**Exhibit4.11**

 

FIRST AMENDMENT TOAMENDED AND RESTATED CREDIT AGREEMENT

 

This FIRST AMENDMENT TOAMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”) is entered intoas of this 5th day of March, 2004, by and among THERMADYNEINDUSTRIES, INC., a Delaware corporation (“Industries”), THERMALDYNAMICS CORPORATION, a Delaware corporation (“Dynamics”), TWECOPRODUCTS, INC., a Delaware corporation (“Tweco”), VICTOR EQUIPMENTCOMPANY, a Delaware corporation (“Victor”), C & G SYSTEMS, INC., anIllinois corporation (“C & G”), STOODY COMPANY, a Delawarecorporation (“Stoody”), THERMAL ARC, INC., a Delaware corporation (“ThermalArc”), PROTIP CORPORATION, a Missouri corporation (“ProTip”),THERMADYNE INTERNATIONAL CORP., a Delaware corporation (“International”,and collectively with ProTip, Thermal Arc, Stoody, C & G, Victor, Tweco,Dynamics and Industries, the “Borrowers”), the other persons designatedas Credit Parties on the signature pages hereof, GENERAL ELECTRIC CAPITALCORPORATION, a Delaware corporation (“Agent”) and the Persons signatorythereto from time to time as Lenders. Unless otherwise specified herein, capitalized terms used in thisAmendment shall have the meanings ascribed to them in Annex A tothe Credit Agreement (as hereinafter defined).

 

RECITALS

 

WHEREAS, the Borrowers,the Credit Parties, Agent and Lenders have entered into that certain Amendedand Restated Credit Agreement dated as of February 5, 2004 (as furtheramended, supplemented, restated or otherwise modified from time to time, the “CreditAgreement” ); and

 

WHEREAS, the Borrowershave requested that Requisite Lenders amend certain provisions of the CreditAgreement.

 

NOW THEREFORE, inconsideration of the mutual execution hereof and other good and valuableconsideration, the parties hereto agree as follows:

 

1.                                       Amendment.

 

(a)  Section 6.3(a) of the CreditAgreement is hereby amended to (i) delete the word “and” immediately precedingthe phrase “(xi) Indebtedness” in the penultimate line thereof and in lieuthereof insert “,” and (ii) insert the following immediately preceding thefinal “.” of such section “and (xii) obligations of any Credit Party underany interest rate swap, cap or collar agreement or similar agreement orarrangement related to exposure to interest rates with respect to not more than$50 million principal amount of Indebtedness”.

 

(b)  The definition of “EBITDA” in Annex Ato the Credit Agreement is hereby amended and restated in its entirety to readas follows:

 

““EBITDA” means,with respect to any Person for any fiscal period, without duplication, anamount equal to (a) consolidated net income of such Person for such perioddetermined in accordance with GAAP, minus (b) the sum of (i) income taxcredits, (ii) interest income, (iii) gain from extraordinary items for such period,(iv) any aggregate net gain (but not

 

