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EXCHANGE AGENCY AGREEMENT
This Exchange Agency Agreement (this "Agreement") is entered into as
of August 4, 1998, between IBJ Xxxxxxxx Bank & Trust Company, a New York
banking corporation, as Exchange Agent (the "Agent"), and Thermadyne Holdings
Corporation, a Delaware corporation (the "Company").
The Company proposes to exchange $1,000 principal amount of the
Company's 12 1/2% Senior Discount Debentures due 2008 (the "Exchange
Debentures") in exchange (the "Exchange Offer") for an equal aggregate
principal amount of the Company's outstanding 12 1/2% Senior Discount
Debentures due 2008 (the "Old Debentures") to the holders thereof (the
"Holders"), pursuant to the Prospectus dated as of August 4, 1998 (the
"Prospectus") and the accompanying Letter of Transmittal. The Exchange Offer
will terminate at 5:00 p.m. New York City time on September 3, 1998, unless
extended by the Company in its sole discretion (the "Expiration Date"). The
New Debentures are to be issued by the Company pursuant to the terms of an
Indenture dated as of May 22, 1998 (the "Indenture"), between the Company and
IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Trustee").
Subject to the provisions hereof, the Company hereby appoints and the
Agent hereby accepts the appointment as Agent for the purposes of receiving,
accepting for delivery and otherwise acting upon tenders of the Old Debentures
in accordance with the form of Letter of Transmittal attached hereto (the "LT")
and with the terms and conditions set forth herein and under the caption "The
Exchange Offer" in the Prospectus.
1. The Agent has received the following documents in connection
with its appointment:
(a) the LT;
(b) a form of Notice of Guaranteed Delivery; and
(c) the Prospectus.
2. The Agent is authorized and hereby agrees to act as follows:
(a) to address, and deliver by hand or next day courier,
a complete set of the exchange offer documents
including, but not limited to, the Prospectus, the
LT, the Notice of Guaranteed Delivery and a
self-addressed envelope prepared by the Agent, to
each person who, prior to the Expiration Date,
becomes a registered holder of Old Debentures
promptly after such person becomes a registered
holder of Old Debentures;
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(b) to receive all tenders of Old Debentures made
pursuant to the Exchange Offer and stamp the LT with
the day, month and approximate time of receipt;
(c) to examine each LT and Old Debenture received to
determine that all requirements necessary to
constitute a valid tender have been met. The Agent
shall be entitled to rely on the electronic messages
sent by the Depository Trust Company ("DTC") in
accordance with DTC's Automated Tender Offer Program
to the Agent's account at DTC from the DTC
participants listed on the DTC position listing
provided to the Agent;
(d) to take such actions necessary and appropriate to
correct any irregularity or deficiency associated
with any tender not in proper order;
(e) to follow instructions give by Xxxxxxx X. Xxxxxx,
Xxxxx X. Xxxx and Xxxxxxxxx X. Xxxxxxxxx, each an
officer of the Company, or such other person or
persons as may be designated by the Company in
writing, with respect to the waiver of any
irregularities or deficiencies associated with any
tender;
(f) to hold all valid tenders subject to further
instructions from Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxx or
Xxxxxxxxx X. Xxxxxxxxx, each an officer of the
Company;
(g) to render a written report to the Company and Weil,
Gotshal & Xxxxxx LLP, in the form of Exhibit A
attached hereto, on each business day during the
Exchange Offer and promptly confirm, by telephone,
the information contained therein to Xxxxxxxxx X.
Xxxxxxxxx at the Company at (000) 000-0000 and
Xxxxxxx X. Xxxxxx at Xxxx, Gotshal & Xxxxxx LLP at
(000) 000-0000.
(h) to follow and act upon any written amendments,
modifications or supplements to these instructions,
any of which may be given to the Agent by Xxxxxxx X.
Xxxxxx, Xxxxx X. Xxxx or Xxxxxxxxx X. Xxxxxxxxx, each
an officer of the Company, or such other person or
persons as they shall designate in writing;
(i) to return to the presenters, in accordance with the
provisions of the LT, any Old Debentures that were
not received in proper order and as to which the
irregularities or deficiencies were not cured or
waived;
(j) in the event the Exchange Offer is consummated, to
deliver authenticated Exchange Debentures to
tendering Holders, in accordance with the
instructions of such Holders specified in the
respective LT's, as soon as practicable after receipt
thereof;
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(k) to determine that all endorsements, guarantees,
signatures, authorities, stock transfer taxes (if
any) and such other requirements are fulfilled in
connection with any request for issuance of the
Exchange Debentures in a name other than that of the
registered owner of the Old Debentures;
(l) to deliver to, or upon the order of, the Company all
Old Debentures received under the Exchange Offer,
together with any related assignment forms and other
documents; and
(m) subject to other terms and conditions set forth in
this Agreement to take all other actions reasonable
and necessary in the good faith judgment of the
Agent, to effect the foregoing matters.
