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EXHIBIT 10.34
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of July 17, 1996,
among THERMADYNE HOLDINGS CORPORATION, a Delaware corporation, (the
"Borrower"), the lending institutions party to the Credit Agreement referred to
below on the date hereof and immediately before giving effect to this Amendment
(the "Existing Banks") and BANKERS TRUST COMPANY, as Agent (the "Agent"), and
each of the lenders listed on Schedule A hereto (the "New Banks). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
WITNESSETH:
WHEREAS, the Borrower, the Existing Banks and the Agent are
parties to an Amended and Restated Credit Agreement, dated as of June 25, 1996
(the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. Bankers Trust Company (the "Assignor Bank") hereby
sells and assigns to each of the New Banks without recourse and without
representation or warranty (other than as expressly provided herein), and each
New Bank hereby purchases and assumes from the Assignor Bank, that interest in
and to the Assignor Bank's rights and obligations under the Credit Agreement as
of the date hereof which in the aggregate represents such New Bank's pro rata
share (for each such New Bank, its "Pro Rata Share") as set forth on, and in
respect of the credit facilities listed on, Schedule B hereto (calculated after
giving effect to this Amendment), and such Pro Rata Share represents all of the
outstanding rights and obligations under the Credit Agreement that are being
sold and assigned to each New Bank, including, without limitation, in the case
of any assignment of all or any portion of the Total Commitment, all rights and
obligations with respect to such New Bank's Pro Rata Share of such Total
Commitment, including all such rights and obligations with respect to such New
Bank's Pro Rata Share of outstanding Revolving Loans, Swingline Loans and
Letters of Credit After giving effect to this Amendment, each of the Existing
Banks" and New Banks" Commitment will be as set forth on Schedule C hereto.
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2. In accordance with the requirements of Section
12.04(b) of the Credit Agreement, on the First Amendment Effective Date (as
defined below), (i) the Credit Agreement shall be amended by deleting Annex I
thereto in its entirety and by inserting in lieu thereof a new Annex I in the
form of Schedule C hereto and (ii) the Borrower agrees that, promptly after the
First Amendment Effective Date, it will issue an appropriate Revolving Note to
each Bank in conformity with the requirements of Section 1.05 of the Credit
Agreement.
3. On and after the First Amendment Effective Date,
Annex II to the Credit Agreement shall be amended by deleting Annex II thereto
in its entirety and by inserting in lieu thereof a new Annex II in the form of
Schedule D hereto. For purposes of Section 12.03 of the Credit Agreement, the
address of each Bank shall be as set forth on Schedule D hereto, or at such
other address as such Bank may hereafter notify the other parties to the Credit
Agreement in writing.
4. On and after the First Amendment Effective Date,
Section 1(d) of Annex XII to the Credit Agreement shall be amended by (a)
inserting the phrase "Amended and Restated" immediately following the phrase
"as defined in the" therein and (b) inserting the phrase", as may be amended,
restated or modified from time to time" immediately following the date "June
25, 1996" therein.
5. On and after the First Amendment Effective Date,
Section 1.09(v) of the Credit Agreement shall be amended by deleting the words
"Interest period" therein and inserting in lieu thereof the words "Interest
Period".
6. On and after the First Amendment Effective Date,
Section 7.01(d) of the Credit Agreement shall be amended by deleting the word
"project" therein and inserting in lieu thereof the word "projected".
7. On and after the First Amendment Effective Date,
Section 8.02(d) of the Credit Agreement shall be amended by replacing the
phrase "Indebtedness owing by a Subsidiary Guarantor to a Foreign Subsidiary"
with the phrase "Indebtedness owing to a Subsidiary Guarantor or the Borrower
by a Foreign Subsidiary".
8. On and after the First Amendment Effective Date,
Section 8.16 of the Credit Agreement shall be amended by inserting the phrase
"to be greater than" immediately following the phrase "for such fiscal year"
therein.
9. On and after the First Amendment Effective Date,
Section 8.17 of the Credit Agreement shall be amended by deleting the date
"September 30, 1997" therein and inserting in lieu thereof the date "September
30, 1996".
