Exhibit 10.1





Exhibit 10.1




THIRD AMENDMENT TO

THIRD AMENDED AND RESTATED CREDIT AGREEMENT




This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), dated as of February 23, 2010, by and among THERMADYNE INDUSTRIES, INC., a
Delaware corporation (“Industries”), THERMAL DYNAMICS CORPORATION, a Delaware corporation
(“Dynamics”), VICTOR EQUIPMENT COMPANY, a Delaware corporation (“Victor”), C & G
MERGER CO., an Illinois corporation (“C & G”), STOODY COMPANY, a Delaware corporation
(“Stoody”), THERMADYNE INTERNATIONAL CORP., a Delaware corporation
(“International”, and collectively with Stoody, C & G, Victor, Dynamics and Industries, the
“Borrowers”), the other persons designated as Credit Parties on the signature pages hereof,
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Agent”) and the Persons
signatory hereto as Lenders. Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings ascribed to them in Annex A to the Credit Agreement (as
hereinafter defined).



RECITALS




WHEREAS, the Borrowers, the other Credit Parties, Agent and Lenders have entered into that
certain Third Amended and Restated Credit Agreement dated as of June 29, 2007 (as further amended,
supplemented, restated or otherwise modified from time to time, the “Credit Agreement”);



WHEREAS, the Borrowers and the other Credit Parties have requested that Agent and Lenders
amend certain provisions of the Credit Agreement; and



WHEREAS, the Agent and Lenders have agreed to amend the Credit Agreement as set forth herein.



NOW THEREFORE, in consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:



1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent
set forth in Section 3 hereof, the parties hereto hereby agree to amend the Credit Agreement as
follows:




(a) Subsection 6.2(i) of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:




“(i) any Borrower may (x) make investments in, or create, any wholly-owned
Foreign Subsidiary and (y) make investments in other foreign Persons; provided that:




(1) the aggregate amount of such foreign investments funded after the Third
Amendment Effective Date permitted by clause (x) and clause
(y) of
this subsection 6.2(i) outstanding from time to time, exclusive of
investments permitted by subsection 6.2(k), (the “Outstanding Foreign
Investment Amount”) shall not exceed $10,000,000; provided that when calculating the Outstanding
Foreign Investment Amount at any point in time, the amount of such investments shall
be reduced by the total of the amounts repatriated on and after the after the Third
Amendment Effective Date to any Borrower on account of such investments made in
wholly-owned Foreign Subsidiaries, even if such reduction reduces the Outstanding
Foreign Investment Amount to less than $0;


 


 









 






(2) the aggregate amount of such foreign investments permitted by clause
(y) of this subsection 6.2(i) funded after the Third Amendment Effective
Date shall not exceed $3,000,000;




(3) if, at the time of any such proposed investment, (A) an Event of Default
has occurred and is continuing or Borrowing Availability is less than $10,000,000
and (B) the Outstanding Foreign Investment Amount exceeds $5,000,000 or would exceed
$5,000,000 after giving effect to such proposed investment, such proposed investment
shall be subject to the prior approval of Agent acting in its sole discretion;




(4) 65% of the stock of any such direct Foreign Subsidiary (except in that in
the case of the Australian Collateral Party, 100% of such stock) shall be pledged to
secure the Obligations; and




(5) Borrowers shall, concurrently with the delivery of financial statements
for each Fiscal Month, deliver to Agent a summary of foreign investments in Foreign
Subsidiaries and other Persons, net of repatriations;”




(b) Annex A to the Credit Agreement is hereby amended by inserting the following
definitions or, if contained therein, amending and restating such definitions to read in
their entirety as follows:




““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.”




““Fixed Charges” means, with respect to any Person for any fiscal
period:




(a) the aggregate of all Interest Expense paid or accrued (without duplication)
during such period (less any interest income received in cash during such period),
plus




(b) scheduled payments of principal with respect to Indebtedness during such
period, including amortization of the ABL Borrowing Base in the amount of the
Amortization Amount per calendar quarter in accordance with clause (i) of the
definition of Borrowing Base, plus


 


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(c) Capital Expenditures during such period (other than that portion of such
Capital Expenditures:




(i) financed by lenders other than the Lenders hereunder; and




(ii) equal to the lesser of




(x) the amount of Capital Expenditures from the Third Amendment
Effective Date through the first anniversary thereof (the
“Measuring Period”) and




(y) the sum of (1) additional principal of Second Lien
Obligations which were incurred in August 2009 and spent on Capital
Expenditures during the Measuring Period, up to $11,000,000 and (2)
an amount equal to the proceeds of the Revolving Loans derived from
the Incremental M&E Availability during the period of January 1, 2010
through March 31, 2010), plus




(d) income taxes paid or currently payable in cash with respect to such fiscal
period, which shall not be less than zero.”




““Outstanding Foreign Investment Amount” has the meaning ascribed to it
in subsection 6.2(i) of the Credit Agreement.”




