assets or Stock of any other Borrower, (ii) any Subsidiary of
Holdings that is not a Credit Party may merge, amalgamate or consolidate with, or acquire the
assets or Stock of another Subsidiary of Holdings that is not a Credit Party, (iii) any Borrower
may merge, amalgamate or consolidate with, or acquire the Stock or assets of any other Subsidiary
of Holdings that is a Credit Party, (iv) any Credit Party that is not a Borrower may merge or
consolidate with, or acquire the assets or Stock of any other Credit Party that is not a Borrower,
and (v) for transactions otherwise permitted under Section 6.02 or 6.08; provided, that in the case
of clause (iii) above, the continuing or surviving Person, or the transferee, as the case may be,
shall be a Borrower.



     SECTION 6.02. Investments; Loans and Advances. Except as otherwise expressly permitted by
this Article VI, no Credit Party shall, or shall cause or permit its Foreign



53









 







Subsidiaries to, make or permit to exist any investment in, or make, accrue or permit to exist
loans or advances of money to, any Person, through the direct or indirect lending of money, holding
of securities or otherwise, except:



     (a) that Borrowers and Foreign Subsidiaries may hold investments comprised of notes payable
issued by Account Debtors to any Borrower or any Foreign Subsidiary pursuant to negotiated
agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of
business consistent with past practices;



     (b) each Credit Party and Foreign Subsidiary may maintain (i) its existing investments, loans
and advances in its Subsidiaries as of June 29, 2007, (ii) other investments, loans and advances
investments specifically consented to by the Lenders pursuant to Section 9.08 of this Agreement
prior to the A&R Effective Date, and (iii) its existing investments, loans and advances made
between June 29, 2007 and the A&R Effective Date, provided, however, that no Default or Event of
Default existed as a result thereof immediately after giving effect thereto, and provided, further,
that this Section 6.02(b)(iii) shall not apply with respect to any investments described in Section
6.02(g) made during fiscal year 2009 and investments described in Section 6.02(i).



     (c) any Borrower may make investments, loans and advances in any other Borrower;



     (d) any Foreign Subsidiary may make investments, loans and advances in any other Foreign
Subsidiaries;



     (e) any Borrower may make investments in any Credit Party (other than Holdings) that is not a
Borrower; provided that such investments in the Credit Parties shall not exceed $100,000 in the
aggregate since the A&R Effective Date;



     (f) any Borrower may make investments in, or create, any wholly-owned Domestic Subsidiary,
provided that such Subsidiary becomes a Borrower, the Stock of such Subsidiary is pledged to the
Administrative Agent, and such Subsidiary grants Liens to the Administrative Agent on all of its
assets to secure the Obligations, subject only to Permitted Encumbrances;



     (g) the Credit Parties (other than Holdings) may make loans to Holdings, in lieu of
distributions permitted under Section 6.13(d), the proceeds of which shall be used by Holdings
solely to pay out of pocket expenses for administrative, legal and accounting services provided by
third parties that are reasonable and customary and incurred in the ordinary course of business for
such professional services, or to pay franchise fees, costs and expenses associated with the
issuance and maintenance of its capital stock and similar costs and expenses, in an annual
aggregate amount not to exceed $3,000,000 per fiscal year after the A&R Effective Date (less, in
respect of fiscal year 2009, any amounts used pursuant to Section 6.02(g) of the Original Second
Lien Credit Agreement during such fiscal year);



     (h) the Credit Parties (other than Holdings) may make loans to Holdings, in lieu of
distributions permitted under Section 6.13(e), the proceeds of which shall be used by Holdings
solely to pay taxes as part of a consolidated, combined or unitary group;



54









 





     (i) any Borrower may make investments in, and loans and advances to, or create, any
wholly-owned Foreign Subsidiary (and may maintain any such investments made), such that the
aggregate amount of all such investments, loans and advances in such direct Foreign Subsidiaries
funded since June 29, 2007 shall not exceed $5,000,000 (exclusive of investments permitted in
clause (k) of this Section 6.02); provided that 65% of such stock of such direct Foreign Subsidiary
shall be pledged to secure the Obligations; provided further that to the extent a portion of the
$5,000,000 basket amount is invested in Thermadyne Victor Ltda. that portion of the basket amount
may be restored to the extent of cash received by any Borrower constituting proceeds of the sale of
assets or stock of Thermadyne Victor Ltda.;



     (j) [Reserved];



     (k) any Credit Party or Foreign Subsidiary may make investments in any of its Foreign
Subsidiaries consisting of the conversion of intercompany loans (but not intercompany accounts
payable) outstanding as of the A&R Effective Date into equity;



     (l) so long as no Event of Default has occurred and is continuing, the Borrowers may make
investments, subject to Control Letters in favor of the Administrative Agent for the benefit of the
Lenders or otherwise subject to a perfected security interest in favor of the Administrative Agent
for the benefit of the Lenders, in (i) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof maturing within one year from the
date of acquisition thereof, (ii) commercial paper maturing no more than one year from the date of
creation thereof and currently having the highest rating obtainable from either S&P or Moody’s,
(iii) certificates of deposit maturing no more than one year from the date of creation thereof
issued by commercial banks incorporated under the laws of the United States of America, each having
combined capital, surplus and undivided profits of not less than $300,000,000 and having a senior
unsecured rating of “A” or better by a nationally recognized rating agency (an “A Rated Bank”),
(iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with A
Rated Banks and (v) mutual funds that invest solely in one or more of the investments described in
clauses (i) through (iv) above;



     (m) other investments by Credit Parties and Foreign Subsidiaries not exceeding $100,000 in the
aggregate at any time outstanding;



     (n) transactions permitted pursuant to Section 6.04;



     (o) Capital Expenditures to the extent permitted by the First Lien Credit Agreement.



     SECTION 6.03. Indebtedness.



     (a) No Credit Party shall, or shall cause or permit its Foreign Subsidiaries to, create,
incur, assume or permit to exist any Indebtedness, except (without duplication):




     (i) Indebtedness secured by purchase money security interests and Capital Leases
permitted in Section 6.07;




     (ii) the Loans and the other Obligations;



55









 






     (iii) unfunded pension fund and other employee benefit plan obligations and liabilities
to the extent they are permitted to remain unfunded under applicable law;




     (iv) existing Indebtedness described on Schedule 6.03 and refinancings thereof or
amendments or modifications thereto that do not have the effect of increasing or decreasing
the principal amount thereof or changing the amortization thereof (other than to extend the
same) and that are otherwise on terms and conditions no less favorable to any Credit Party,
Foreign Subsidiary, the Administrative Agent or any Lender, as reasonably determined by the
Administrative Agent, than the terms of the Indebtedness being refinanced, amended or
modified;




     (v) Indebtedness arising from investments, loans or advances among the Credit Parties and
any other Subsidiary of Holdings that are permitted under Section 6.02 (including extensions
of the maturity thereof);




     (vi) Indebtedness consisting of Guaranteed Indebtedness permitted pursuant to Section
6.06;




     (vii) Indebtedness owed to JPMorgan Chase Bank, N.A. or any of its banking affiliates in
respect of any liabilities arising from treasury, depository and cash management services or
in connection with any automated clearing house transfers of funds not to exceed $500,000 in
the aggregate at any time outstanding;




     (viii) Indebtedness consisting of hedging agreements providing protection against
fluctuations in currency values or commodity prices in connection with any Borrower’s or any
of its Subsidiaries’ operations, so long as management of such Borrower or such Subsidiary, as
the case may be, has determined that the entering into of any such hedging agreement is a bona
fide hedging activity (and is not for speculative purposes);




     (ix) Indebtedness of Foreign Subsidiaries (excluding Capital Lease Obligations) in an
aggregate outstanding principal amount not to exceed $15,000,000 since the A&R Effective Date;




     (x) Indebtedness consisting of intercompany loans and advances made by any Borrower to
any other Borrower; provided that (A) each Borrower shall record all intercompany transactions
on its books and records in a manner reasonably satisfactory to the Administrative Agent; (B)
the obligations of each Borrower under any such intercompany loans and advances shall be
subordinated in right of payment to the Obligations of such Borrower hereunder; (C) at the
time any such intercompany loan or advance is made by any Borrower to any other Borrower and
after giving effect thereto, each such Borrower shall be Solvent; and (D) no Event of Default
would occur and be continuing after giving effect to any such proposed intercompany loan;




     (xi) Indebtedness consisting of intercompany loans and advances made by any Foreign
Subsidiary to any other Foreign Subsidiary;



56









 






     (xii) obligations of any Credit Party under any interest rate swap, cap or collar
agreement or similar agreement or arrangement related to exposure to interest rates with
respect to not more than $50,000,000 principal amount of Indebtedness; and




     (xiii) Indebtedness under the First Lien Facilities and Indebtedness incurred to
refinance, extend, renew, restructure or replace, or in exchange for, such Indebtedness, in
whole or in part.