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10. On and after the First Amendment Effective Date,
Section 11.07 of the Credit Agreement shall be amended by (a) inserting the
phrase "(determined as if there were no Defaulting Banks)" immediately
following the phrase "as used in determining the Required Banks" in the first
sentence therein and (b) replacing the second sentence therein in its entirety
with the following sentence:
"To the extent any Defaulting Bank fails to indemnify the Agent
pursuant to the immediately preceding sentence, such Defaulting Bank
shall not be entitled to receive any portion of any payment or other
distribution hereunder until the Agent shall have been reimbursed for
the aggregate amount not paid by such Defaulting Bank under this
Section 11.07."
11. On and after the First Amendment Effective Date,
Section 12.01(iv) of the Credit Agreement shall be amended by inserting "(a)"
immediately following the phrase "or by reason of," therein.
12. The Assignor Bank (i) represents and warrants that it
is the legal and beneficial owner of the interest being sold and assigned by it
hereunder and that such interest is free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of its Subsidiaries of any of its obligations under the Credit
Agreement or the other Credit Documents to which it is a party or any other
instrument or document furnished pursuant thereto.
13. Each of the New Banks (i) confirms that it has
received a copy of the Credit Agreement and the other Credit Documents,
together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment; (ii) agrees that it
will, independently and without reliance upon the Agent, the Existing Banks or
any other Bank 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 the Credit Agreement; (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Credit Documents as are delegated to
the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank and (v) to the extent legally
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entitled to do so, agrees that it will promptly submit all applicable forms
required by Section 4.04(b) of the Credit Agreement.
14. The Assignor Bank and each of the New Banks hereby
agree that all amounts accrued with respect to the Commitments or the Loans
prior to the delivery by such New Bank of the amount referred to in clause (ii)
of Section 19 of this Amendment shall be for the account of the Assignor Bank,
and that all such amounts accrued after the delivery of such amounts referred
to in clause (ii) of such Section 19 shall be for the account of such New Bank
based upon its Pro Rata Share.
15. In accordance with Section 12.04(b) of the Credit
Agreement, on and as of the date upon which each of the New Banks delivers the
amounts referred to in clause (ii) of Section 19 of this Amendment, each New
Bank shall become a "Bank" under, and for all purposes of, the Credit Agreement
and the other Credit Documents.
16. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
17. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agent.
18. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
19. Subject to Section 20 of this Amendment, this
Amendment shall become effective on the date (the "First Amendment Effective
Date") when (i) the Borrower, each Existing Bank and each New Bank shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the same to
the Agent at its Notice Office and (ii) each New Bank shall have delivered to
the Agent, for the accounts of the Assignor Bank an amount equal to such New
Banks relevant Pro Rata Share of the outstanding Revolving Loans.
20. Notwithstanding Section 19 of this Amendment, if for
any reason any New Bank shall not have (i) signed a counterpart hereof and
delivered the same to the Agent at its Notice Office and (ii) delivered to the
Agent an amount equal to such New Bank's Pro Rata Share of the outstanding
Revolving Loans, in each case on or prior to July 17, 1996, then, if each
Existing Bank agrees, this Amendment shall become effective notwithstanding
such failure, provided that (x) Schedules A, B, C and D hereto shall be
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modified to delete any such New Bank, and such New Bank's relevant Pro Rata
Share shall be reallocated among the Existing Banks in such manner as the
Existing Banks shall agree and (y) the signature pages of this Amendment shall
be deemed revised to delete such New Bank's name therefrom.
21. From and after the First Amendment Effective Date,
all references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
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IN WITNESS WHEREOF, EACH OF THE PARTIES HERETO HAS CAUSED A
COUNTERPART OF THIS AMENDMENT TO BE DULY EXECUTED AND DELIVERED AS OF THE DATE
FIRST ABOVE WRITTEN.
THERMADYNE HOLDINGS CORPORATION
BY /s/ XXXXX X. XXXX
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NAME: XXXXX X. XXXX
TITLE: SENIOR VICE PRESIDENT & CFO
BANKERS TRUST COMPANY,
Individually and as Agent
BY /s/ XXXXXXXX XXXXX
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NAME: XXXXXXXX XXXXX
TITLE: VICE PRESIDENT
THE BANK OF NEW YORK
Individually, and as Documentation
Agent
BY /s/ XXXX X. XXXXXXX
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NAME: XXXX X. XXXXXXX
TITLE: VICE PRESIDENT
FIRST SOURCE FINANCIAL LLP, BY
FIRST SOURCE FINANCIAL, INC.,
ITS AGENT/MANAGER
BY /s/ XXXX X. XXXXXXX
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NAME: XXXX X. XXXXXXX
TITLE: SENIOR VICE PRESIDENT
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
BY /s/ XXXXXXX X. XXXXX
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NAME: XXXXXXX X. XXXXX
TITLE: VP-GROUP MANAGER
BY /s/ XXXXX X. XXXXXXXXXX
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NAME: XXXXX X. XXXXXXXXXX
TITLE: ASSISTANT TREASURER
THE FIRST NATIONAL BANK OF BOSTON
BY /s/ XXXXX F.X. XXXXXXXX
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NAME: XXXXX F.X. XXXXXXXX
TITLE: VICE PRESIDENT
XXXXXX FINANCIAL INC.