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any aggregate net loss)during such period arising from the sale, exchange or other disposition ofcapital assets by such Person (including any fixed assets, whether tangible orintangible, all inventory sold in conjunction with the disposition of fixedassets and all securities) and (v) any other non-cash gains that have beenadded in determining consolidated net income, in each case to the extentincluded in the calculation of consolidated net income of such Person for suchperiod in accordance with GAAP, but without duplication, plus (c) thesum of (i) any provision for income taxes, (ii) Interest Expense (includingcommitment, agency and letter of credit fees) and deferred financing costs,(iii) depreciation and amortization for such period, (iv) amortized debtdiscount for such period, (v) the amount of any deduction to consolidated netincome as the result of any grant to the management or employees of such Personor its Subsidiaries of any Stock or stock options, in each case to the extentincluded in the calculation of consolidated net income of such Person for suchperiod in accordance with GAAP, but without duplication, (vi) the accrual netof any payment in cash related to the net periodic post retirement benefits,(vii) losses from extraordinary items for such period, (viii) the non-cashportion of any non-recurring expenses, (ix) restructuring expenses related to,arising out of or in connection with the Chapter 11 Cases, (x) anynon-recurring employee severance expenses and non-recurring cash expensesrelated to plant reorganizations, not to exceed $5,000,000 in the aggregate,(xi) the non-cash portion of any expense or loss attributable to any interestrate agreement or arrangement permitted under Section 6.3(a)(xii)in any such case prior to the termination or expiration of such agreement orarrangement and (xii) $8,900,000 of non-cash reserves to be recorded atDecember 31, 2003 related solely to the implementation of a new reservemethodology for Inventory and Accounts and implementation of an initial accrualfor warranty obligations, plus or minus as applicable (d) theamount of cash received or expended in such period in respect of any amountwhich, under clauses (c)(viii) and (xii) above, was taken into account indetermining EBITDA for such period or any prior period.  For purposes of this definition, thefollowing items shall be excluded in determining consolidated net income of aPerson: (1) the income (or deficit) of any other Person accrued prior to thedate it became a Subsidiary of, or was merged or consolidated into, such Personor any of such Person’s Subsidiaries; (2) the income (or deficit) of any otherPerson (other than a Subsidiary) in which such Person has an ownershipinterest, except to the extent any such income has actually been received bysuch Person in the form of cash dividends or distributions; (3) theundistributed earnings of any Subsidiary of such Person to the extent that thedeclaration or payment of dividends or similar distributions by such Subsidiaryis not at the time permitted by the terms of any contractual obligation orrequirement of law applicable to such Subsidiary; (4) any restoration to incomeof any contingency reserve, except to the extent that provision for suchreserve was made out of income accrued during such period; (5) any write-up ofany asset; (6) any net gain from the collection of the proceeds of lifeinsurance policies; (7) any net gain arising from the acquisition of anysecurities, or the extinguishment, under GAAP, of any Indebtedness, of suchPerson; (8) in the case of a successor to such Person by consolidation ormerger or as a transferee of its assets, any earnings of such successor priorto such consolidation, merger or transfer of assets; and (9) any deferredcredit representing the excess of equity in any Subsidiary of such Person atthe date of acquisition of such Subsidiary over the cost to such Person of theinvestment in such Subsidiary.”

 

(c)  The definition of “Funded Debt” in Annex Ato the Credit Agreement is hereby amended to insert the following immediatelypreceding the final “.” of such definition “, but expressly excluding anyobligation attributable to any hedging agreement related to

 

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currency values orcommodity prices permitted under Section 6.3(a)(viii) or anyinterest rate agreement or arrangement permitted under Section 6.3(a)(xii)”.

 

(d)  The Minimum EBITDA numbers set forth in subsection(a)(iii)of Annex F (Section 6.10) to the Credit Agreement are herebyamended and restated in their entirety to read as follows:

 
| Fiscal Quarter ending  December 31, 2003  |   | $ | 48,000,000 |
|------------------------------------------------|--------|---|------------|
| Fiscal Quarter ending  March 31, 2004     |   | $ | 45,800,000 |
| Fiscal Quarter ending  June 30, 2004      |   | $ | 46,900,000 |
| Fiscal Quarter ending  September 30, 2004 |   | $ | 47,800,000 |
| Fiscal Quarter ending  December 31, 2004  |   | $ | 48,700,000 |
| Fiscal Quarter ending  March 31, 2005     |   | $ | 48,800,000 |
| Fiscal Quarter ending  June 30, 2005      |   | $ | 48,800,000 |
| Fiscal Quarter ending  September 30, 2005 |   | $ | 49,300,000 |
| Fiscal Quarter ending  December 31, 2005  |   | $ | 51,100,000 |
| Fiscal Quarter ending  March 31, 2006     |   | $ | 53,250,000 |
| Fiscal Quarter ending  June 30, 2006      |   | $ | 55,400,000 |
| Fiscal Quarter ending  September 30, 2006 |   | $ | 57,550,000 |
| Fiscal Quarter ending  December 31, 2006  |   | $ | 59,700,000 |
| Fiscal Quarter ending  March 31, 2007     |   | $ | 60,175,000 |
| Fiscal Quarter ending  June 30, 2007      |   | $ | 60,650,000 |
| Fiscal Quarter ending  September 30, 2007 |   | $ | 61,125,000 |
| Fiscal Quarter ending  December 31, 2007  |   | $ | 61,600,000 |
| Fiscal Quarter ending  March 31, 2008     |   | $ | 62,075,000 |
| Fiscal Quarter ending  June 30, 2008      |   | $ | 62,550,000 |
| Fiscal Quarter ending  September 30, 2008 |   | $ | 63,025,000 |
| Fiscal Quarter ending  December 31, 2008  |   | $ | 63,500,000 |

 

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

 

(a)  the execution, delivery and performance bythe Credit Parties of this Amendment have been duly authorized by all necessarycorporate action required on its part and this Amendment is a legal, valid and bindingobligation of the Credit Parties enforceable against the Credit Parties inaccordance 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 aproceeding in equity or at law); and

 

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

 

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(c)  Conditions To Effectiveness.  This Amendment shall be effective upon theexecution and delivery of this Amendment by the Requisite Lenders and theCredit Parties.

 

3.                                       ReferenceTo And Effect Upon The Credit Agreement.

 

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

 

(b)  The execution, delivery and effectiveness ofthis Amendment shall not operate as a waiver of any right, power or remedy ofAgent or any Lender under the Credit Agreement or any Loan Document, norconstitute a waiver or amendment of any provision of the Credit Agreement orany Loan Document, except as specifically set forth herein.  Upon the effectiveness of this Amendment,each reference in the Credit Agreement to “this Credit Agreement,”“hereunder,”  “hereof,” “herein” orwords of similar import shall mean and be a reference to the Credit Agreementas amended hereby.

 

4.                                       CostsAnd Expenses.  As provided in Section 11.3(a)of the Credit Agreement, the Borrowers agree to reimburse Agent for all fees,costs and expenses, including the reasonable fees, costs and expenses ofcounsel or other advisors for advice, assistance, or other representation inconnection with this Amendment.

 

5.                                       GoverningLaw.  THIS AMENDMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TOCONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.

 

6.                                       Headings.  Section headings in this Amendment areincluded herein for convenience of reference only and shall not constitute apart of this Amendment for any other purposes.

 

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

 

8.                                       Reaffirmationof Guaranties.  The Credit Partiessignatory hereto hereby reaffirm their Guaranties of the Obligations, takinginto account the provisions of this Amendment.

 

[Signature pagesfollow]

 

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IN WITNESS WHEREOF, theparties hereto have executed and delivered this Amendment as of the date firstwritten above.

 

 
|   | **LENDERS:**                               |
|--------|--------------------------------------------|
|   |                                       |
|   | **GENERAL ELECTRIC CAPITAL  CORPORATION,** |
|   | as Agent and Lender                        |
|   |                                       |
|   | /s/  Dennis W. Cloud                       |
|   |                                       |
|   | By:                                        | Dennis  W. Cloud |
|   |                                       | Duly  Authorized Signatory |
|   |                                       |

 