““Third
Amendment” means that certain Third Amendment to Third Amended
and Restated Credit Agreement entered into as of February 23, 2010 among the
Borrowers, the other Credit Parties, the Agent and the Lenders signatory thereto.”




““Third Amendment Effective Date” means the date on which the Third
Amendment becomes effective.”




(c) Annex G to the Credit Agreement is hereby amended by amending and restating
subsection (a) (ii) contained therein in its entirety to read as follows:




“(ii) Minimum Fixed Charge Coverage Ratio. Holdings and its
Subsidiaries shall have on a consolidated basis at the end of the Fiscal Quarters
ending (A) on December 31, 2009, a Fixed Charge Coverage Ratio for the 3-month
period then ended of not less than 1.00, (B) on March 31, 2010, a Fixed Charge
Coverage Ratio for the 6-month period then ended of not less than 1.10; (C) on June
30, 2010, a Fixed Charge Coverage Ratio for the 9-month period then ended of not
less than 1.10; and (D) each Fiscal Quarter thereafter, a Fixed Charge Coverage
Ratio for the 12-month period then ended of not less than 1.10.”


 


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2. Representations and Warranties of Credit Parties. The Credit Parties represent and
warrant that:




(a) the execution, delivery and performance by the Credit Parties of this Amendment have
been duly authorized by all necessary corporate action required on its part and this
Amendment is a legal, valid and binding obligation of the Credit Parties enforceable against
the Credit Parties in accordance with its terms except as the enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
and




(b) after giving effect to this Amendment, each of the representations and warranties
contained in the Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date.



3. Conditions To Effectiveness. This Amendment shall be effective upon the following (all
in form and substance satisfactory to Agent):




(a) execution and delivery of this Amendment by Agent, Requisite Lenders and Credit
Parties;




(b) execution and delivery of an amendment to the Second Lien Credit Agreement by each
of the parties thereto; and




(c) payment in full of all fees, costs and expenses, including the reasonable fees,
costs and expenses of counsel or other advisors for advice, assistance, or other
representation in connection with this Amendment, as provided in Section 11.3(a) of
the Credit Agreement.



4. Reference To And Effect Upon The Credit Agreement.




(a) The Credit Agreement and the other Loan Documents shall remain in full force and
effect, as amended hereby, and are hereby ratified and confirmed.




(b) The execution, delivery and effectiveness of this Amendment shall not (i) operate
as a waiver or otherwise prejudice any right, power or remedy that the Agent or the Lenders
may now have or may have in the future under or in connection with the Credit Agreement or
any other Loan Document or (ii) constitute a waiver of any provision of the Credit Agreement
or any Loan Document, except as specifically set forth herein. Upon the effectiveness of
this Amendment, each reference in the Credit Agreement to “this Agreement”, “herein”,
“hereof” and words of like import and each reference in the Credit Agreement and the Loan
Documents to the Credit Agreement shall mean the Credit Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Credit Agreement.


 


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5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.



6. Headings. Section headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other purposes.



7. Counterparts. This Amendment may be executed in any number of counterparts, each of
which when so executed shall be deemed an original, but all such counterparts shall constitute one
and the same instrument.



8. Reaffirmation of Guaranties. The Credit Parties signatory hereto hereby reaffirm their
Guaranties of the Obligations, taking into account the provisions of this Amendment.



[signature pages follow]



 


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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first written above.



	 	 	 	 	 
	 	LENDER:



GENERAL ELECTRIC CAPITAL

CORPORATION,

as Agent and Lender

 	 
	 	By:  	/s/ Jack Morrone
 	 
	 	 	Duly Authorized Signatory 	 


[Signature Page to Third Amendment to Third Amended and Restated Credit Agreement]




 


 









 





	 	 	 	 	 
	 	CREDIT PARTIES:



THERMADYNE INDUSTRIES, INC.

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	THERMAL DYNAMICS CORPORATION

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	VICTOR EQUIPMENT COMPANY

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

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	STOODY COMPANY

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	THERMADYNE INTERNATIONAL CORP.

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 



[Signature Page to Third Amendment to Third Amended and Restated Credit Agreement]




 


 









 





	 	 	 	 	 
	 	THERMADYNE HOLDINGS CORPORATION

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	C&G SYSTEMS HOLDING, INC.

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	THERMADYNE AUSTRALIA PTY LTD.

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	Director 	 
	 
	 	CIGWELD PTY LTD.

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	Director 	 
	 
	 	THERMADYNE WELDING PRODUCTS CANADA LIMITED

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 
	 
	 	THERMADYNE INDUSTRIES LIMITED

 	 
	 	By:  	/s/ Steven A. Schumm
 	 
	 	 	Name:  	Steven A. Schumm 	 
	 	 	Title:  	EVP  CFO & CAO 	 



[Signature Page to Third Amendment to Third Amended and Restated Credit Agreement]