Exhibit 4.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of May
16, 2006, among Thermadyne Holdings Corporation, a Delaware corporation (the
"Company"), as issuer, the Subsidiary Guarantors listed on the signature pages
hereto (the "Guarantors"), as guarantors, and U.S. Bank National Association
(the "Trustee"), as trustee.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
heretofore entered into an Indenture, dated as of February 5, 2004 (the
"Original Indenture"), relating to the Company's outstanding 9 1/4% Senior
Subordinated Notes due 2014 (the "Securities");
WHEREAS, the Company has solicited consents from Holders of the
Securities to, among other things, certain amendments (the "Amendments") to the
Original Indenture which are set forth in this Supplemental Indenture;
WHEREAS, the Company has received consents to the Amendments from
Holders of a majority in aggregate principal amount of the outstanding
Securities; and
WHEREAS, pursuant to the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree for the equal and
ratable benefit of Holders of the Securities as follows:
ARTICLE I
AMENDMENTS
A. Section 1.01 of the Indenture will be amended by adding the
following defined terms:
"Excess Cash Flow" means, for the Company and its Restricted
Subsidiaries, for any period, the excess of EBITDA for such period over
the sum, without duplication, of (i) Consolidated Interest Expense for
such period, (ii) all federal, state, foreign and other income taxes
accrued or paid in cash (without duplication) by the Company and its
Restricted Subsidiaries during such period, (iii) capital expenditures
made in cash during such period, (iv) the amount by which the net
difference between (x) current assets, other than cash and cash
equivalents, and (y) current liabilities, other than the current amount
of Indebtedness outstanding under the Credit Agreement, in each case of
the Company and its Restricted Subsidiaries as of the last day of such
period, differs from the comparable amount calculated as of the day
immediately preceding the first day of such period (or, with respect to
the difference determined as of December 31, 2006, to the comparable
amount as of June 30, 2006), (v) cash payments attributable to
investments in, or acquisitions of, a Related Businesses or the
purchase of any part of the assets thereof, (vi) the aggregate amount
of all scheduled, mandatory and voluntary prepayments, repayments,
redemptions or purchases of Indebtedness of the Company or any
Restricted Subsidiary made during such Excess Cash Flow Period that
result in the permanent reduction of such Indebtedness or related
facility (other than prepayments, repayments, redemptions or purchases
made with the proceeds of Indebtedness Incurred to Refinance the
Indebtedness prepaid, repaid, redeemed or purchased during such Excess
Cash Flow Period), and (vii) the aggregate amount of contributions by
the Company to any underfunded tax-qualified pension plan and other
post-retirement benefits of the Company during such Excess Cash flow
Period; provided, however, that the amount permitted to be deducted
pursuant to this clause (vii) shall be limited to the amount of
contributions deductible for Federal income tax purposes and only to
the extent the plan and other post-retirement benefits are underfunded.
Within 105 days of the end of the applicable Excess Cash Flow Period,
the Company shall circulate to the Holders a reasonably detailed
calculation of the Excess Cash Flow for the applicable Excess Cash Flow
Period and a statement of the Company's intended application thereof.
"Excess Cash Flow Amount" means, for any Excess Cash Flow
Period, an amount equal to 75% of the Excess Cash Flow for such Excess
Cash Flow Period.
"Excess Cash Flow Period" means (i) initially, the period from
July 1, 2006 to December 31, 2006 and (ii) thereafter, the twelve-month
period ending on the last day of each succeeding calendar year.
"GECC Credit Facility" means that certain Second Amended and
Restated Credit Agreement, dated November 22, 2004, among Thermadyne
Industries, Inc. and the other borrowers party thereto, General
Electric Capital Corporation, as amended through the Fourteenth
Amendment thereto and in effect on May 9, 2006.
B. Section 4.02 of the Original Indenture shall be amended to
insert the following paragraph at the end thereof:
"Notwithstanding the foregoing, any report, document or
information referred to in this Section 4.02 that the Company would
have been required (but for this sentence) to file with the SEC or
furnished to the Trustee, the Holders or any other Person at any time
before June 15, 2006 shall not be required to be so filed or furnished
prior to June 15, 2006."
C. A new Section 4.14 will be added to the Indenture as
follows:
"SECTION 4.14 Excess Cash Flow Payment. (a) If the Company has
in excess of $2.0 million of Excess Cash Flow for any Excess Cash Flow
Period, within 105 days after the end of such Excess Cash Flow Period,
the Company shall apply an amount equal to the Excess Cash Flow Amount
to either:
(1) permanently prepay, repay, redeem or purchase
Senior Indebtedness of the Company; or
(2) subject to the limitations set forth in Section
6.3(b) of the GECC Credit Facility or the limitations
contained in any other Senior Indebtedness so long as such
limitations are no more restrictive than Section 6.3(b) of the
GECC Credit Facility, make an offer to the Holders of the
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Securities to purchase Securities pursuant to an Excess Cash
Flow Offer (as defined below).
Each Offer to purchase Securities pursuant to this Section 4.14 (each,
an "Excess Cash Flow Offer") shall be made to each Holder of Securities
outstanding at the time of such offer, shall offer to purchase
Securities at a purchase price of 101% of their principal amount and
shall remain open for a period of not less than 30 days (or any longer
period as is required by law).