     (b) No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or
prepay any principal of, premium, if any, interest or other amount payable in respect of any
Indebtedness prior to its scheduled amortization dates, other than:




     (i) the Obligations and the obligations under the First Lien Facilities;




     (ii) Indebtedness secured by a Permitted Encumbrance if the asset securing such
Indebtedness has been sold or otherwise disposed of in accordance with Section 6.08(b) or (c);




     (iii) Indebtedness permitted by Section 6.03(a)(iv) upon any refinancing thereof in
accordance with Section 6.03(a)(iv);




     (iv) other prepayments of Indebtedness (excluding any Subordinated Debt) not in excess of
$250,000 in the aggregate since the A&R Effective Date;




     (v) no more than once in any fiscal year within 30 days after the Administrative Agent’s
receipt of the Borrowers’ audited annual financial statements in accordance with Section 5.03,
a prepayment of the High Yield Notes in an amount equal to the Excess Cash Flow Amount (as
defined in the Indenture Agreement), the calculation of which shall be reasonably satisfactory
to the Administrative Agent, and otherwise in accordance with the amendments to the Indenture
specified in the Supplemental Indenture attached as Exhibit A to Amendment No. 14 and Consent
to the Original Second Lien Credit Agreement dated as of May 9, 2006, so long as Holdings has
given three Business Days’ prior written notice to the Administrative Agent of such proposed
prepayment and the following conditions shall be satisfied: (x) prior to any such prepayment
the Borrowers shall have prepaid the term loans under the First Lien Credit Agreement in full,
(y) no Event of Default shall have occurred and be continuing both before and after giving
effect to such prepayment and (z) after giving effect to any such prepayment the average daily
Borrowing Availability (as defined in the First Lien Credit Agreement), as determined by the
First Lien Agent, shall have been not less than the greater of (A) $20,000,000 (with all trade
payables being paid current in the ordinary course of business other than those being
contested in the ordinary course of business) during the 30-day period immediately prior to
such payment and (B) 4.0% of revenue for the immediately preceding fiscal year as supported by
the audited annual financial statements for such fiscal year delivered pursuant to Section
5.03;




     (vi) voluntary prepayments of the High Yield Notes at any time during a fiscal year after
the mandatory prepayment of the High Yield Notes for that fiscal year (as described in clause
(v) above) has been paid; provided that the following conditions shall



57









 







be met: (x) no Event of Default shall have occurred and be continuing both before and after
giving effect to such prepayment, (y) after giving effect to any such prepayment the average
daily Borrowing Availability, as determined by the First Lien Agent, shall have been not less
than $15,000,000 (with all trade payables being paid current other than those being contested
in the ordinary course of business) during the 30-day period immediately prior to such payment
and (z) Borrowers shall deliver to the Administrative Agent projections demonstrating that the
average daily Borrowing Availability shall not be less than $15,000,000 (with all trade
payables being paid current) during the 30-day period after the date of such voluntary
prepayment; and




     (vii) mandatory prepayments of the High Yield Notes with proceeds of Asset Dispositions,
as defined in, and to the extent required by Section 4.06 of the Indenture Agreement.



     SECTION 6.04. Employee Loans and Affiliate Transactions.



     (a) No Borrower shall enter into or be a party to any transaction with any other Credit Party
(other than other Borrowers) or any Affiliate thereof except in the ordinary course of and pursuant
to the reasonable requirements of such Borrower’s business and upon fair and reasonable terms that
are no less favorable to such Borrower than would be obtained in a comparable arm’s length
transaction with a Person not an Affiliate of such Borrower (except for transactions otherwise
expressly permitted hereunder). In addition, if any such transaction or series of related
transactions (other than purchases and sales of Inventory in the ordinary course of business)
involves payments in excess of $500,000 in the aggregate, the terms of these transactions must be
disclosed in advance to the Administrative Agent and the Lenders. All such transactions in excess
of $500,000 existing as of the A&R Effective Date are described on Schedule 6.04(a).



     (b) No Credit Party shall enter into any lending or borrowing transaction with any employees
of any Credit Party, except loans to its respective employees in the ordinary course of business
consistent with past practices for travel and entertainment expenses, relocation costs and similar
purposes and stock option financing up to a maximum of $1,000,000 in the aggregate at any one time
outstanding.



     SECTION 6.05. Capital Structure and Business. If all or part of a Credit Party’s Stock is
pledged to the Administrative Agent, that Credit Party shall not issue additional Stock. No Credit
Party shall amend its charter or bylaws in a manner that would adversely affect the Administrative
Agent or the Lenders or such Credit Party’s duty or ability to repay the Obligations. No Credit
Party shall engage in any business other than the businesses currently engaged in by it or
businesses reasonably related thereto.



     SECTION 6.06. Guaranteed Indebtedness. No Credit Party shall, or shall cause or permit its
Foreign Subsidiaries to, create, incur, assume or permit to exist any Guaranteed Indebtedness
except (a) by endorsement of instruments or items of payment for deposit to the general account of
any Credit Party, (b) for Guaranteed Indebtedness incurred for the benefit of any other Credit
Party if the primary obligation is expressly permitted by this Agreement, including without
limitation the guaranty of the High Yield Notes by the Collateral Parties and



58









 







the guaranty of the First Lien Loan Obligations (as defined in the Intercreditor Agreement) by the
Credit Parties, and (c) Guaranteed Indebtedness incurred for the benefit of any Foreign Subsidiary
by any other Foreign Subsidiary if the primary obligation is permitted by this Agreement.



     SECTION 6.07. Liens. No Credit Party shall, or shall cause or permit its Foreign Subsidiaries
to, create, incur, assume or permit to exist any Lien on or with respect to its Accounts or any of
its other properties or assets (whether now owned or hereafter acquired) except for:



     (a) Permitted Encumbrances;



     (b) Liens in existence on the date hereof and summarized on Schedule 6.07 securing the
Indebtedness described on Schedule 6.03 and permitted refinancings, extensions and renewals
thereof, including extensions or renewals of any such Liens; provided that the principal amount of
the Indebtedness so secured is not increased and the Lien does not attach to any other property;



     (c) any Liens granted by Foreign Subsidiaries to secure Indebtedness permitted by Section
6.03(a);



     (d) Liens under any conditional sale or other title retention agreements (including Capital
Leases) or in connection with purchase money Indebtedness with respect to Equipment and Fixtures
acquired by (i) any Credit Party in the ordinary course of business, involving the incurrence of an
aggregate amount of purchase money Indebtedness and Capital Lease Obligations of not more than
$23,000,000 outstanding at any one time for all such Liens and (ii) any Foreign Subsidiary in the
ordinary course of business, involving the incurrence of an aggregate amount of purchase money
Indebtedness and Capital Lease Obligations of not more than $6,500,000 (excluding any sale
leaseback transaction permitted under Section 6.11) outstanding at any one time for all such Liens;
provided that, in each case, such Liens attach only to the assets subject to such purchase money
debt and such Indebtedness is incurred within twenty (20) days following such purchase and does not
exceed 100% of the purchase price of the subject assets; and



     (e) other Liens securing Indebtedness not exceeding $250,000 in the aggregate at any time
outstanding, so long as such Liens do not attach to any Accounts or Inventory.



In addition, no Credit Party shall become a party to any agreement, note, indenture or instrument,
or take any other action, that would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent, on behalf of itself and the Lenders, as
additional collateral for the Obligations, except operating leases, Capital Leases or Licenses
which prohibit Liens upon the assets that are subject thereto.