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|   | **BORROWERS:**                   |
|--------|----------------------------------|
|   |                             |
|   | **THERMADYNE INDUSTRIES, INC.**  |
|   |                             |
|   | By:                              | /s/  James H. Tate |
|   | Name:                            | James  H. Tate |
|   | Title:                           | Senior  Vice President |
|   |                             |
|   |                             |
|   | **THERMAL DYNAMICS CORPORATION** |
|   |                             |
|   | By:                              | /s/  James H. Tate |
|   | Name:                            | James  H. Tate |
|   | Title:                           | Senior  Vice President |
|   |                             |
|   |                             |
|   | **TWECO PRODUCTS, INC.**         |
|   |                             |
|   | By:                              | /s/  James H. Tate |
|   | Name:                            | James  H. Tate |
|   | Title:                           | Senior  Vice President |
|   |                             |
|   |                             |
|   | **VICTOR EQUIPMENT COMPANY**     |
|   |                             |
|   | By:                              | /s/  James H. Tate |
|   | Name:                            | James  H. Tate |
|   | Title:                           | Senior  Vice President |
|   |                             |
|   |                             |
|   | **C & G SYSTEMS, INC.**      |
|   |                             |
|   | By:                              | /s/  James H. Tate |
|   | Name:                            | James  H. Tate |
|   | Title:                           | Senior  Vice President |
|        |                                  |  |  |  |  |  |  |  |  |  |  |  |

 

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|   | **STOODY COMPANY**                 |
|--------|------------------------------------|
|   |                               |
|   | By:                                | /s/  James H. Tate |
|   | Name:                              | James  H. Tate |
|   | Title:                             | Senior  Vice President |
|   |                               |
|   |                               |
|   | **THERMAL ARC, INC.**              |
|   |                               |
|   | By:                                | /s/  James H. Tate |
|   | Name:                              | James  H. Tate |
|   | Title:                             | Senior  Vice President |
|   |                               |
|   |                               |
|   | **THERMADYNE INTERNATIONAL CORP.** |
|   |                               |
|   | By:                                | /s/  James H. Tate |
|   | Name:                              | James  H. Tate |
|   | Title:                             | Senior  Vice President |
|   |                               |
|   |                               |
|   | **PROTIP CORPORATION**             |
|   |                               |
|   | By:                                | /s/  James H. Tate |
|   | Name:                              | James  H. Tate |
|   | Title:                             | Senior  Vice President |
|        |                                    |  |  |  |  |  |  |  |  |

 

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The followingPersons are signatories to this Amendment in their capacity as Credit Partiesand not as Borrowers and acknowledge and agree to the foregoing (including,without limitation, Section 8 hereof) in such capacity.

 

 
|   | **THERMADYNE HOLDINGS CORPORATION** |
|--------|-------------------------------------|
|   |                                |
|   | By:                                 | /s/  James H. Tate |
|   | Name:                               | James  H. Tate |
|   | Title:                              | Senior  Vice President |
|   |                                |
|   |                                |
|   | **THERMADYNE RECEIVABLES, INC.**    |
|   |                                |
|   | By:                                 | /s/  James H. Tate |
|   | Name:                               | James  H. Tate |
|   | Title:                              | Senior  Vice President |
|   |                                |
|   |                                |
|   | **MECO HOLDING COMPANY**            |
|   |                                |
|   | By:                                 | /s/  James H. Tate |
|   | Name:                               | James  H. Tate |
|   | Title:                              | Senior  Vice President |
|   |                                |
|   |                                |
|   | **C&G SYSTEMS HOLDING, INC.**   |
|   |                                |
|   | By:                                 | /s/ James H. Tate |
|   | Name:                               | James H. Tate |
|   | Title:                              | Senior Vice President |
|        |                                     |  |  |  |  |  |  |  |

 

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The followingPersons is signatory to this Agreement in its capacity as a Credit Party solelywith respect to Section 6 of the Credit Agreement and not as a Borrower.

 

 
|   | **THERMADYNE WELDING PRODUCTS  CANADA LTD.** |
|--------|----------------------------------------------|
|   |                                         |
|   | By:                                          | /s/ James H. Tate |
|   | Name:                                        | James H. Tate |
|   | Title:                                       | Senior Vice President |
|        |                                              |  |  |  |

 

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