(b) If the Company is required to make an Excess Cash Flow
Offer pursuant to this Section 4.14, no later than 105 days after the
end of the applicable Excess Cash Flow Period, the Company will mail a
notice of such Excess Cash Flow Offer to each Holder stating:
(1) that the Company is offering to purchase
Securities in an amount equal to the Excess Cash Flow Offer
Amount (determined after giving effect to any prepayments,
repayments, redemptions or purchases of Senior Indebtedness of
the Company made pursuant to paragraph (a)(1) of this Section
4.14) at a purchase price in cash equal to 101% of the
principal amount thereof on the date of purchase, plus accrued
and unpaid interest, if any, to the date of purchase (subject
to the right of Holders of record on the relevant date to
receive interest on the relevant interest payment date);
(2) the purchase date (which shall be no earlier than
30 days nor later than 60 days from the date such notice is
mailed); and
(3) the instructions, as determined by the Company,
consistent with this Section 4.14, that a Holder must follow
in order to tender its Securities.
(c) If the aggregate purchase price of the Securities tendered
in connection with any Excess Cash Flow Offer exceeds the Excess Cash
Flow Amount allotted to their purchase, the Company will select the
Securities to be purchased on a pro rata basis but in denominations of
$1,000 principal amount or multiples thereof. If the aggregate purchase
price of the Securities tendered in connection with any Excess Cash
Flow Offer is less than the Excess Cash Flow Amount allotted to their
purchase, the Company shall be permitted to use the portion of the
Excess Cash Flow Amount that is not applied to the purchase of
Securities in connection with such Excess Cash Flow Offer for general
corporate purposes. Upon completion of an Excess Cash Flow Offer, the
Excess Cash Flow Amount with respect thereto will be deemed to be
reduced by the aggregate amount of such Excess Cash Flow Offer.
(d) Holders electing to have Securities purchased pursuant to
an Excess Cash Flow Offer shall be required to surrender the
Securities, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior
to the purchase date. Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one
Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election
to have such Securities purchased.
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(e) On the purchase date with respect to any Excess Cash Flow
Offer, all Securities purchased by the Company pursuant to such Excess
Cash Flow Offer shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued
and unpaid interest, if any, to the Holders entitled thereto.
(f) The Company will comply, to the extent applicable, with
Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Securities pursuant to
an Excess Cash Flow Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of the
covenant described hereunder, the Company will comply with the
applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.14 by virtue of its
compliance with such securities laws or regulations."
D. Section 6.01(4) of the Indenture will be amended to read in
its entirety as follows:
"(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11 or 4.14 (other than a failure to purchase
Securities when required under Section 4.06, 4.10 or 4.14) and such failure
continues for 30 days after the notice specified below;"
ARTICLE II
MISCELLANEOUS
A. Definitions. The Original Indenture together with this Supplemental
Indenture are sometimes collectively referred to in this document as the
"Indenture." For the avoidance of doubt, references to any "Section" of the
"Indenture" refer to such Section of the Original Indenture as supplemented and
amended by this Supplemental Indenture. All capitalized terms which are used
herein and not otherwise defined herein are used herein with the same meanings
as in the Original Indenture. If a capitalized term is defined in the Original
Indenture and this Supplemental Indenture, the definition in this Supplemental
Indenture shall apply to the Indenture and the Securities.
B. Effect of Supplemental Indenture; Effectiveness and Operation. This
Supplemental Indenture shall be effective upon execution hereof by the Company,
the Subsidiary Guarantors and the Trustee. From and after such execution, the
Amendments set forth herein shall be deemed to have modified the applicable
articles or sections, or portions thereof, or clauses, of the Original
Indenture. In all other respects, the Original Indenture is confirmed by the
parties hereto as supplemented by the terms of this Supplemental Indenture. In
the event that there is a conflict or inconsistency between the Original
Indenture and this Supplemental Indenture, the provisions of this Supplemental
Indenture shall control.
C. Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Supplemental Indenture by the Trust Indenture
Act of 1939, as amended (the "TIA"), the required provision shall control. If
any provision of this Supplemental Indenture modifies any TIA provision that may
be so modified, such TIA provision shall be deemed to apply to this Supplemental
Indenture as so modified. If any provision of this Supplemental Indenture
excludes any TIA provision that may be so excluded, such TIA provision shall be
excluded from this Supplemental Indenture.
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D. Trustee. The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
E. Governing Law. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of law principles thereof.
F. Severability. In case any provisions in this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
G. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
COMPANY:
THERMADYNE HOLDINGS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
SUBSIDIARY GUARANTORS:
C&G SYSTEMS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
C&G SYSTEMS HOLDING, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
MECO HOLDING COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
PROTIP CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
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STOODY COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
THERMADYNE INDUSTRIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
THERMADYNE INTERNATIONAL CORP.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
THERMAL ARC, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
THERMAL DYNAMICS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
TWECO PRODUCTS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
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XXXXXX EQUIPMENT COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary & General Counsel
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