     SECTION 6.08. Sale of Stock and Assets. No Credit Party shall sell, transfer, convey, assign
or otherwise dispose of any of its properties or other assets, including the Stock of any of its
Subsidiaries (whether in a public or a private offering or otherwise) or any of its Accounts, other
than:



59









 





     (a) the sale of Inventory in the ordinary course of business;



     (b) the sale or other disposition by a Credit Party of Equipment and Fixtures that are
obsolete or no longer used or useful in such Credit Party’s business and having a book value not
exceeding (i) $1,000,000 in the aggregate in any fiscal year (less, in respect of fiscal year 2009)
any amounts used pursuant to Section 6.08(b)(i) of the Original Second Lien Credit Agreement during
such fiscal year) without the Administrative Agent’s consent and (ii) $2,000,000 in the aggregate
in any fiscal year (less, in respect of fiscal year 2009, any amounts used pursuant to Section
6.08(b)(ii) of the Original Second Lien Credit Agreement during such fiscal year) without the
consent of the Required Lenders;



     (c) the sale or discount of overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof;



     (d) sales of Stock or assets of any Subsidiary of Holdings in connection with a transaction
permitted under Section 6.01(b) or Section 6.02(f) or (h);



     (e) the sale or other disposition of other Equipment and Fixtures having a book value not
exceeding $250,000 in the aggregate in any Fiscal Year and $500,000 in the aggregate; and



     (f) as permitted in Section 6.02(k); and



     (g) the sale of 73 Gower Street, Preston, Victoria 3072 Australia for fair market value to an
unrelated third party; provided, however, that the terms and conditions of Section 2.12(a)) hereof
are satisfied.



     SECTION 6.09. ERISA. No Credit Party shall, or shall cause or permit any ERISA Affiliate to,
cause or permit to occur (i) an event that could result in the imposition of a Lien under Section
412 of the IRC or Section 302 or 4068 of ERISA or (ii) an ERISA Event to the extent such ERISA
Event would reasonably be expected to result in taxes, penalties and other liabilities in an
aggregate amount in excess of $250,000 in the aggregate.



     SECTION 6.10. Senior Leverage Ratio. Holdings and its Subsidiaries, on a consolidated basis
at the end of each Fiscal Quarter, shall not permit the Leverage Ratio as of the last day of that
Fiscal Quarter and for the 12-month period then ended to be more than 3.00.



     SECTION 6.11. Sale Leasebacks. No Credit Party shall, or shall cause or permit its Foreign
Subsidiaries to, engage in any sale leaseback or synthetic lease transaction involving any of its
assets, except for such transactions not in excess of $2,000,000 in the aggregate since the A&R
Effective Date for all Foreign Subsidiaries.



     SECTION 6.12. Cancellation of Indebtedness. No Credit Party shall cancel any claim or debt
owing to it, except for reasonable consideration negotiated on an arm’s length basis and in the
ordinary course of its business consistent with past practices (other than as permitted under
Section 6.02(k)).



     SECTION 6.13. Restricted Payments. No Credit Party shall make any Restricted Payment, except:



60









 





     (a) intercompany loans and advances between Borrowers to the extent permitted by Section 6.02
and 6.03;



     (b) dividends and distributions by Subsidiaries of any Borrower paid to such Borrower;



     (c) employee loans permitted under Section 6.04(b);



     (d) payments of principal and interest on intercompany loans issued in accordance with Section
6.03;



     (e) distributions to Holdings, the proceeds of which shall be applied by Holdings directly to
pay out of pocket expenses, for administrative, legal and accounting services provided by third
parties that are reasonable and customary and incurred in the ordinary course of business for such
professional services, or to pay franchise fees, costs and expenses associated with the issuance
and maintenance of its capital stock and similar costs and expenses, in an annual aggregate amount
not in excess of $3,000,000 per fiscal year (less, in respect of fiscal year 2009, any amounts used
under Section 6.13(e) of the Original Second Lien Credit Agreement during such fiscal year);



     (f) distributions to Holdings in such amounts as are necessary to enable Holdings to pay
income taxes as part of a consolidated group when and as such income taxes are due; provided that
the aggregate amount distributed to pay such income taxes by Credit Parties shall not exceed their
proportionate share of such income taxes based on the taxable income generated by the Credit
Parties as compared to the taxable income generated by all of Holdings’ Subsidiaries; and



     (g) distributions to Holdings, the proceeds of which will be used by Holdings to make payments
of interest on the High Yield Notes to the extent such payments are not barred under Article X of
the Indenture.



     SECTION 6.14. Change of Corporate Name, State of Incorporation or Location; Change of Fiscal
Year. Without altering the restrictions on mergers involving Credit Parties herein contained, no
Credit Party shall (a) change its name as it appears in official filings in the state of its
incorporation or other organization, (b) change its chief executive office, principal place of
business, corporate offices or warehouses or locations at which Collateral is held or stored, or
the location of its records concerning the Collateral, (c) change the type of entity that it is,
(d) change its organization identification number, if any, issued by its state of incorporation or
other organization, or (e) change its state of incorporation or organization or incorporate or
organize in any additional jurisdictions, in each case without at least thirty (30) days prior
written notice to the Administrative Agent and after the Administrative Agent’s written
acknowledgment that any reasonable action requested by the Administrative Agent in connection
therewith, including to continue the perfection of any Liens in favor of the Administrative Agent,
on behalf of the Lenders, in any Collateral, has been completed or taken, and provided that any
such new location shall be in the continental United States. No Credit Party shall change its
fiscal year.



61









 





     SECTION 6.15. No Impairment of Intercompany Transfers. No Credit Party shall, or shall cause
or permit its Foreign Subsidiaries to, directly or indirectly enter into or become bound by any
agreement, instrument, indenture or other consensual obligation (other than this Agreement, the
other Loan Documents, the High Yield Notes and any loan documents executed in connection therewith
and any other documents reflecting Indebtedness permitted pursuant to Section 6.03) that could
directly or indirectly restrict, prohibit or require the consent of any Person with respect to the
payment of dividends or distributions or the making or repayment of intercompany loans by a
Subsidiary of any Borrower to any Borrower or between Borrowers.



     SECTION 6.16. Real Estate Purchases. No Credit Party shall purchase a fee simple ownership
interest in Real Estate with an aggregate purchase price in excess of $500,000.



     SECTION 6.17. Changes Relating to High Yield Notes. No Credit Party shall change or amend the
terms of any Subordinated Debt (or any indenture or agreement in connection therewith) including,
without limitation, the High Yield Notes, if the effect of such amendment is to: (a) increase the
interest rate on such Subordinated Debt; (b) change the dates upon which payments of principal or
interest are due on such Subordinated Debt other than to extend such dates; (c) change any default
or event of default other than to delete or make less restrictive any default provision therein, or
add any covenant with respect to such Subordinated Debt; (d) change the redemption or prepayment
provisions of such Subordinated Debt other than to extend the dates therefor or to reduce the
premiums payable in connection therewith; (e) grant any security or collateral to secure payment of
such Subordinated Debt; or (f) change or amend any other term if such change or amendment would
materially increase the obligations of the Credit Party thereunder or confer additional material
rights on the holder of such Subordinated Debt in a manner adverse to any Credit Party, the
Administrative Agent or any Lender.



     SECTION 6.18. Holdings. Holdings shall not engage in any trade or business other than as a
holding company for its Subsidiaries, or own any assets (other than Stock of its Subsidiaries) or
incur any Indebtedness or Guaranteed Indebtedness (other than the Obligations and the High Yield
Notes); provided, that Holdings may guarantee leases and other contractual obligations of its
Subsidiaries.



     SECTION 6.19. Hazardous Materials. No Credit Party shall cause or permit a Release of any
Hazardous Material on, at, in, under, above, to, from or about any of the Real Estate where such
Release would (a) violate in any respect, or form the basis for any Environmental Liabilities
under, any Environmental Laws or Environmental Permits or (b) otherwise adversely impact the value
or marketability of any of the Real Estate or any of the Collateral, other than such violations or
Environmental Liabilities that could not reasonably be expected to have a Material Adverse Effect.



     SECTION 6.20. Thermadyne Cylinder Co. Thermadyne Cylinder Co., shall not, and the Credit
Parties shall cause it not to, engage in any trade or business, or own or hold any assets (other
than real property currently owned or held by it), or incur any Indebtedness or Guaranteed
Indebtedness, or make any Investments.



62









 





ARTICLE VII




Events of Default; Rights and Remedies




     SECTION 7.01. Events of Default. The occurrence of any one or more of the following events
(regardless of the reason therefor) shall constitute an “Event of Default” hereunder:



     (a) Any Borrower (i) fails to make any payment of principal of the Loans or any of the other
Obligations when due and payable, (ii) fails to make any payment of interest on, or fees owing in
respect of, the Loans or any of the other Obligations when due and payable, and such default shall
continue unremedied for more than three (3) days, or (iii) fails to pay or reimburse the
Administrative Agent or the Lenders for any expense reimbursable hereunder or under any other Loan
Document within five (5) days following the Administrative Agent’s demand for such reimbursement or
payment of expenses.