BY /s/ XXXXX X. XXXXXX
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NAME: XXXXX X. XXXXXX
TITLE: ASSISTANT VICE PRESIDENT
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
BY /s/ XXXXXX XXXXXXXX
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NAME: XXXXXX XXXXXXXX
TITLE: AUTHORIZED SIGNATORY
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BANK OF SCOTLAND
BY /s/ XXXXXXXXX X. XXXXXXXX
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NAME: XXXXXXXXX X. XXXXXXXX
TITLE: VICE PRESIDENT BANK OF SCOTLAND
SOCIETE GENERALE
BY /s/ XXXX X. XXXXXX
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NAME: XXXX X. XXXXXX
TITLE: VICE PRESIDENT
THE FIRST NATIONAL BANK OF CHICAGO
BY /s/ XXXXXX X. XXXXXXXX
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NAME: XXXXXX X. XXXXXXXX
TITLE: VICE PRESIDENT
CITIBANK, N.A.
BY /s/ XXXXXXXX X. XXXX
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NAME: XXXXXXXX X. XXXX
TITLE: ATTORNEY-IN-FACT
THE BANK OF NOVA SCOTIA
BY /s/ F.C.H. XXXXX
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NAME: F.C.H. XXXXX
TITLE: SENIOR MANAGER LOAN OPERATION
ABN AMRO BANK, NV
BY /s/ XXXXXXX X. CZECH
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NAME: XXXXXXX X. CZECH
TITLE: VICE PRESIDENT
BY /s/ XXXXXXXXX X. XXXXXX
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NAME: XXXXXXXXX X. XXXXXX
TITLE: VICE PRESIDENT
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
BY /s/ XXXXXX X. XXXXXXXX
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NAME: XXXXXX X. XXXXXXXX
TITLE: VICE PRESIDENT
BY /s/ XXXX X. XXXXXXX
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NAME: XXXX X. XXXXXXX
TITLE: ASSISTANT VICE PRESIDENT
BANK OF HAWAII
BY /s/ XXXXXX X. XXXXXX
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NAME: XXXXXX X. XXXXXX
TITLE: VICE PRESIDENT
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BANQUE PARIBAS
BY /s/ XXXXX X. XXXXX
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NAME: XXXXX X. XXXXX
TITLE: VICE PRESIDENT
BY /s/ XXXXXXXX X. XXXX
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NAME: XXXXXXXX X. XXXX
TITLE: VICE PRESIDENT
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
BY /s/ XXXXX XXXXX
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NAME: XXXXX XXXXX
TITLE: VICE PRESIDENT
GIROCREDIT BANK AG DER SPARKASSEN,
GRAND CAYMAN ISLANDS BRANCH
BY /s/ XXXX XXXXXXX
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NAME: XXXX XXXXXXX
TITLE: VICE PRESIDENT
BY /s/ XXXXXXX XXXXX
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NAME: XXXXXXX XXXXX
TITLE: FIRST VICE PRESIDENT
NATIONAL CITY BANK
BY /s/ XXXXXX X. XXXXXXX
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NAME: XXXXXX X. XXXXXXX
TITLE: VICE PRESIDENT
NIPPON CREDIT BANK, LTD.
BY /s/ XXXXX X. XXXX
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NAME: XXXXX X. XXXX
TITLE: ASSISTANT VICE PRESIDENT
FALCON 94 LIMITED
BY /s/ XXXX X.X. XXXXXX
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NAME: XXXX X.X. XXXXXX
TITLE: DIRECTOR
BANK POLSKA KASA OPIEKI, S.A.,
NEW YORK BRANCH
BY /s/ HUSSEIN B. EL-XXXXX
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NAME: HUSSEIN B. EL-XXXXX
TITLE: VICE PRESIDENT