3. The Agent shall:
(a) have no duties or obligations other than those
specifically set forth herein;
(b) not be required to refer to any documents for the
performance of its obligations hereunder other than
this Agreement, the LT and the documents required to
be submitted with the LT; other than such documents,
the Agent will not be responsible or liable for any
terms, directions or information in the Prospectus or
any other document or agreement unless the Agent
specifically agrees thereto in writing;
(c) not be required to act on the directions of any
person, including the persons named above, unless the
Company provides a corporate resolution to the Agent
or other evidence satisfactory to the Agent of the
authority of such person;
(d) not be required to and shall make no representations
and have no responsibilities as to the validity,
accuracy, value or genuineness of (i) the Exchange
Offer, (ii) any certificates, LT's or documents
prepared by the Company in connection with the
Exchange Offer or (iii) any signatures or
endorsements, other than its own;
(e) not be obligated to take any legal action hereunder
that might, in its judgment, involve any expense or
liability, unless it has been furnished with
reasonable indemnity by the Company;
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(f) be able to rely on and shall be protected in acting
on the written or oral instructions with respect to
any matter relating to its actions as Agent
specifically covered by this Agreement, of any
officer of the Company authorized to give
instructions under paragraphs 2(e) or 2(h) above;
(g) be able to rely on and shall be protected in acting
upon any certificate, instrument, opinion, notice,
letter, telegram or any other document or security
delivered to it and believed by it reasonably and in
good faith to be genuine and to have been signed by
the proper party or parties;
(h) not be responsible for or liable in any respect on
account of the identity, authority or rights of any
person executing or delivering or purporting to
execute or deliver any document or property under
this Agreement and shall have no responsibility with
respect to the use or application of any property
delivered by it pursuant to the provisions hereof;
(i) be able to consult with counsel satisfactory to it
(including counsel for the Company or staff counsel
of the Agent) and the advice or opinion of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
accordance with advice or opinion of such counsel;
(j) not be called on at any time to advise, and shall not
advise, any person delivering an LT pursuant to the
Exchange Offer as to the value of the consideration
to be received;
(k) not be liable for anything which it may do or refrain
from doing in connection with this Agreement except
for its own gross negligence, willful misconduct or
bad faith;
(l) not be bound by any notice or demand, or any waiver
or modification of this Agreement or any of the terms
hereof, unless evidenced by a writing delivered to
the Agent signed by the proper authority or
authorities and, if the Agent's duties or rights are
affected, unless the Agent shall give its prior
written consent thereto;
(m) have no duty to enforce any obligation of any person
to make delivery, or to direct or cause any delivery
to be made, or to enforce any obligation of any
person to perform any other act; and
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(n) have the right to assume, in the absence of written
notice to the contrary from the proper person or
persons, that a fact or an event by reason of which
an action would or might be taken by the Agent does
not exist or has not occurred without incurring
liability for any action taken or omitted, or any
action suffered by the Agent to be taken or omitted,
in good faith or in the exercise of the Agent's best
judgment, in reliance upon such assumption.
4. The Agent shall be entitled to compensation as set forth in
Exhibit B attached hereto.
5. The Company covenants and agrees to reimburse the Agent for,
indemnify it against, and hold it harmless from any and all reasonable costs
and expenses (including reasonable fees and expenses of counsel and allocated
cost of staff counsel) that may be paid or incurred or suffered by it or to
which it may become subject without gross negligence, willful misconduct or bad
faith on its part by reason of or as a result of its compliance with the
instructions set forth herein or with any additional or supplemental written or
oral instructions delivered to it pursuant hereto, or which may arise out of or
in connection with the administration and performance of its duties under this
Agreement. The Company agrees to promptly notify the Agent of any extension of
the Expiration Date.
6. This Agreement shall be construed and enforced in accordance
with the laws of the State of New York and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and
assigns of the parties thereto. The parties agree to submit to the exclusive
jurisdiction of the federal or state courts located in the State of New York,
New York County.
7. Unless otherwise expressly provided herein, all notices,
requests, demands and other communications hereunder shall be in writing, shall
be delivered by hand, facsimile or by first class mail, postage prepaid, shall
be deemed given when received and shall be addressed to the Agent and the
Company at the respective addresses listed below or to such other addresses as
they shall designate from time to time in writing, forwarded in like manner.
If to the Agent, to: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Reorganization Operations Dept.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with copies to: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Finance Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company: Thermadyne Holdings Corporation
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: R. Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the day and year first written above.
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
THERMADYNE HOLDINGS CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
SAMPLE REPORT
Date:
---------------------------------------
Report Number:
------------------------------
As of Date:
---------------------------------
Ladies & Gentlemen:
As Exchange Agent for the Exchange Offer dated ____________, 1998, we hereby render the following report:
Principal Amount previously received:
-----------------------------------------------------
Principal Amount received today:
-----------------------------------------------------
Principal Amount received against Guaranteed Deliveries:
-----------------------------------------------------
Principal Amount withdrawn today:
-----------------------------------------------------
TOTAL PRINCIPAL AMOUNT RECEIVED TO DATE:
-------------------------------------------------------------
RECAP OF PRINCIPAL AMOUNT REPRESENTED BY GUARANTEES
Guarantees previously outstanding:
-----------------------------------------------------
Guarantees received today:
-----------------------------------------------------
Guarantees settled today:
-----------------------------------------------------
Guarantees withdrawn today:
-----------------------------------------------------
Guarantees outstanding:
-----------------------------------------------------
TOTAL PRINCIPAL AMOUNT AND GUARANTEES OUTSTANDING:
=====================================================
Very truly yours,
Reorganization Operations Dept.
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EXHIBIT B
AGENT'S FEES AND EXPENSES
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