     (b) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of
Section 5.04(a), 5.09 or 5.10 or Article VI.



     (c) Any Borrower fails or neglects to perform, keep or observe any of the provisions of
Section 5.03, and the same shall remain unremedied for three (3) Business Days or more.



     (d) Any Credit Party fails or neglects to perform, keep or observe any other provision of this
Agreement or of any of the other Loan Documents (other than any provision embodied in or covered by
any other clause of this Section 7.01) and the same shall remain unremedied for twenty-five (25)
days or more.



     (e) A default or breach occurs under any other agreement, document or instrument to which any
Credit Party is a party that is not cured within any applicable grace period therefor, and such
default or breach (i) involves the failure to make any payment when due in respect of any
Indebtedness or Guaranteed Indebtedness (other than the Obligations) of any Credit Party in excess
of $500,000 in the aggregate (including amounts owing to all creditors under any combined or
syndicated credit arrangements), or (ii) causes, or permits any holder of such Indebtedness or
Guaranteed Indebtedness or a trustee to cause, Indebtedness or Guaranteed Indebtedness or a portion
thereof in excess of $500,000 in the aggregate to become due prior to its stated maturity or prior
to its regularly scheduled dates of payment, or cash collateral in respect thereof to be demanded,
in each case, regardless of whether such default is waived, or such right is exercised, by such
holder or trustee (provided that, a default described under this subclause (ii) with respect to the
First Lien Facilities will not constitute an Event of Default under this paragraph (e) until the
acceleration of the loans under the First Lien Credit Agreement.



     (f) Any representation or warranty herein or in any Loan Document or in any written statement,
report, financial statement or certificate made or delivered to the Administrative Agent, the
Collateral Agent or any Lender by any Credit Party is untrue or incorrect in any material respect
as of the date when made or deemed made.



     (g) Assets of any Credit Party with a fair market value of $250,000 or more are attached,
seized, levied upon or subjected to a writ or distress warrant, or come within the



63









 







possession of any receiver, trustee, custodian or assignee for the benefit of creditors of any
Credit Party and such condition continues for twenty (20) days or more.



     (h) A case or proceeding is commenced against any Credit Party seeking a decree or order in
respect of such Credit Party (i) under the Bankruptcy Code, or any other applicable federal, state
or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party’s assets, or (iii) ordering the winding-up or liquidation
of the affairs of such Credit Party, and such case or proceeding shall remain undismissed or
unstayed for sixty (60) days or more or a decree or order granting the relief sought in such case
or proceeding is granted by a court of competent jurisdiction.



     (i) Any Credit Party (i) files a petition seeking relief under the Bankruptcy Code, or any
other applicable federal, state or foreign bankruptcy or other similar law, (ii) consents to or
fails to contest in a timely and appropriate manner the institution of proceedings thereunder or
the filing of any such petition or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party
or for any substantial part of any such Credit Party’s assets, (iii) makes an assignment for the
benefit of creditors, (iv) takes any action in furtherance of any of the foregoing; or (v) admits
in writing its inability to, or is generally unable to, pay its debts as such debts become due.



     (j) A final judgment or judgments for the payment of money in excess of $1,000,000 in the
aggregate at any time are outstanding against one or more of the Credit Parties, and the same are
not, within thirty (30) days after the entry thereof, discharged or execution thereof stayed or
bonded pending appeal, or such judgments are not discharged prior to the expiration of any such
stay.



     (k) Any material provision of any Loan Document for any reason ceases to be valid, binding and
enforceable in accordance with its terms (or any Credit Party shall challenge the enforceability of
any Loan Document or shall assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms), or any Lien created under any Loan
Document ceases to be a valid and perfected first priority Lien (except as otherwise permitted
herein or therein) in any of the Collateral purported to be covered thereby other than as a result
of actions or omissions of the Administrative Agent or the Collateral Agent.



     (l) Any Change of Control occurs.



     (m) Any material uninsured claims relating to exposure to asbestos shall be asserted against
any Credit Party, which claims have a reasonable likelihood of success.



     SECTION 7.02. Remedies. If any Event of Default has occurred and is continuing, the
Administrative Agent may (and at the written request of the Required Lenders shall), declare all or
any portion of the Obligations, including all or any portion of any Loan to be forthwith due and
payable, all without presentment, demand, protest or further notice of any kind, all of which are
expressly waived by Borrowers and each other Credit Party, or exercise any rights and



64









 







remedies provided to the Administrative Agent and the Collateral Agent under the Loan Documents or
at law or equity, including all remedies provided under the Code; provided that upon the occurrence
of an Event of Default specified in Section 7.01(h) or (i), the Commitments shall be immediately
terminated and all of the Obligations, including all or any portion of any Loan, shall become
immediately due and payable without declaration, notice or demand by any Person.



     SECTION 7.03. Waivers by Credit Parties. Except as otherwise provided for in this Agreement or
by applicable law, each Credit Party waives (including for purposes of Article X): (a) presentment,
demand and protest and notice of presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or
renewal of any or all commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties at any time held by the Administrative Agent or the Collateral Agent on which
any Credit Party may in any way be liable, and hereby ratifies and confirms whatever the
Administrative Agent or Collateral Agent may do in this regard, (b) all rights to notice and a
hearing prior to the Administrative Agent’s taking possession or control of, or to the
Administrative Agent’s or the Collateral Agent’s replevy, attachment or levy upon, the Collateral
or any bond or security that might be required by any court prior to allowing the Administrative
Agent to exercise any of its remedies, and (c) the benefit of all valuation, appraisal, marshaling
and exemption laws.



ARTICLE VIII




The Agents




     Each of the Lenders hereby irrevocably appoints the Administrative Agent and the Collateral
Agent (for purposes of this Article, the Administrative Agent, the Collateral Agent and the Funding
Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take
such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms
of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Collateral Documents.



     The bank serving as the Administrative Agent and/or the Collateral Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with any Credit Party or other Affiliate
thereof as if it were not an Agent hereunder.



     Neither Agent shall have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is instructed in writing to exercise by the Required Lenders (or such other



65









 







number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall
have any duty to disclose, nor shall it be liable for the failure to disclose, any information
relating to Credit Party that is communicated to or obtained by the bank serving as Administrative
Agent and/or Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall be
liable for any action taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.08) or in the absence of its own gross negligence or willful
misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by a Credit Party or a Lender, and neither Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to such Agent.



     Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may
also rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult
with legal counsel (who may be counsel for the Borrowers), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Agent.



     Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right, subject, if no Event of Default shall have
occurred and be continuing, to the consent of the Borrowers (not to be unreasonably withheld), to
appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, subject, if no Event of Default shall have occurred and
be continuing, to the consent of the Borrowers (not to be unreasonably withheld), on behalf of the
Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the



66









 







acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by
the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrowers and such successor. After an Agent’s resignation hereunder,
the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while acting as Agent.



     Each Lender acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or thereunder.



ARTICLE IX




Miscellaneous




     SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:



     (a) if to the Borrowers or any other Credit Party, to Holdings at Thermadyne Holdings
Corporation, 16052 Swingley Ridge Rd., Suite 300, Chesterfield, Missouri 63017, Attention: Steven
A. Schumm, Senior Vice President, Chief Financial Officer (Fax No.: (636) 728-3010), with copies
(excluding notices and communications with respect to borrowings and payments in the ordinary
course of business under this Agreement) delivered to (i) Nick H. Varsam, Vice President, General
Counsel and Corporate Secretary, of the Borrowers at the address of the Borrowers set forth above
(Fax No.: (636) 728-3011), and (ii) Steven Pozaric, Armstrong Teasdale LLP, One Metropolitan
Square, Suite 2600, St. Louis, Missouri 63102 (Fax No.: (314) 612-2343).



     (b) if to the Administrative Agent or the Collateral Agent, to Regions Bank at 260 Peachtree
Street, N.E. Suite 1800 Atlanta, GA 30303, Attention Eric Knoll/Corporate Trust (Fax No. (404)
581-3770); and;



     (c) if to a Lender, to it at its address (or fax number) set forth in its Administrative
Questionnaire.



     All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed



67









 




(properly addressed) to such party as provided in this Section or in accordance with the latest
unrevoked direction from such party given in accordance with this Section. As agreed to among the
Credit Parties, the Administrative Agent, the Collateral Agent and the applicable Lenders from time
to time, notices and other communications may also be delivered by e-mail to the e-mail address of
a representative of the applicable Person provided from time to time by such Person.




     SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by any Credit Party herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and shall survive the making by the Lenders of
the Loans, regardless of any investigation made by the Lenders or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount then accrued or payable under this Agreement or any other Loan
Document is outstanding and unpaid and so long as the Commitments have not been terminated;
provided, however, that nothing in this sentence shall be deemed to affect the nature of any
representation, warranty or other statement made by any Credit Party in this Agreement and the
other Loan Documents. The provisions of Section 2.13, 2.15, 2.19 and 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent or any Lender.



     SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by each Credit Party, the Lenders then party hereto and the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto.



     SECTION 9.04. Successors and Assigns.



     (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrowers, the Administrative Agent, the Collateral
Agent or the Lenders that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.



     (b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its Loans at the time owing to
it), and the Funding Agent may assign to one or more assignees all or a portion of its interests,
rights and obligations under this Agreement in respect of the Loans held by it (which shall be held
as Funding Agent and not in any lending capacity), with the prior written consent of the
Administrative Agent (not to be unreasonably withheld or delayed); provided, however, that (i)
except in the case of any such assignment by the Funding Agent, the amount of the Loans of the
assigning Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall



68









 







not be less than $1,000,000 (or, if less, the entire remaining amount of such Lender’s Loans), (ii)
the parties to each such assignment shall (A) electronically execute and deliver to the
Administrative Agent an Assignment and Acceptance via an electronic settlement system selected by
the Administrative Agent or (B) if no such system shall then be specified by the Administrative
Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, in
either case, together with a processing and recordation fee of $3,500 (except with respect to
assignments occurring on the A&R Effective Date, in respect of which no recordation fee shall
apply), and (iii) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire and all applicable tax forms. Upon acceptance and recording
pursuant to paragraph (e) of this Section, from and after the effective date specified in each
Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (B) the assigning Lender thereunder (or the Funding Agent, as
applicable) shall, to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s (or the Funding Agent’s,
as applicable) rights and obligations under this Agreement, such Lender (or the Funding Agent, as
applicable) shall cease to be a party hereto but shall continue to be entitled to the benefits of
Section 2.13, 2.15, 2.19 and 9.05, as well as to any fees accrued for its account and not yet
paid).



     (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
(or the Funding Agent, as applicable) and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such assigning Lender (or the
Funding Agent, as applicable) warrants that it is the legal and beneficial owner of the interest
being assigned thereby free and clear of any adverse claim and that the outstanding balances of its
Loans without giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in clause (i) above, such
assigning Lender (or the Funding Agent, as applicable) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of the Credit Parties
or the performance or observance by the Credit Parties of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred to in Section 3.04
or delivered pursuant to Section 5.03, the Collateral Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender (or the
assigning Funding Agent, as applicable) and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee agrees to be bound by the terms of the Collateral
Documents and the Intercreditor Agreement; (vii) such assignee appoints and authorizes the
Administrative Agent and the Collateral Agent to take such



69









 







action as agent on its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent and the Collateral Agent, respectively, by
the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and
(viii) such assignee agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement and the other Loan Documents are required to be performed by
it as a Lender.



     (d) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at its offices in Birmingham, Alabama, a copy of each Assignment and Acceptance delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, the Funding Agent as holder thereof (in
its capacity as Funding Agent and not in a lending capacity) and each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent
manifest error, and the Borrowers, the Administrative Agent, the Collateral Agent, the Funding
Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by any Borrower, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable prior notice.



     (e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed
by an assigning Lender (or by the Funding Agent in respect of Loans held by it in its capacity as
such, as applicable) and an assignee, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section, if applicable, and any applicable tax forms, the
Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph.



     (f) Each Lender may without the consent of any Borrower or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities shall be entitled
to the benefit of the cost protection provisions contained in Section 2.13, 2.15 and 2.19 to the
same extent as if they were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and (iv) the Borrowers, the
Administrative Agent, the Collateral Agent and the Lenders shall continue to deal solely and
directly with, and be entitled to rely solely upon the statements and actions of, such Lender in
connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of any Borrower relating to the Loans and the
other Obligations and to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing any fees payable to such
Participant hereunder or the amount of principal of or the rate at which interest is payable on the
Loans of such Participant, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans of such Participant, increasing or extending the



70









 







Commitments of such Participant or releasing any Credit Party or all or substantially all the
Collateral). A statement from a Lender that it is giving its consent on behalf of its participants
shall be sufficient, and none of the Borrowers, the Administrative Agent or the other Lenders shall
be required to investigate or obtain or confirm the consent or agreement of any participant.



     (g) Any Lender (or the Funding Agent, if applicable) or participant may, in connection with
any assignment or participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any information
relating to the Borrowers furnished to such Person by or on behalf of any Borrower; provided that,
prior to any such disclosure of information, each such assignee or participant or proposed assignee
or participant shall execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of such information on terms no less
restrictive than those applicable to the Lenders pursuant to Section 9.16. Each participant shall,
by acquiring its participation hereunder, be deemed to have agreed that its agreement to so
preserve the confidentiality of such information shall be for the benefit of, and may be enforced
by, the Borrowers.



     (h) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.



     (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrowers, the option
to provide to any Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof; provided further that nothing herein
shall make the SPC a “Lender” for the purposes of this Agreement, obligate the Borrowers or the
Administrative Agent to deal with such SPC directly, or obligate the Borrowers in any manner to any
greater extent than they were obligated to the Granting Lender (including with respect to Section
2.13, 2.15 and 2.19). The Borrowers and the Administrative Agent shall be entitled to deal solely
with, and obtain good discharge from, the Granting Lender and shall not be required to investigate
or otherwise seek the consent or approval of any SPC. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation



71









 







proceedings under the laws of the United States of America or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section, any SPC may (i) with notice to,
but without the prior written consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in any Loans to the
Granting Lender or to any financial institutions (consented to by the Borrowers and the
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC.



     (j) No Borrower shall assign or delegate any of its rights or duties hereunder without the
prior written consent of the Administrative Agent and each Lender, and any attempted assignment
without such consent shall be null and void.



     SECTION 9.05. Expenses; Indemnity.



     (a) The Borrowers agree to pay all out-of-pocket expenses incurred by the Agents and the
Lenders in connection with the syndication of the credit facilities provided for herein and the
preparation and negotiation of this Agreement and the other Loan Documents, or in connection with
administration of this Agreement and the other Loan Documents, or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) including without limitation the
fees, costs and expenses of Kirkland & Ellis LLP and Smith, Gambrell & Russell, LLP, or incurred by
any agent or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, the Original Second Lien Credit Agreement and the other Loan
Documents or the Loans made hereunder, including the reasonable fees, charges and disbursements of
any legal counsel for any of the Administrative Agent, the Collateral Agent or any Lender.



     (b) The Borrowers agree to indemnify the Agents, each Lender and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the Transactions and the
other transactions contemplated thereby, (ii) the use of the proceeds of the Loans, (iii) any
claim, litigation, investigation or proceeding arising out of any of the foregoing, whether or not
any Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property currently or formerly owned or operated by any Loan Party or any offsite
location to which wastes were sent for disposal, or any Environmental Liability related in any way
to any Credit Party or their respective operations; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.



72









 





     (c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the
Administrative Agent, the Collateral Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, Collateral Agent or Funding Agent, as
applicable such Lender’s pro rata share (determined, in the manner provided below, as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Administrative Agent, the
Collateral Agent or Funding Agent in its capacity as such. For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the sum of the outstanding Loans at the
time.



     (d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.



     (e) The provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral
Agent or any Lender. All amounts due under this Section shall be payable on written demand
therefor.



     SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender and each of its Affiliates is hereby authorized at any time and from time to time,
except to the extent prohibited by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against
any of and all the obligations of any Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or such other Loan Document and although such obligations may
be unmatured. The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.08. Waivers; Amendment.



     (a) No failure or delay of any Agent or any Lender in exercising any power or right hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of



73









 







steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of any Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or any other
Loan Document or consent to any departure by any Borrower or any other Credit Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any Borrower in any case shall entitle any Borrower to any
other or further notice or demand in similar or other circumstances.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required
Lenders; provided, however, that no such agreement shall (i) decrease the principal amount of or
prepayment premium on, or extend the maturity of or any scheduled principal payment date or date
for the payment of any interest on any Loan, or waive or excuse any such interest payment,
principal payment or prepayment premium or any part thereof, or decrease the rate of interest on
any Loan, or permit the optional repayment of Loans on or prior to August 30, 2010, without the
prior written consent of each Lender affected thereby, (ii) increase or extend the Commitment or
decrease or extend the date for payment of any fees of any Lender without the prior written consent
of such Lender, (iii) amend or modify the pro rata requirements of Section 2.16, the provisions of
Section 9.04(j) or the provisions of this Section without the prior written consent of each Lender,
(iv) modify the provisions of Section 9.04(i) without the written consent of any SPC affected
thereby, (v) release any Credit Party from the Guaranties under this Agreement without the prior
written consent of each Lender, (vi) release all or substantially all of the Collateral from the
Lien under the Collateral Documents without the prior written consent of each Lender or (vii)
reduce the percentage contained in the definition of the term “Required Lenders” without the prior
written consent of each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the determination of
the Required Lenders on substantially the same basis as the Commitments on the date hereof);
provided further that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Collateral Agent hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent or the Collateral Agent, as
applicable.



     SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the “Interest
Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Interest
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Interest Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Interest Charges payable to such Lender in respect of other Loans or participations or periods
shall be increased (but not above the Maximum Rate therefor) until



74









 







such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the
date of repayment, shall have been received by such Lender.



     SECTION 9.10. Entire Agreement. This Agreement, the Engagement Letter and the other Loan
Documents constitute the entire contract between the parties relative to the subject matter hereof.
Any other previous agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any Person (other than the
parties hereto and thereto, their respective successors and assigns permitted hereunder and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents and the Lenders)
any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.



     SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.



     SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.



     SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



75









 





     SECTION 9.15. Jurisdiction; Consent to Service of Process.



     (a) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that an Agent or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against the Borrowers or their properties in the courts of any jurisdiction.



     (b) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.



     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     SECTION 9.16. Confidentiality. Each of the Agents and each of the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ officers, directors, employees and agents, including accountants,
legal counsel and other advisors with a reasonable need to know such Information (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority or quasi-regulatory authority (such as the National
Association of Insurance Commissioners), the party disclosing such Information shall use its
commercially reasonable efforts to have such Information communicated in a confidential manner, (c)
to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) in connection with the exercise of any remedies hereunder or under the other Loan
Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or
thereunder, (e) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any actual or prospective assignee of or participant in any of its rights or
obligations under this Agreement and the other Loan Documents, (ii) to any pledgee referred to in
Section 9.04(h) or (iii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to any Credit Party or any of their respective obligations, (f)
with the prior written consent of the respective Borrower or (g) to the extent such Information
becomes publicly available other than as a result of a breach of this Section. For the purposes of
this Section, “Information” shall mean



76









 







all information received from any Borrower and related to any Borrower or its business, other than
any such information that was available to the Administrative Agent, the Collateral Agent or any
Lender on a non-confidential basis prior to its disclosure by any Borrower. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care (which
shall be at least reasonable care) to maintain the confidentiality of such Information as such
Person would accord its own confidential information.



     SECTION 9.17. USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of
the USA Patriot Act, it is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of such Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower
in accordance with the USA Patriot Act.



     SECTION 9.18. Intercreditor Agreement. In the event of any inconsistency between the terms of
this Agreement with respect to the rights and remedies of the Collateral Agent and the terms of the
Amended and Restated Intercreditor Agreement dated as of November 22, 2004, between the Collateral
Agent, on behalf of the Secured Parties, and the First Lien Agent as amended, restated,
supplemented and/or otherwise modified from time to time including on the date hereof, (the
“Intercreditor Agreement”), the Intercreditor Agreement shall control at any time the Intercreditor
Agreement is in effect. Each Credit Party hereby acknowledges the terms and conditions of the
Intercreditor Agreement (with the respect to the Second Amendment to Amended and Restated
Intercreditor Agreement entered into by the First Lien Agent and the Agents on the date hereof).



ARTICLE X




Cross-Guaranty




     SECTION 10.01. Cross-Guaranty. Each Credit Party hereby agrees that such Credit Party is
jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the
Administrative Agent, the Collateral Agent and the Lenders and their respective successors and
assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and
performance of, all Obligations owed or hereafter owing to the Administrative Agent, the Collateral
Agent and the Lenders by each other Credit Party. Each Credit Party agrees that its guaranty
obligation hereunder is a continuing guaranty of payment and performance and not of collection,
that its obligations under this Article X shall not be discharged until payment and performance, in
full, of the Obligations has occurred, and that its obligations under this Article X shall be
absolute and unconditional, irrespective of, and unaffected by:



     (a) the genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement, any other Loan Document or any other agreement, document or instrument
to which any Credit Party is or may become a party;



77









 





     (b) the absence of any action to enforce this Agreement (including this Article X) or any
other Loan Document or the waiver or consent by the Administrative Agent, the Collateral Agent and
the Lenders with respect to any of the provisions thereof;



     (c) the existence, value or condition of, or failure to perfect its Lien against, any security
for the Obligations or any action, or the absence of any action, by the Administrative Agent, the
Collateral Agent and the Lenders in respect thereof (including the release of any such security);



     (d) the insolvency of any Credit Party; or



     (e) any other action or circumstances that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.



     Each Credit Party shall be regarded, and shall be in the same position, as principal debtor
with respect to the Obligations guaranteed hereunder.



     SECTION 10.02. Waivers by Credit Parties. Each Credit Party expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in equity, or
otherwise, to compel the Administrative Agent, the Collateral Agent or the Lenders to marshal
assets or to proceed in respect of the Obligations guaranteed hereunder against any other Credit
Party, any other party or against any security for the payment and performance of the Obligations
before proceeding against, or as a condition to proceeding against, such Credit Party. It is agreed
among each Credit Party, the Administrative Agent, the Collateral Agent and the Lenders that the
foregoing waivers are of the essence of the transaction contemplated by this Agreement and the
other Loan Documents and that, but for the provisions of this Article X and such waivers, the
Administrative Agent, the Collateral Agent and the Lenders would decline to enter into this
Agreement.



     SECTION 10.03. Benefit of Guaranty. Each Credit Party agrees that the provisions of this
Article X are for the benefit of the Administrative Agent, the Collateral Agent and the Lenders and
their respective successors, transferees, endorsees and assigns, and nothing herein contained shall
impair, as between any other Credit Party and the Administrative Agent, the Collateral Agent or the
Lenders, the obligations of such other Credit Party under the Loan Documents.



     SECTION 10.04. Waiver of Subrogation, Etc. Notwithstanding anything to the contrary in this
Agreement or in any other Loan Document, and except as set forth in Section 10.07, each Credit
Party hereby expressly and irrevocably waives any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all
defenses available to a surety, guarantor or accommodation co-obligor. Each Credit Party
acknowledges and agrees that this waiver is intended to benefit each Agent and each of the Lenders
and shall not limit or otherwise affect such Credit Party’s liability hereunder or the
enforceability of this Article X, and that the Administrative Agent, the Collateral Agent, the
Funding Agent, the Lenders and their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 10.04.



78









 





     SECTION 10.05. Election of Remedies. If the Administrative Agent, the Collateral Agent, the
Funding Agent or any Lender may, under applicable law, proceed to realize its benefits under any of
the Loan Documents giving the Administrative Agent, the Collateral Agent, the Funding Agent or such
Lender a Lien upon any Collateral, whether owned by any Credit Party or by any other Person, either
by judicial foreclosure or by non judicial sale or enforcement, the Administrative Agent, the
Collateral Agent, the Funding Agent or any Lender may, at its sole option, determine which of its
remedies or rights it may pursue without affecting any of its rights and remedies under this
Article X. If, in the exercise of any of its rights and remedies, the Administrative Agent, the
Collateral Agent, the Funding Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Credit Party or any other Person,
whether because of any applicable laws pertaining to “election of remedies” or the like, each
Credit Party hereby consents to such action by the Administrative Agent, the Collateral Agent, the
Funding Agent or such Lender and waives any claim based upon such action, even if such action by
the Administrative Agent, the Collateral Agent, the Funding Agent or such Lender shall result in a
full or partial loss of any rights of subrogation that each Credit Party might otherwise have had
but for such action by the Administrative Agent, the Collateral Agent, the Funding Agent or such
Lender. Any election of remedies that results in the denial or impairment of the right of the
Administrative Agent, the Collateral Agent or any Lender to seek a deficiency judgment against any
Credit Parties shall not impair any other Credit Party’s obligation to pay the full amount of the
Obligations. In the event the Administrative Agent, the Collateral Agent, the Funding Agent or any
Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or
the Loan Documents, the Administrative Agent, the Collateral Agent or such Lender may bid all or
less than the amount of the Obligations and the amount of such bid need not be paid by the
Administrative Agent, the Collateral Agent, the Funding Agent or such Lender but shall be credited
against the Obligations. The amount of the successful bid at any such sale, whether the
Administrative Agent, the Collateral Agent, the Lender or any other party is the successful bidder,
shall be conclusively deemed to be the fair market value of the Collateral and the difference
between such bid amount and the remaining balance of the Obligations shall be conclusively deemed
to be the amount of the Obligations guaranteed under this Article X, notwithstanding that any
present or future law or court decision or ruling may have the effect of reducing the amount of any
deficiency claim to which the Administrative Agent, the Collateral Agent, the Funding Agent or any
Lender might otherwise be entitled but for such bidding at any such sale.



     SECTION 10.06. Limitation. Notwithstanding any provision herein contained to the contrary,
each Credit Party’s liability under this Article X (which liability is in any event in addition to
amounts for which such Credit Party is primarily liable under Article II) shall be limited to an
amount not to exceed as of any date of determination the greater of:



     (a) the net amount of all Loans advanced to any other Credit Party under this Agreement and
then re-loaned or otherwise transferred to, or for the benefit of, such Credit Party; and



     (b) the amount that could be claimed by the Administrative Agent, the Collateral Agent and the
Lenders from such Credit Party under this Article X without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or



79









 







similar statute or common law after taking into account, among other things, such Credit Party’s
right of contribution and indemnification from each other Credit Party under Section 10.07.



     SECTION 10.07. Contribution with Respect to Guaranty Obligations.



     (a) To the extent that any Credit Party shall make a payment under this Article X of all or
any of the Obligations (other than Loans made to that Credit Party for which it is primarily
liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then
previously or concurrently made by any other Credit Party, exceeds the amount that such Credit
Party would otherwise have paid if each Credit Party had paid the aggregate Obligations satisfied
by such Guarantor Payment in the same proportion that such Credit Party’s “Allocable Amount” (as
defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Credit Parties as determined immediately prior to the making of
such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and
termination of the Commitments, such Credit Party shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Credit Party for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment.



     (b) As of any date of determination, the “Allocable Amount” of any Credit Party shall be equal
to the maximum amount of the claim that could then be recovered from such Credit Party under this
Article X without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.



     (c) This Section 10.07 is intended only to define the relative rights of the Credit Parties
and nothing set forth in this Section 10.07 is intended to or shall impair the obligations of the
Credit Parties, jointly and severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Agreement, including Section 10.01. Nothing contained
in this Section 10.07 shall limit the liability of any Credit Party to pay the Loans made directly
or indirectly to that Credit Party and accrued interest, fees and expenses with respect thereto for
which such Credit Party shall be primarily liable.



     (d) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Credit Party to which such contribution and
indemnification is owing.



     (e) The rights of the indemnifying Credit Parties against other Credit Parties under this
Section 10.07 shall be exercisable upon the full and indefeasible payment of the Obligations and
the termination of the Commitments.



     SECTION 10.08. Liability Cumulative. The liability of the Credit Parties under this Article X
is in addition to and shall be cumulative with all liabilities of each Credit Party to the
Administrative Agent, the Collateral Agent and the Lenders under this Agreement and the other Loan
Documents to which such Credit Party is a party or in respect of any Obligations or obligation of
the other Credit Party, without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the contrary.



80









 





     SECTION 10.09. Guarantee Unconditional. (i) The obligations of each Credit Party under this
Article X are continuing, unconditional and absolute and, without limiting the generality of the
foregoing, will not be released, discharged, diminished, limited or otherwise affected by (and each
Credit Party hereby consents to or waives, as applicable, to the fullest extent permitted by
applicable law): (a) any extension, other indulgence, renewal, settlement, discharge, compromise,
waiver, subordination or release in respect of any Obligation, security, Person or otherwise; (b)
any modification or amendment of or supplement to the Obligations, including any increase or
decrease in the principal, the rates of interest or other amounts payable thereunder; (c) any
release, non perfection or invalidity of any direct or indirect security for any Obligation; (d)
any change in the existence, structure, constitution, name, objects, powers, business, control or
ownership of any Borrower or any other Person, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Borrower or any other person or its assets; (e) the
existence of any claim, setoff or other rights which any Credit Party may have at any time against
any Borrower, the Administrative Agent, the Collateral Agent, the Funding Agent, any Lender, or any
other Person, whether in connection herewith or any unrelated transactions; (f) any invalidity,
illegality or unenforceability relating to or against any Borrower or any provision of applicable
law or regulation purporting to prohibit the payment by any Borrower of the principal or interest
under the Obligations; (g) any limitation, postponement, prohibition, subordination or other
restriction on the rights of the Administrative Agent, the Collateral Agent, the Funding Agent, or
any Lender to payment of the Obligations; (h) any release, substitution or addition of any
cosigner, endorser or other guarantor of the Obligations; (i) any defense arising by reason of any
failure of the Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to make
any presentment, demand for performance, notice of non performance, protest, and any other notice,
including notice of all of the following: acceptance of this Article X, partial payment or non
payment of all or any part of the Obligations and the existence, creation, or incurring of new or
additional Obligations; (j) any defense arising by reason of any failure of the Administrative
Agent, the Collateral Agent, the Funding Agent, or any Lender to proceed against any Borrower or
any other Person, to proceed against, apply or exhaust any security held from any Borrower or any
other Person for the Obligations, to proceed against, apply or exhaust any security held from any
Credit Party or any other Person for this Article X or to pursue any other remedy in the power of
the Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender whatsoever; (k)
any law which provides that the obligation of a guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal obligation or which reduces a guarantor’s
obligation in proportion to the principal obligation; (l) any defense arising by reason of any
incapacity, lack of authority, or other defense of any Borrower or any other Person, or by reason
of any limitation, postponement, prohibition on the Administrative Agent’s, the Collateral Agent’s,
the Funding Agent’s, ’s or any Lender’s right to payment of the Obligations or any part thereof, or
by reason of the cessation from any cause whatsoever of the liability of any Borrower or any other
Person with respect to all or any part of the Obligations, or by reason of any act or omission of
the Administrative Agent, the Collateral Agent, the Funding Agent, any Lender or others which
directly or indirectly results in the discharge or release of any Borrower or any other Person or
all or any part of the Obligations or any security or guarantee therefor, whether by contract,
operation of law or otherwise; (m) any defense arising by reason of any failure by the
Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to obtain, perfect or
maintain a perfected or prior (or any) security interest in or lien or encumbrance upon any



81









 







property of any Borrower or any other Person, or by reason of any interest of the Administrative
Agent, the Collateral Agent, the Funding Agent, or any Lender in any property, whether as owner
thereof or the holder of a security interest therein or lien or encumbrance thereon, being
invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of
any impairment by the Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender
of any right to recourse or collateral; (n) any defense arising by reason of the failure of the
Administrative Agent, the Collateral Agent, the Funding Agent, or any Lender to marshall any
assets; (o) any defense based upon any failure of the Administrative Agent, the Collateral Agent,
the Funding Agent, or any Lender to give to any Borrower or any Credit Party notice of any sale or
other disposition of any property securing any or all of the Obligations or any guarantee thereof,
or any defect in any notice that may be given in connection with any sale or other disposition of
any such property, or any failure of the Administrative Agent, the Collateral Agent, the Funding
Agent, or any Lender to comply with any provision of applicable law in enforcing any security
interest in or lien upon any such property, including any failure by the Administrative Agent, the
Collateral Agent, the Funding Agent, to dispose of any such property in a commercially reasonable
manner; (p) any dealing whatsoever with any Borrower or other Person or any security, whether
negligently or not, or any failure to do so; (q) any defense based upon or arising out of any
bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation
or dissolution proceeding commenced by or against any Borrower or any other Person, including any
discharge of, or bar against collecting, any of the Obligations, in or as a result of any such
proceeding; or (r) any other act or omission to act or delay of any kind by any Borrower, the
Administrative Agent, the Collateral Agent, the Funding Agent, any Lender, or any other Person or
any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but
for the provisions of this Article X, constitute a legal or equitable discharge, limitation or
reduction of any Credit Party’s obligations hereunder (other than the payment in full of all of the
Obligations). The foregoing provisions apply (and the foregoing waivers will be effective) even if
the effect of any action (or failure to take action) by the Administrative Agent, the Collateral
Agent, the Funding Agent, or any Lender is to destroy or diminish any Credit Party’s subrogation
rights, each Credit Party’s right to proceed against any Borrower for reimbursement, each Credit
Party’s right to recover contribution from any other guarantor or any other right or remedy.



     (ii) At such time (if any) when the Australian Obligors are fully released from its
obligations and liabilities as guarantors and grantors of Liens pursuant to the terms and
conditions of the First Lien Facilities, the Administrative Agent and the Collateral Agent shall,
promptly upon the written request of the Borrowers and at their sole expense, release the
Australian Obligors from its obligations and liabilities as Guarantors hereunder and as
“Guarantors” and “Grantors” under (and as defined in) the Security Agreement and the other
Collateral Documents to which the Australian Obligors are a party, and the Administrative Agent and
the Collateral Agent shall execute and deliver to the Borrowers all such other releases or
documents reasonable necessary or desirable for the release of such obligations, liabilities and
Liens.



     SECTION 10.10. Foreign Currency Obligations. Each Credit Party will make payment under this
Article X relative to each Obligation in the currency (the “Original Currency”) in which the
relevant Borrower is required to pay such Obligation. If any Credit Party makes payment relative to
any Obligation in a currency (the “Other Currency”) other than



82









 







the Original Currency (whether voluntarily or pursuant to an order or judgment of a court or
tribunal of any jurisdiction), such payment will constitute a discharge of the liability of any
Credit Party hereunder in respect of such Obligation only to the extent of the amount of the
Original Currency which the Administrative Agent is able to purchase in New York City with the
amount it receives on the date of receipt. If the amount of the Original Currency which the
Administrative Agent is able to purchase is less than the amount of such currency originally due to
it in respect to the relevant Obligation, each Credit Party will indemnify and save the
Administrative Agent and the Lenders harmless from and against any loss or damage arising as a
result of such deficiency. This indemnity will constitute an obligation separate and independent
from the other obligations contained in this Article X, will give rise to a separate and
independent cause of action, will apply irrespective of any indulgence granted by the
Administrative Agent or any Lender and will continue in full force and effect notwithstanding any
judgment or order in respect of any amount due hereunder or under any judgment or order.



     SECTION 10.11. Section 956 of the IRC. If the Obligations incurred hereunder by any Guarantor
that is a Foreign Subsidiary (other than the Australian Obligors or any Subsidiary of any
Australian Obligor, except if the Australian Obligors cease to provide credit support in respect of
the First Lien Facilities at which point this Section 10.11 shall apply with respect to the
Australian Obligors) would result in adverse tax liabilities under Section 956 of the IRC (or any
similar statute) for Borrowers or the other Credit Parties (as demonstrated by Borrowers in a
manner reasonably satisfactory to Administrative Agent), at Borrowers’ request, the Administrative
Agent shall take one or more of the following actions, as requested, (a) release the Collateral
Agent’s Liens on such Foreign Subsidiary’s assets, (b) reduce the pledge of such Foreign
Subsidiary’s stock to 65% of its voting Stock, (c) release such Foreign Subsidiary from its
Guaranty of the Obligations and (d) make such other amendments or modifications to this Agreement
as are mutually agreed upon by Required Lenders and the Borrowers to reflect the foregoing
(collectively, a “956 Discharge”); provided that after giving affect to such 956 Discharge (x) no
Event of Default shall have occurred, (y) the average daily Borrowing Availability (as defined in
the First Lien Credit Agreement) shall have been not be less than $15,000,000 (with all trade
payables being paid current other than those being contested in the ordinary course of business)
during the 30-day period immediately prior to such 956 Discharge, and (z) Borrowers shall deliver
to the Administrative Agent projections demonstrating that the average daily Borrowing Availability
shall not be less than $15,000,000 (with all trade payables being paid currently) for the 30-day
period after the date of such 956 Discharge.



     SECTION 10.12. Consent, Confirmation, Approval and Ratification. Each Credit Party hereby
consents to and approves of each Credit Party’s entering into this Agreement and performing its
obligations thereunder, and hereby acknowledges, confirms and agrees that it has reviewed and
negotiated the terms and conditions of this Agreement and each of the other Loan Documents, and has
received advice of counsel in connection therewith. Each Credit Party hereby acknowledges and
agrees that (i) each of the Loan Documents to which each is a party remain in full force and effect
in accordance with their respective terms and conditions (as amended and restated on the A&R
Effective Date), and (ii) this Agreement and the other Loan Documents, whether executed and
delivered in connection herewith or otherwise, do not constitute a novation, termination or accord
and satisfaction of the Obligations as in effect prior to the A&R Effective Date and which remain
outstanding as of the A&R Effective Date, as modified by this Agreement and the other Loan
Documents. Furthermore, each Credit Party



83









 







hereby confirms, ratifies and reaffirms each of their respective guarantees, pledges, grants of
security interests and other Obligations, as applicable, under and subject to the terms of each of
the Loan Documents to which it is a party, and agrees that, notwithstanding the entering into of
this Agreement on the A&R Effective Date, and/or any of the transactions contemplated hereby, such
guarantees, pledges, grants of security interests and other Obligations, and the terms of each of
the Loan Documents to which it is a party, are not impaired or affected in any manner whatsoever
and shall continue to be in full force and effect and shall continue to secure the Obligations in
accordance with the terms and conditions of each such Loan Document, in each case as such
Obligations have been amended, modified, reaffirmed or increased as a result of the entering into
of this Agreement on the A&R Effective Date or any of the transactions contemplated hereby.



84









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	THERMADYNE INDUSTRIES, INC.,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	THERMAL DYNAMICS CORPORATION,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	VICTOR EQUIPMENT COMPANY,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	C & G MERGER CO.

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 


2009 Amended and Restated Second Lien Credit Agreement




S-1









 








	 	 	 	 	 
	 	STOODY COMPANY,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	THERMADYNE INTERNATIONAL CORP.,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	THERMADYNE HOLDINGS CORPORATION,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 



2009 Amended and Restated Second Lien Credit Agreement




S-2









 








	 	 	 	 	 
	 	C&G SYSTEMS HOLDING, INC.,

 	 
	 	By  	/s/ Steven A Schumm
 	 
	 	 	Name:  	STEVEN A SCHUMM 	 
	 	 	Title:  	EVP-CFO 	 
	 
	 	CIGWELD PTY LTD,

 	 
	 	By  	/s/ Neil Fitzpatrick
 	 
	 	 	Name:  	NEIL FITZPATRICK 	 
	 	 	Title:  	FINANCE MANAGER APAC 	 
	 
	 	THERMADYNE AUSTRALIA PTY LTD,

 	 
	 	By  	/s/ Neil Fitzpatrick
 	 
	 	 	Name:  	NEIL FITZPATRICK 	 
	 	 	Title:  	FINANCE MANAGER APAC 	 
	 


2009 Amended and  Restated Second Lien Credit Agreement




S-3









 








	 	 	 	 	 
	 	REGIONS BANK, individually and as Administrative 
Agent, Collateral Agent and Funding Agent.

 	 
	 	By  	/s/ Eric J. Knoll
 	 
	 	Name:  	ERIC J. KNOLL 	 
	 	Title:  	VICE PRESIDENT 	 
	 


2009 Amended and Restated Second Lien Credit Agreement




S-4









 








	 	 	 	 	 
	 	NORTHWOODS CAPITAL IV, LIMITED

 	 
	 	By  	/s/ Bruce Martin
 	 
	 	Name:  	BRUCE MARTIN 	 
	 	Title:  	MANAGING DIRECTOR 	 
	 


2009 Amended and Restated Second Lien Credit Agreement




S-5









 








	 	 	 	 	 
	 	NORTHWOODS CAPITAL V, LIMITED

 	 
	 	By  	/s/ Bruce Martin
 	 
	 	Name:  	BRUCE MARTIN 	 
	 	Title:  	MANAGING DIRECTOR 	 
	 


2009 Amended and Restated Second Lien Credit Agreement




S-6









 








	 	 	 	 	 
	 	NORTHWOODS CAPITAL VI, LIMITED

 	 
	 	By  	/s/ Bruce Martin
 	 
	 	Name:  	BRUCE MARTIN 	 
	 	Title:  	MANAGING DIRECTOR 	 
	 


2009 Amended and Restated Second Lien Credit Agreement




S-7









 








	 	 	 	 	 
	 	NORTHWOODS CAPITAL VII, LIMITED

 	 
	 	By  	/s/ Bruce Martin
 	 
	 	Name:  	BRUCE MARTIN 	 
	 	Title:  	MANAGING DIRECTOR 	 
	 


2009 Amended and Restated Second Lien Credit Agreement





S-8